Federal regulation of chemical safety was static for 40 years between the passage in 1976 of the Toxic Substances Control Act (TSCA) and its amendment in 2016 by the Lautenberg Chemical Safety Act. The limited regulatory powers and activity of the U.S. EPA under the original TSCA left a gap which was partly filled by a variety of state laws on chemical use and safety, both in industry and in consumer products. The National Conference of State Legislatures has some information on state laws on their website:
The Lautenberg Act let stand some state regulation under laws passed before April 22, 2016, notably California’s Proposition 65 which was approved by voters in 1986. California has been a bellwether in chemical regulation, with a major chemical sector in an economy larger than that of many nations as well as a fairly progressive government and a tradition of citizen initiative activism.
New regulation by states after the TSCA amendments is still possible under the provisions of the act. New state action will be limited in the following ways:
- States may not increase restrictions on a substance which is currently under EPA review as a high-priority chemical, without an EPA waiver.
- States may not enforce restrictions on a substance that meets the EPA safety standard, without an EPA waiver.
- States may enforce their existing rules if a chemical does not meet the EPA safety standard, but federal rulemaking has not been completed.
- Once federal rulemaking is completed, states can enforce their laws provided that they are consistent with federal rules.
A recent state law that does not conform to federal rules is superseded by federal regulation under the Lautenberg Act. States will have some power to regulate chemicals outside the purview of the Lautenberg Act. If a substance is not designated as “high priority” by the EPA, states may restrict it. States may apply for a waiver for their rules that do not conform to EPA regulation. They may also take action which is allowed by other federal laws, for example the Clean Air Act or the Clean Water Act.
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