Myth vs. Fact: Second Panel of “Strengthening Public Health Protections by Addressing Toxic Chemical Threats”
July 31, 2013
Preemption & Safety Standard
Myth: The CSIA will tie EPA in knots. The CSIA's safety standard and preemption provision puts us in worse shape. - Mr. Ken Cook, President and Co-Founder, Environmental Working Group (paraphrased)
Fact: The CSIA will never preempt the traditional state roles of regulating water quality, air quality, waste treatment, or disposal and does not preempt wholesale state regulatory programs. The CSIA's preemption provisions are narrow in scope and do not preempt or eliminate any existing state laws. The bill provides clarity about the limited cases in which EPA decisions would take precedence over state regulations in order to promote a coherent national approach to chemical regulation and facilitate national commerce. The CSIA also provides the state with the ability to seek a waiver from EPA.
Fact: On the safety standard, the CSIA improves and strengthens the safety standard and ensures chemical safety is a shared responsibility between industry and regulators. The bill also requires that EPA base safety determinations only on health and environmental considerations, an improvement over today's TSCA. The CSIA improves TSCA's safety standard by emphasizing that a chemical should be safe for its intended use. The CSIA is based on the principle that ensuring the safety of chemicals is a shared responsibility of manufacturers, the government, those who use chemicals as ingredients in other products, and those who sell chemical products.
Myth: The lack of deadlines and the numerous requirements that EPA has under the bill in establishing the evaluative framework will just slow down EPA from actually evaluating chemicals - perhaps by design. - Mr. Daniel Rosenberg, Senior Attorney, Natural Resource Defense Council (paraphrased)
Fact: The CSIA will require greater accountability from EPA when it comes to meeting deadlines and gives the Agency flexibility to determine reasonable timeframes depending on the circumstances. The CSIA requires that EPA publish deadlines and justify cases when more time is needed to complete tasks. EPA deadlines in prior legislative proposals such as the Safe Chemicals Act would be impossible to meet, given the work load imposed on the Agency. Experience under other federal environmental statutes such as the Clean Air and Water Acts demonstrates that substantial litigation results when EPA misses statutorily prescribed deadlines. Deadline suits have little beneficial role in a statute designed to ensure that the Agency assesses chemical substances for their health and environmental effects.
Myth: All private rights of action would be preempted to a degree unseen under any other federal law. - Mr. Thomas McGarity, Professor of Law, University of Texas at Austin (paraphrased)
Fact: The CSIA will only apply to state legislative or regulatory actions regarding a specific chemical when EPA has completed a safety determination. The CSIA will not preempt state tort claims, inhibit private causes of action, enable EPA safety determinations to dictate the outcome of toxic tort cases, or preempt judicial rulings.
The question of whether a chemical substance meets the newly-created safety standard under the CSIA is not determinative of the outcome of tort suits. In a tort suit, the question is whether the defendant violated a common-law duty or an applicable legislative or regulatory obligation. The safety standard under the CSIA has no direct relationship to common-law duties or legislative or regulatory obligations other than those under TSCA.