Under the Supremacy Clause of the U.S. Constitution, state law and policy (or law and policy of local subdivisions of states, acting under state law) that conflicts with federal law must yield to the exercise of Congress's powers. The Toxic Substances Control Act (TSCA), which defines the authority of the Environmental Protection Agency (EPA) to assess and regulate chemical substances in U.S. commerce, takes an intermediate approach. Overview of TSCA

An overview of TSCA as a whole is necessary to place TSCA's preemption provisions in context. TSCA establishes a chemical regulatory program allowing EPA to review new chemical substances before they enter U.S. commerce, as well as significant new uses of chemical substances as designated by EPA (§5); to regulate chemicals in commerce that EPA determines to present unreasonable risks of injury to human health or the environment, using the least burdensome requirements that adequately protect against such risks (§6); and to require testing on chemicals that may present an unreasonable risk, or that merit testing by virtue of certain high production volume or high exposure potential criteria (§4). TSCA's core provisions (Title I) have not been significantly amended since the law's enactment in 1976. So long as EPA has not specifically addressed a chemical under TSCA, there is no preemption of state regulation of that same chemical. EPA has issued testing rules for several hundred chemicals under Section 4. These few EPA rules have not preempted many state or local requirements. The proposals differ in various respects from one another, however, including with respect to preemption. In the 114 th Congress, S. 697 , the Frank R. Lautenberg Chemical Safety for the 21 st Century Act, was introduced on March 10, 2015. Following a markup, an amended version of S. 697 was ordered to be reported out of the committee on April 28, 2015, on a 15-5 vote with bipartisan support. S. 697 was reported with an amendment in the nature of a substitute on June 17, 2015, and placed on the Senate legislative calendar. An alternate proposal, S. 725 , the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, has not been ordered to be reported out of committee. S. 725 would eliminate express preemption from TSCA entirely, and is not included in this report's comparison. In the House of Representatives, a discussion draft entitled the TSCA Modernization Act of 2015 was released in early April, and a hearing was held in the Subcommittee on Environment and the Economy of the Committee on Energy and Commerce on April 14, 2015. The TSCA Modernization Act of 2015 was formally introduced, with some amendments, on May 26, 2015, as H.R. The bill, as amended, was debated on the House floor and passed the House on June 23, 2015, on a 398-1 vote. S. 697 generally takes a more comprehensive and detailed approach to amending TSCA. H.R. H.R. While doing so in different ways, both bills would also generally expand EPA's testing authority; impose certain requirements pertaining to scientific standards; modify TSCA's confidentiality provisions; expand TSCA's fee provisions; and make certain other changes and additions to other sections of the law—although as noted above, S. 697 would make substantially more changes and additions. Table 1 below provides a side-by-side comparison of the preemption provisions and other provisions related to the state-federal relationship in these two bills. Table 1 first describes limits on the universe of state or local rules that would potentially be subject to preemption by EPA actions by comparing the bills' overall preemption scope, exceptions, and savings clauses. Table 1 then compares the scope and timing of preemption (subject to the exceptions) based on various EPA actions under each proposal. Here, there are somewhat larger structural differences between the bills: for example, S. 697 preempts new state restrictions while a chemical is undergoing assessment by EPA, while H.R. 2576 has somewhat broader preemption on the basis of EPA actions on new chemicals and significant new uses of chemicals. Both bills would preempt state requirements after EPA either imposed requirements on a chemical found to present an unreasonable risk, or after EPA determined that a chemical did not present an unreasonable risk. 2576 , which are retained from current TSCA.
The Toxic Substances Control Act (TSCA) was enacted in 1976 to govern the regulation of chemical substances in U.S. commerce. Its core provisions have not been significantly amended since that time. Under TSCA, the Environmental Protection Agency (EPA) has implemented a chemicals management program over the past four decades. EPA has issued a very limited number of risk management rules under TSCA to restrict chemicals it has found to present unreasonable risks of injury to human health or the environment. Meanwhile, states and, in a few cases, local subdivisions of states have enacted an increasing number of their own chemical programs and restrictions.
The federal preemption doctrine derives from the Supremacy Clause of the U.S. Constitution, which provides that federal laws "shall be the supreme Law of the Land." Congress can expressly preempt state and local laws by statute, and the scope of preemption is determined by Congress's intent. Because TSCA preemption is based on EPA's issuance of certain types of rules and orders targeting particular chemicals (subject to exceptions), state and local chemical programs and restrictions—for the most part targeting chemicals not subject to EPA risk management rules—generally have not faced preemption under TSCA. As legislative proposals to amend TSCA have been discussed in recent years, one major topic of debate has been the extent to which the scope of TSCA's preemption of state chemical regulations should be preserved, expanded, or reduced.
This report provides a brief background on preemption in current TSCA. The report then provides a side-by-side comparison of the preemption provisions of House and Senate bills in the 114th Congress to amend TSCA. S. 697, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, was ordered to be reported out of the Senate Environment and Public Works Committee on April 28, 2015, on a 15-5 vote. It was reported, as amended, on June 17, 2015, and placed on the Senate Legislative Calendar. H.R. 2576, the TSCA Modernization Act of 2015, was first released as a discussion draft on April 7, 2015. It was introduced as H.R. 2576 on May 26, 2015, and passed the House as amended on June 23, 2015, on a 398-1 vote.
Both bills would expand EPA's authority to regulate chemicals in a number of ways, similar in some respects, although S. 697 is a longer and more detailed bill that would make more changes to TSCA's language than H.R. 2576. The preemption provisions of the two bills have many similarities as well, including in their overall structure, which retains TSCA's approach of only preempting state and local laws on a chemical-by-chemical basis after EPA action on a chemical. Both bills would also exclude from preemption state and some local chemical requirements in effect as of August 1, 2015, and any state or local requirements arising from long-standing state chemical laws such as California's Proposition 65. However, the bills have a number of differences with respect to preemption. For example, S. 697 would preempt new restrictions on a chemical while EPA prepared a safety assessment on that chemical, a period of up to several years; H.R. 2576 may impose somewhat broader preemption on the basis of EPA actions for new chemicals and new uses than S. 697. Various other similarities and differences between the two bills regarding preemptive EPA actions, exceptions, exemptions, and waivers are also compared.
A third proposal to amend TSCA, S. 725, the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, would eliminate express TSCA preemption entirely. S. 725 is not included in this report's comparison.