Required State Preemption Provision in the Frank R. Lautenberg Chemical Safety for the 21St Century Actby Senator Cory A. Booker
Posted on 2015-12-18
BOOKER. The provision requires EPA to allow States to regulate
hazardous chemicals while EPA assesses a chemical for safety if the
proposed state regulation meets three basic criteria: A, consistent
with the dormant commerce clause of the U.S. Constitution, compliance
with the proposed regulation will not unduly burden interstate commerce
in the manufacture, processing, distribution in commerce, or use of a
chemical substance; B, compliance with the proposed regulation would
not cause a violation of any applicable Federal law, rule, or order;
and C, the State or political subdivision of a State has a concern
about the chemical substance or use of the chemical substance based in
Given the importance of this provision and the role EPA will play in reviewing waiver applications, we asked EPA for its interpretation. EPA agrees that States will be exempted from preemption by meeting three criteria. The following are the relevant excerpts from EPA's response: Based on the bill reported on June 18, 2015, S. Rep. 114-67, the following is a summary of how EPA understands the Frank R. Lautenberg Chemical Safety for the 21st Century Act, FRL21, would operate with respect to the preemption of state law.
Required waivers under section 18(f)(2). These would be State requests for an exemption from preemption under section 18(b). EPA must grant this kind of waiver request if the State law for which waiver is sought would not unduly burden interstate commerce; the State law for which waiver is sought would not cause a violation of Federal law; and the State has a concern about the chemical substance or use of the chemical substance based in peer-reviewed science.