Nine State Attorneys General Opposed to Chemical Safety Improvement Act

California Attorney General Kamala Harris and Attorneys General from eight other states sent a letter to Congress earlier this week to voice their opposition to the proposed Chemical Safety Improvement Act (CSIA), or S.1009, in its current form.  The CSIA was proposed last month as an amendment to the Toxic Substances Control Act (TSCA).

The Attorneys General wrote to express their “deep concerns” about the “unduly broad preemption language” in the CSIA, which they believe will “seriously jeopardize public health and safety by preventing states from acting to address potential risks of toxic substances and from exercising state enforcement powers.”

According to the letter, the CSIA will preempt states from enforcing existing laws or adopting new laws regulating chemicals that the U.S. Environmental Protection Agency (EPA) has designated “high priority,” months or even years before federal regulations take effect.  States will also be barred from adopting and enforcing new laws regulating “low-priority” chemicals.

The CSIA also eliminates the ability of states to adopt requirements identical to federal standard and therefore enforce federal standards under state law, the letter stated, and revokes state authority to ban in-state use of chemicals that the EPA has regulated.

While the CSIA does contain provisions for states to apply for waivers from preemption, the waivers are temporary and in some cases expire automatically, before federal regulation comes into effect.  In the letter, the Attorneys General expressed concern that obtaining a waiver may be impossible because of the requirement that a state must certify a “compelling local interest.”

“Amendments to TSCA should preserve the existing authority of the states to enforce federal law; continue to allow states to adopt and enforce their own chemicals laws without restriction where the federal government has not acted or will not be acting; and protect the ability of the states to obtain a waiver to enact stricter standards,” the letter concluded.

The letter also included examples of existing state regulations that might be preempted by the CSIA.  They included:

• California’s Proposition 65, which requires companies offering products for sale in California containing toxic chemicals to first provide consumers with a health hazard warning
• Maryland’s regulation of cadmium in children’s jewelry
• Vermont’s ban on lead in consumer products
• Several states’ bans on the sale of certain mercury-added products
• Several states’ bans on or regulations of certain flame retardants

The letter was signed by Attorneys General from California, Connecticut, Delaware, Hawaii, Massachusetts, Maryland, Oregon, Vermont, and Washington.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.