tr?- . I ?7 or OFFICE OF "fl-1E. ATTORNEY GENERAL BRIAN E. NELSON GENERAL GUNSEL March 5, 2015 The Honorable Barbara Boxer Ranking Member, Senate Environment and Public Works Committee 112 Hart Senate Of?ce Building Washington, DC. 20510 RE: State Concerns with ?Frank R. Lautenberg Chemical Safety for the 21st Century Act? Dear Senator Boxer: I write to convey the concerns of the California Attorney General regarding the proposed Frank R. Lautenberg Chemical Safety for the 21st Century Act as proposed in a Working Draft dated March 4, 2015. Our of?ce has previously described to you and the Committee our compelling interest in preserving California?s role in public health and environmental protection through its green chemistry program, Proposition 65 enforcement efforts, and Air Resources Board regulations, among others, during any referm of the federal Toxic Substances Control Act (TSCA). (See attached letter of June 11, 2013, and testimony of July 31, 2013, regarding the Chemical Safety Improvement Act (CSIA), S. 1009, as introduced in the last congressional sessiOn.) Our review of the March 4, 2015 Working Draft of chemicals safety legislation causes us to reiterate a number of serious concerns with respect to its excessive displacement of states from the promulgation and enforcement of chemicals health and safety regulations. We here restrict our comments to those matters pertaining to the regulatory and enforcement relatiOnship between the states and the US. Environmental Protection Agency (EPA). Although we have had less than 24 hours to review the Working Draft, we have signi?cant objections to three items: (1) the preemption of state authority to enact new protections with respect to high priority chemicals years before federal regulations take effect; (2) the unduly burdensome standards applicable to state waivers from preemption; and (3) the elimination of state authority to replicate federal standards in state statute. Of these, item (1) presents the most'signifieant and absent amendment insurmountable concern. 300 Scum Sparse - SUITE 1702 - Los ANGELES, CALM-oasis 90013 PHONE-T (213) 397-2737 STATE or CALIFORNIA OFFICE OF THE ATTORNEY GENERAL BRIAN E. NFLsox GENERAL 1. Premature preemption of state authority to el_1act new protections with respect to high priority chemicals We have previously expressed our grave concern with any regulatory scheme in which state requirements are displaced before federal ones take effect, a phenomenon known as ?regulatory void preemption.? This timing issue is particularly critical with respect to chemicals that the states (through their regulatory actions) and EPA (through formal prioritization screening) have both determined are ?high priority? based on the health or enviromnental threats they pose. For existing state laws restricting high priority chemicals, the Working Draft sensibly ties the timing of preemption to the ?effective date of the applicable action . . . taken by the Administrator.? (See subsection emphasis added). For any state chemicals restrictions, however such as those ferthCOming under Cal ifornia?s green chemistry initiative the Working Draft preempts state restrictions woefully prematurely: on ?the date on which the Administrator commences a safer assessment under section (Subsection 18(b); emphasis added.) This asymmetry is conceptually illogical, and is deeply troubling given the enormous time lag certain to occur between the beginning of an EPA assessment and the effective date of any federal safety rule. Proposed subsection 6(a) of the Act permits EPA up to three years to conduct a safety assessment, up to two more years to promulgate a final regulation, and an additional two years to extend the rulemaking process. Proposed subsection 6(d) thereupon requires only that the regulation specify a compliance deadline that is ?as soon as practicable.? Thus, the draft allows for more than a seven-year nan between the commencement ofa safety assessment and the effective date of an enforceable federal regulation, an interval during which any new state regulation is inexplicably displaced with reSpect to those chemicals presenting greatest exposure concerns. In California?s view, this constitutes poor public policy that undermines the fundamental health and environmental protection purposes of CA reform. Furthermore, although the Working Draft purports to spare from preemption state regulation of chemicals that are designated ?low priority? by EPA Or are as-yct-undesignated, this apparent regulatory room for states appears largely illusory. Given the process set in motion by proposed subsection 4A(b)(9) in which states must notify EPA of even ?proposed? actions I Timing?of-preemption concerns also exist with respect to states? ability to control pollution in environmental media, such as air, given the drafting ambiguity in subsection 300 SOUTH SPRING STREET - SUITE 1702 Les ANGELES, 90013 PHONE (213) 897-2737 and). r! - STATE or OFFICE OF THE GENERAL- Bxliw E. NELSON GENERAL COUNSEL on low priority chemicals, whereupon EPA is required to conduct a prioritization screening of state-regulated chemicals under any one of a number of scenarios it appears highly likely that EPA would, upon state noti?cation, redesignate many such chemicals as high priority, commence a risk assessment, and thereupon take 7-plus years to promulgate an enforceable regulation. These would be years during which, yet again, health-protective state regulation would be precluded. It thus appears that the Draft will ultimately restrict states? ability to regulate nearly all TSCA chemicals in commerce, even in the absence offinnt', enforceable ?derai regulations. Our of?ce accordingly believes that any preemption of state authority with respect to high priority chemicals must be postponed until the effective date of federal action. 2. Unduly burdensome waiver-from-preemption provision The preemption problem above is compounded by the Working Draft?s perpetuation of the unduly burdensome test for a state seeking an EPA waiver from preemption, by requiring, in subsection identi?cation of a compelling ?local? interest justifying state- level chemicals laws. As we have previously explained, risk from exposure to a particular toxic chemical is generally likely to be similar from one location to another, particularly with respect to the consumer product (rather than industrial) exposures that are the object ofmuch California state regulation. In this respect, the ?local interests? prong of the Clean Air Act waiver provision is largely irrelevant as a model for a TSCA waiver, because, for example, there is no consumer? product analog to a federal nonattaimnent area for ozone. It is unclear why the existing TSCA waiver provision, which balances state interests against the potential burdens of nonuniformity on commerce, is insuf?cient to achieve any legitimate objectives with respect to harmonizing state and federal regulation to the maximum extent feasible. 3. Elimination of state authority to co?enforce federal standards The states have long supplemented enforcement capacity under numerous environmental and consumer protection statutes including the Consumer Product Safety Act, multiple titles of the Federal ood, Drug and Cosmetics Act, and the Federal Insecticide, Fungicide and Rodenticide Act by enacting and enforcing mirror image state laws that embody 300 Soon: Sparse STREET - SUITE 17?02 - Los Assess, Gun-roams 90013 - PHONE (213) 897-273? F.4- - - r3 ?11. it?. :5 STATE or CAUFORMA OFFICE. OF THE. ATTORNEY GENERAL BRIAN GENERAL COUNSEL federal substantive standards. Existing TSCA section follows this conventional, well-tested enforcement model in providing that states ?may . . . establish or continue in effect? any requirement ?identical to the requirement prescribed by the Administrator.? To our knowledge, there has never been any problem identi?ed with states? exercise of this form of co-enforcement authority under TSCA. lnexplicably, then, subsection 18(d)( of the Working Draft expressly eliminates states? co-enforcement ability, by precluding states from adopting chemicals regulations that ?are already required by the Administrator under section 5 or We believe this provision is ill advised, in that it deprives EPA of signi?cant nationwide enforcement backup just when its TSCA workload is poised to expand a reduction in resources and partnership capacity that we do not understand EPA to have requested. As a ?nal matter, the drafting of subsection 18(e) of the preemption provisions in the Working Draft (titled ?Preservation of Certain State Laws?) is confounding, and must be clari?ed to prevent confusion and needless litigation. We understand subsection to grandfather in torn actions taken pursuant to Califomia?s Clean Drinking Water and Toxics Enforcement Act (?Proposition 65?) (among other pre?2003 state laws), which addresses a signi?cant concern that California identi?ed in prior bill iterations. To the extent that subsection purports to contemplate some additional Sphere of non-preempted state activity, however, we cannot discern the nature of the state activity intended to be spared. It is unclear what this section accomplishes if it is restricted to ?actions? taken prior to anuarv l, 2015: any meaningful ?preservation of state law? would clearly exempt from preemption continued implementation and enforcement of laws enacted prior to passage of the Act. Further, this subsection appears to contradict subsection which also governs existing state enactments yet signi?cantly limits their reach. If the intention in Subsection 18(e) is to preserve states' ongoing ability to implement laws enacted prior to January 1, 2015, the signi?cant drafting tension between these subsections must be resolved. 300 Scorn STREET - Sun's I702 - Les Axostss, CALIFORMA 90013 - Plioxs (213) 897-2737 mun "in. 1l57* STATE or CALIFORNIA OFFICE OF THE ATTORNEY GENERAL BRIAN E. NELSON GENERAL COUNSEL In sum, while our of?ce fully supports the goal of a more robust federal regulatory program, we do not believe this should be accomplished through the unprecedented and unnecessary evisceration of state regulatory authority to ?ll Critical safety and enforcement gaps that is contemplated in the Working Draft. The problems identi?ed in this letter are ?xablc, but they must be ?xed for California to support the present TSCA reform effort. Thank you for your consideration of our comments. Please feel free to contact me if you have any questions or need further information. Sincerely, Brian Nelson General Counsel Fer KAMALA D. HARRIS Attorney General cc: The Honorable Diane Feinstein 300 SOUTH SPRENG STREET - SUITE 1702 - Los ANGELES, CALIFORNIA 90013 - (213) 897-273? mm.