Potential for Proposed Fed. Legislation to Preempt Calif. Law Causes Concern

California officials have expressed concerns over some provisions of the proposed Chemical Safety Improvement Act (CSIA), which was introduced last month in Congress as a series of reforms to the Toxic Substances Control Act.  A representative of California’s Department of Toxic Substances Control (DTSC) stated these concerns in a letter to the Office of California Senator Dianne Feinstein.

The main area of concern, according to the letter, is the expanded authority that the U.S. Environmental Protection Agency (EPA) would have to preempt state and local chemical regulations.

If passed, CSIA would  prohibit states from enforcing existing chemical regulations after EPA issues their safety determination, even when state regulations are consistent with EPA’s findings.  The CSIA would also preclude states from issuing new prohibitions or restrictions on chemical substances that the EPA’s schedule of safety assessments identifies as “high priority.” 

“States should be allowed to…enforce their regulations until the Administrator for US EPA promulgates a rule establishing necessary restrictions,” the letter stated.  “States should not be barred from imposing regulations on chemical substances for which they have already evaluated the safety and determined that prohibitions or restrictions are necessary to protect public health or environment merely because the Administrator has released a schedule…”

The letter also stated a need for clarification “regarding what constitutes a ‘prohibition or restriction on the manufacture, processing, or distribution in commerce or use of a chemical substance’” as types of state actions intended to be preempted under the proposed Act.  California’s health hazard warning requirement on products containing chemicals known to the State of California to cause cancer or reproductive harm “could be considered a restriction on the use of a chemical substance, which is far too broad an interpretation of this phrase,” the letter said.

The Act does contain criteria for waivers from the preemption provisions; DTSC expressed concern that “the bar has been set too high” for waivers.  The letter called the criteria “nearly impossible to meet.”

See below for the letter in full.

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.