February 8, 2016 The Honorable Mitch McConnell Senator Majority Leader 317 Russell Senate Office Building Washington, DC 20510 The Honorable Paul Ryan Speaker of the U.S. House of Representatives 1233 Longworth House Office Building Washington, DC 20515 The Honorable Harry Reid Senate Minority Leader 522 Hart Senate Office Building Washington, DC 20510 The Honorable Nancy Pelosi Democratic Leader of the U.S. House of Representatives 233 Cannon House Office Building Washington, DC 20515 The Honorable James Inhofe Chairman Senate Committee on Environment and Public Works 205 Russell Senate Office Building Washington, DC 20510 The Honorable Fred Upton Chairman House Committee on Energy and Commerce 2125 Rayburn House Office Building Washington, DC 20515 The Honorable Barbara Boxer Ranking Member Senate Committee on Environment and Public Works 456 Dirksen Senate Office Building Washington, DC 20510 The Honorable Frank Pallone Ranking Member House Committee on Energy and Commerce 2322A Rayburn House Office Building Washington, DC 20515 Dear Senators McConnell, Reid, Inhofe, and Boxer and Representatives Ryan, Pelosi, Upton, and Pallone, As state environmental commissioners, we write to urge that any enrolled bill amending the Toxic Substances Control Act (TSCA) preserves states’ authority. Our mission is to protect citizens and the environment from toxic chemicals, especially when no federal safeguards exist to address such threats. We applaud your bipartisan commitment and actions by members to work with states to craft TSCA reform legislation that includes a well-functioning State-Federal Partnership. 1 We offer these comments as state regulators who will be called on to implement many of these provisions if this legislation is passed and signed by the President. Our future work depends on striking the right balance to strengthen the U.S. Environmental Protection Agency’s (U.S. EPA) abilities and funding, without limiting state powers in creating and enforcing needed protections. For decades, states have appropriately exercised their authority to reduce risks to the public from dangerous chemicals. In many instances, states are leading the way in the use of science and taking necessary actions to reduce hazards and risks from such chemicals as lead in jewelry, toxic flame retardants, copper in brake pads, and certain phthalates in toys and children’s products. The final legislation voted on by both houses of Congress and presented to the President should respect and preserve states’ rights to act in the public’s interest. This can be accomplished by addressing the following issues with language from each bill: Timing of Preemption The House-passed H.R. 2576 section 7 takes a prudent approach to the timing of any preemption by allowing states to create and enforce protections until U.S. EPA issues a final rule. In contrast to the House language, Section 17 of the Senate-passed amendment to H.R. 2576 employs a more convoluted and uncertain approach for states on preemption, particularly with respect to timing and waivers. For example, this section as written could still eliminate the authority of states to adopt needed safeguards for up to four years without providing for any federal protections during this period. This goes against public interest and undermines the states’ ability to protect people from chemicals identified as being among the most dangerous substances in production and use. The Senate bill does include a requirement for EPA to set compliance deadlines. Eliminating the regulatory pause in the Senate bill and setting deadlines for implementation and compliance will minimize regulatory gaps. Striking this provision will also reduce administrative costs and lengthy rulemaking that unnecessarily burdens both the states and the EPA. States must have authority to act until final EPA action and compliance dates are achieved. Waiver and Exemption Provisions The states strongly recommend preserving the approach to waivers provided for under existing TSCA, as is done in the House bill, with the addition of a requirement and deadline for EPA to act on any waiver request. The House-passed bill’s reliance on TSCA’s existing provision for waiving preemption is a balanced approach and is similar to traditional federal environmental law. States can preserve safeguards that provide a “significantly higher degree of protection” than federal law and that do not “through difficulties in marketing, distribution, or other factors, unduly burden interstate commerce.” 2 As written, the waiver process in the Senate bill will incur costs to the states and the EPA, since each action requires state and federal staffing to manage the waiver process. We also note that taking the pause preemption out of the Senate bill, as discussed above, will eliminate or reduce the need for the “required exemptions” waiver and subsequent determinations by EPA under the section of the bill amending TSCA with Section 18(f)(2). If components of the Senate waiver approach are retained in the bill’s amendment of TSCA with paragraph 18(f)(1), the states suggest eliminating the need to show “compelling conditions” as required in TSCA Section 18(f)(1)(A), as it is proposed to be amended; documented conditions should be sufficient. Further, language revisions are needed under amended TSCA subparagraph 17(f)(1)(D) to authorize states’ reliance on the best available science to support a waiver decision that allows states to protect the health of their people from dangerous chemicals. Preservation of Certain Laws and States Actions Both bills support the preservation of existing state statutes and requirements, including provisions for grandfathering. To provide additional clarity, the states recommend retaining the Senate language on grandfathering in Section 17 that amends existing TSCA with Section 18(e)(1). After the words “action taken,” we recommend inserting the phrase “or requirement imposed” in both places where these words appear in subparagraphs (A) and (B). Furthermore, Congress needs to include language from the Senate that explicitly protects states’ actions related to monitoring, disclosure, and related activities in the bill; this language is present in the Senate bill under Section 17 (adding new TSCA Section 18(d)(1)(ii)) and should be retained. Preservation of all state air quality, water quality, and waste treatment or disposal laws is also necessary under Section 17 (adding new TSCA Section 18(d)(1)(iii)). While both bills contain language that preserves Proposition 65, which the people in California enacted as a ballot initiative in 1986 to inform the public about chemicals known to cause cancer, birth defects or other reproductive harm, amended TSCA Section 18(e)(1) of the Senate-passed amendment contains clearer text on this issue than the House-passed bill. Significant New Uses of Chemicals Language in the House and Senate bills raises significant concerns because it could be broadly construed to allow preemption when U.S. EPA issues a notification under section 5. We urge Congress to clarify that preemption should occur when EPA issues a final section 6 rule. U.S. EPA’s mere notification of interest in a toxic chemical should not be used as an argument to preclude states’ authority to protect the health of their citizens from such chemicals. 3 Thank you for your consideration of these comments. Please let us know if you have any questions. Sincerely, Matthew Rodriquez, Secretary California Environmental Protection Agency Maia Bellon, Director Washington Department of Ecology Robert Klee, Commissioner Connecticut Department of Energy and Environmental Protection John Stine, Commissioner Minnesota Pollution Control Agency Thomas Burack, Commissioner New Hampshire Department of Environmental Services Basil Seggos Acting Commissioner New York State Department of Environmental Conservation Dick Pedersen, Director Oregon Department of Environmental Quality Randy Huffman, Secretary West Virginia Department of Environmental Protection cc: The Honorable Gina McCarthy, Administrator United States Environmental Protection Agency 4