The NCSL Blog


By Melanie Condon

Who knew Bisphenol A or Diethylaluminum Chloride could be so exciting?

Efforts to reform the Toxic Substances Control Act (TSCA), the federal law that regulates such chemicals, has caused quite a reaction on Capitol Hill.

NCSL has been working with members of Congress and their staff for nearly two years on different iterations of legislation that would protect citizens from toxic chemicals while limiting state pre-emption as much as possible. So far, efforts to revise the law have been moving slowly.

On March 10, U.S. Senators Tom Udall (D-N.M.) and David Vitter (R-La.) released the Frank R. Lautenberg Chemical Safety for the 21st Century Act, named after the late Senator Lautenberg who dedicated his congressional career to environmental protection and efforts to reform TSCA. 

The Udall/Vitter bill gives the Environmental Protection Agency (EPA) authority to regulate chemicals based on their potential danger. In certain instances it pre-empts state action on “high-priority” dangerous chemicals, if EPA has made a final determination as to the safety risk of the chemical. It’s not all bad news for states, however, as the senators’ most recent version of the bill grandfathers in any state legislation in effect before Jan. 1, 2015. Additionally, while in past TSCA reform bills states were pre-empted from taking action on both low and high priority chemicals, as deemed by EPA, this bill allows states to act on low priority chemicals and any other chemicals on which the EPA does not take final action. While not perfect, NCSL recognizes the strides the senators have taken to compromise with states.

U.S. Senator Barbara Boxer (D-Calif.) has been ardently against any state pre-emption in TSCA reform legislation. California has some of the most robust chemical protection laws in the country and she is rightly concerned that those laws could be invalidated. Boxer, along with U.S. Senator Ed Markey (D-Mass.) released their own TSCA reform bill March 12, to the surprise of many. The bill, known as the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, emphasizes banning asbestos and other chemicals, especially those particularly harmful to children. It also would not pre-empt state laws, and allows states to regulate chemicals simultaneous to any federal regulation.  

What about the House? Last Congress, U.S. Representative John Shimkus (R-Ill.) introduced a discussion draft of legislation that contained massive pre-emption of existing state laws to provide federal uniformity to chemical regulation. It is unclear whether he plans to reintroduce his working draft in the 114th Congress, or as subcommittee chairman, hold a hearing in the Environment and the Economy Subcommittee, which has jurisdiction over this issue. NCSL strongly opposed Shimkus’ draft in the last Congress and state Senator Michael Moore (D-Mass.) testified against it on NCSL’s behalf.

One thing we all can agree on is that TSCA needs to be reformed, and while we may be on the edge of historic action, the devil still remains in the details.

Melanie Condon is policy specialist for the Natural Resources and Infrastructure Committee in the Washington, D.C. office.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.