• TSCA section 18 contains two preemption sections that prohibit different kinds of state or local regulations corresponding to different stages in EPA’s review process under TSCA.
• Section 18 also provides exceptions that, in effect, preserve state chemical requirements that otherwise would be preempted.

Preemption of state requirements

Under the Supremacy Clause of the U.S. Constitution, state law and policy must yield to the exercise of Congress’s powers if Congress so intends. As Congress debated whether to expand EPA authority to regulate chemicals under TSCA leading up to the enactment of the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA), federal preemption of state requirements was a key issue.

As enacted in 1976, TSCA preempted state and local requirements only for specific chemicals. Some states and localities enacted their own laws or promulgated regulations pertaining to other chemicals in response to concerns regarding the risks of commercial chemicals and the absence of federal regulatory action. The chemical industry and associated entities (e.g., retailers) expressed concern over regulatory requirements that differed from one state to another.

In response, the LCSA revised TSCA’s preemption provisions. In broad terms, TSCA section 18 prohibits specific state and local actions, and then restricts the reach of those prohibitions through limitations, exceptions, and waivers. Any preemption is chemical-specific, and EPA must take specific actions under TSCA in order to trigger the preemption of state regulation of chemicals. Exceptions to preemption may apply under certain conditions, and EPA may grant preemption waivers by rule.

As amended, section 18 contains two preemption sections that prohibit different kinds of state or local regulations corresponding to different stages in EPA’s review process under TSCA:

• TSCA section 18(a) prohibitions — The prohibitions in section 18(a) apply once EPA implements information requirements, notification of significant new use requirements, or restrictions or prohibitions based on its risk evaluation for the particular chemical. Under section 18(a), once EPA has acted to regulate a chemical, no state may establish or continue to enforce any of the following, subject to exemptions and potential waivers:
  • A statute or administrative action that requires the development of information on a chemical that would be “reasonably likely” to be the same as information required under an existing EPA rule, order, or consent agreement under the Act.
  • A statute, criminal penalty, or administrative action to prohibit or otherwise restrict the manufacture, processing, or distribution in commerce or use of a chemical for which EPA has either: (1) issued an order finding the chemical not to present an unreasonable risk, or (2) found the chemical to present an unreasonable risk and promulgated a final rule to address the unreasonable risk after the effective date of the rule.
  • A statute or administrative action requiring the notification of a use of a chemical for which EPA has already determined that notification as a significant new use is required.
• TSCA section 18(b) prohibitions — The prohibitions in section 18(b) apply while EPA is conducting its risk evaluation of a particular chemical, beginning on the date EPA determines the scope of its risk evaluation and ending either on the deadline for completion of the risk evaluation or when EPA publishes the risk evaluation, whichever is earlier. Section 18(b) imposes a temporary prohibition on states from establishing any new prohibition or restriction on a chemical designated by EPA as a high-priority substance for risk evaluation. States are preempted from regulating only the hazards, exposures, risks, and uses included in the scope of EPA’s risk evaluation.

Exceptions to preemption

Section 18 provides exceptions that, in effect, preserve state chemical requirements that otherwise would be preempted. States and localities may continue to enforce any chemical substance prohibitions or restrictions that were in effect before April 22, 2016. States and localities also may adopt new regulations and other actions pursuant to any laws in effect on August 31, 2003.

TSCA also leaves in place the “cooperative federalism” structure of several other federal environmental laws, under which states administer programs that either meet or exceed minimum federal requirements. Thus, it does not preempt a state from adopting or enforcing any rule, standard of performance, risk evaluation, scientific assessment, or any other protection for public health or the environment that:

• Is adopted under the authority of or to satisfy any other federal law;
• Implements a reporting, monitoring, disclosure, or other information obligation not otherwise required by the EPA under TSCA or required under other federal law; or
• Is generally adopted under a state law related to water quality, air quality, or waste treatment or disposal, with certain exceptions.

In addition to these exemptions from preemption, TSCA sets forth “savings clauses,” providing that the Act’s requirements do not preempt penalties for criminal conduct or common law rights or statutes creating remedies for civil relief — such as damages — under any legal theory of liability. TSCA also provides that determinations, such as risk assessments, made pursuant to the statute are not definitive proof in court for private actions.

In addition to the specific statutory exemptions, section 18 allows EPA the discretion to exempt from preemption a state requirement under certain circumstances. If the state submits an application for the exemption, EPA may grant the exemption if the agency determines that compelling conditions warrant granting the waiver to protect health or the environment, that compliance with the requirement would not unduly burden interstate commerce and would not cause a violation of federal requirements, and that the risk identified by the state is based on sufficiently strong science.

EPA must exempt from preemption new state requirements established during EPA’s risk evaluation period for a chemical if either the:

1. State requirement is enacted within 18 months of EPA’s prioritization of the chemical for review; or
2. EPA determines that compliance with the requirement would not unduly burden interstate commerce or cause a violation of federal requirements, and that the state’s concern about the chemical is based on peer-reviewed science.

EPA must act on a required exemption application within 110 days after an application is submitted. All waiver applications are subject to public notice and comment requirements, and decisions regarding such applications are final agency actions subject to judicial review.