On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act (“FRL-21”).  Heralded as much needed reform to the Toxic Substances Control Act (“TSCA”, pronounced “tos- kah”), FRL-21 has sparked spirited debate over acceptable limits of federal preemption of state law in the environmental regulatory context.

Enacted 40 years ago, TSCA has proven to be a wholly ineffective tool for the United States Environmental Protection Agency (“EPA”) to oversee the tens of thousands of chemicals used in products and the workplace. In 1976 there were approximately 62,000 chemicals in the marketplace subject to EPA regulation, but because of the onerous conditions placed on EPA, as of today only 5 of those chemicals have been banned from use and only a tiny fraction of the others have been studied for health and safety.  FRL-21 frees EPA to increase significantly the number of chemicals subject to its oversight.

The cost of the expansion of EPA’s jurisdiction over those chemicals comes at the expense of state jurisdiction. Because the old TSCA was so ineffective, states stepped into the breach and played a prominent role in the evaluation and oversight of toxic chemicals.  For instance, in 1989 Massachusetts passed into law the Toxics Use Reduction Act, M.G.L. c. 211, (“TURA”).  TURA augments TSCA by requiring users of relatively large amounts of toxic chemicals to report usage and develop a plan to reduce toxic waste.  Through TURA, Massachusetts was able to reduce the generation of toxic waste by 50% by 1998.  TURA and certain other existing state laws will not be subject to preemption as FRL-21 grandfathers any state law enacted prior to August 31, 2003.  State laws enacted after that date are subject to preemption.

Many states are concerned that FRL-21’s more centralized regulatory system will fare no better than the original TSCA and prevent states from stepping into the regulatory void. FRL-21 strictly limits when states can enact new laws or continue enforcement of existing laws.  Also, once EPA takes final action on a chemical it has evaluated, states are prohibited from taking action on those chemicals unless they receive a waiver, which turns out to be a formidable obstacle.  In order to obtain a waiver, states need to: 1) demonstrate a compelling need; 2) put forth a well-developed scientific basis; or 3) take action on a chemical within 18 months of EPA beginning risk evaluation of a chemical.

FRL-21 advocates contend that it sends clear and consistent signals to industry and the marketplace. However, there is a preemption battle brewing on the horizon, and clarity seems a long way off.  It is more likely that states race to enact more stringent toxic chemical laws before EPA does, either during the initial 18 month evaluation period or under the penumbra of other environmental laws and regulations, such as the Clean Water Act or greenhouse gas emissions. Attorneys General from 16 states, including Massachusetts, plan to push the preemption battle, placing the ultimate control of TSCA in doubt for the foreseeable future (see TSCA Letter).