According to an Inside EPA Weekly Report, states are considering options with respect to how to amend state preemption language in the bipartisan Senate bill to reform the Toxic Substances Control Act, or TSCA, to make space for existing state programs, such as those in California that officials are urging lawmakers to protect, while still allowing for strong EPA oversight in other states.
Without a carve-out for California's landmark Prop. 65 labeling program and its green chemistry regulations that are slated to be issued in October, the Senate bill, S. 1009, may not be able to win support from the state's delegation, including Senate environment committee Chairman Barbara Boxer (D-CA), who must give her consent for the bill to be heard in front of the committee.
Among the options that state officials are considering, according to one state source, is the Clean Air Act's process by which California and other states can adopt stricter limits on mobile source emissions if they win EPA approval. State officials are also considering proposing the approach lawmakers took in 2008 when they allowed California to set strict limits on lawn equipment and personal watercraft while EPA crafted a rule for the rest of the country.
"There are pluses and minuses of" creating exceptions for the state, the source noted. However, the source adds, "All I can say is it's been done before."
California officials, including the state's Department of Toxic Substances Control, or DTSC, and its two senators, are concerned that S. 1009, which is a bipartisan agreement between the late-Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA), the ranking Republican on the environment committee, would preempt California's programs.
While many states have taken actions to require labeling or placed bans on products containing certain substances, Prop. 65 is the most expansive of the efforts. In addition, the green chemistry rules, which are expected to detail how regulators should assess safer alternatives to existing substances, is being viewed as a model for any federal program.
As currently crafted, the bill would allow EPA to preempt any state rules limiting or banning the use of chemicals in certain applications once EPA has made a safety determination -- though it allows states to petition EPA for a waiver if "compelling state or local conditions" warrant it, though no waiver can burden commerce.
DTSC and California Attorney General Kamala Harris (D) say the current waiver provision is unworkable as it sets too high a burden of proof EPA to grant waivers.
In a June 11 letter to Boxer, Harris echoed earlier calls from DTSC to revise the waiver provision, saying "states should have a reasonable opportunity to obtain a waiver to enforce a higher degree of protection within their borders." She suggested that the state continues to favor provisions in current law, as well as in S. 696 -- a bill that Lautenberg, Boxer and other Democrats have previously supported -- that allows EPA to approve stricter requirements as long as state rules do not make it impossible to also comply with federal law or unduly burden interstate commerce.
Harris also suggested that the bill should provide a way for states to be co-enforcers of federal standards, as the Resource Conservation and Recovery Act does. "Enforcement of all new prohibitions or restrictions on chemical substances is wholly dependent on the resources, priorities, and discretion" of EPA and the Justice Department, she wrote.
The state's two senators have indicated they want to address their home-state officials' concerns. Sen. Dianne Feinstein (D-CA) says she could not support a measure that would set back chemical safety regulations in California. "It's fair to say I have significant concerns about the bill because it preempts state law," Feinstein said. "California laws regulating the safety of chemicals are significant."
The article is available in its entirety from InsideEPA.com.