Preemption in Proposed Amendments to the Toxic Substances Control Act (TSCA): Side-by-Side Analysis of S. 697 and H.R. 2576

Summary

The Toxic Substances Control Act (TSCA) was enacted in 1976 to govern the regulation of chemical substances in U.S. commerce. Its core provisions have not been significantly amended since that time. Under TSCA, the Environmental Protection Agency (EPA) has implemented a chemicals management program over the past four decades. EPA has issued a very limited number of risk management rules under TSCA to restrict chemicals it has found to present unreasonable risks of injury to human health or the environment. Meanwhile, states and, in a few cases, local subdivisions of states have enacted an increasing number of their own chemical programs and restrictions.

The federal preemption doctrine derives from the Supremacy Clause of the U.S. Constitution, which provides that federal laws “shall be the supreme Law of the Land.” Congress can expressly preempt state and local laws by statute, and the scope of preemption is determined by Congress’s intent. Because TSCA preemption is based on EPA’s issuance of certain types of rules and orders targeting particular chemicals (subject to exceptions), state and local chemical programs and restrictions—for the most part targeting chemicals not subject to EPA risk management rules—generally have not faced preemption under TSCA. As legislative proposals to amend TSCA have been discussed in recent years, one major topic of debate has been the extent to which the scope of TSCA’s preemption of state chemical regulations should be preserved, expanded, or reduced.

This report provides a brief background on preemption in current TSCA. The report then provides a side-by-side comparison of the preemption provisions of House and Senate bills in the 114th Congress to amend TSCA. S. 697, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, was ordered to be reported out of the Senate Environment and Public Works Committee on April 28, 2015, on a 15-5 vote. It was reported, as amended, on June 17, 2015, and placed on the Senate Legislative Calendar. H.R. 2576, the TSCA Modernization Act of 2015, was first released as a discussion draft on April 7, 2015. It was introduced as H.R. 2576 on May 26, 2015, and passed the House as amended on June 23, 2015, on a 398-1 vote.

Both bills would expand EPA’s authority to regulate chemicals in a number of ways, similar in some respects, although S. 697 is a longer and more detailed bill that would make more changes to TSCA’s language than H.R. 2576. The preemption provisions of the two bills have many similarities as well, including in their overall structure, which retains TSCA’s approach of only preempting state and local laws on a chemical-by-chemical basis after EPA action on a chemical. Both bills would also exclude from preemption state and some local chemical requirements in effect as of August 1, 2015, and any state or local requirements arising from long-standing state chemical laws such as California’s Proposition 65. However, the bills have a number of differences with respect to preemption. For example, S. 697 would preempt new restrictions on a chemical while EPA prepared a safety assessment on that chemical, a period of up to several years; H.R. 2576 may impose somewhat broader preemption on the basis of EPA actions for new chemicals and new uses than S. 697. Various other similarities and differences between the two bills regarding preemptive EPA actions, exceptions, exemptions, and waivers are also compared.

A third proposal to amend TSCA, S. 725, the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, would eliminate express TSCA preemption entirely. S. 725 is not included in this report’s comparison.