State Regulatory Authority under the New Toxic Substances Control Act

Two years ago, the Toxic Substances Control Act (TSCA) was significantly overhauled with bipartisan support in Congress, and with substantial support from the chemical industry. The EPA has now begun implementing the “New TSCA,” also known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576), which was officially signed into law by President Obama in 2016 (15 U.S.C. 2601 et seq.).

One of the most controversial elements of the overhaul was the scope of federal preemption and the continued role of the states in chemical regulation. In the absence of robust federal chemical regulation under the Old TSCA, many states became active participants in chemical regulation. Under the New TSCA, California and other states were remarkably successful in preserving existing state regulatory schemes, such as California’s Proposition 65, and preserving the ability to act on chemicals the EPA has not addressed. This article addresses the areas of retained state authority under the New TSCA and the continued action by states in the arena of chemical regulation.

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