15 USC 2617 - Preemption

U.S Code last checked for updates: Nov 22, 2024

§ 2617.

Preemption

(a)

In general

(1)

Establishment or enforcement

Except as otherwise provided in subsections (c), (d), (e), (f), and (g), and subject to paragraph (2), no State or political subdivision of a State may establish or continue to enforce any of the following:

(A)

Development of information

A statute or administrative action to require the development of information about a chemical substance or category of chemical substances that is reasonably likely to produce the same information required under section 2603, 2604, or 2605 of this title in—

(i)

a rule promulgated by the Administrator;

(ii)

a consent agreement entered into by the Administrator; or

(iii)

an order issued by the Administrator.

(B)

Chemical substances found not to present an unreasonable risk or restricted

A statute, criminal penalty, or administrative action to prohibit or otherwise restrict the manufacture, processing, or distribution in commerce or use of a chemical substance—

(i)

for which the determination described in section 2605(i)(1) of this title is made, consistent with the scope of the risk evaluation under section 2605(b)(4)(D) 1

 See References in Text note below.

of this title; or

(ii)

for which a final rule is promulgated under section 2605(a) of this title, after the effective date of the rule issued under section 2605(a) of this title for the chemical substance, consistent with the scope of the risk evaluation under section 2605(b)(4)(D) ¹ of this title.

(C)

Significant new use

(2)

Effective date of preemption

(b)

New statutes, criminal penalties, or administrative actions creating prohibitions or other restrictions

(1)

In general

(2)

Effect of subsection

(c)

Scope of preemption

Federal preemption under subsections (a) and (b) of statutes, criminal penalties, and administrative actions applicable to specific chemical substances shall apply only to—

(1)

with respect to subsection (a)(1)(A), the chemical substances or category of chemical substances subject to a rule, order, or consent agreement under section 2603, 2604, or 2605 of this title;

(2)

with respect to subsection (b), the hazards, exposures, risks, and uses or conditions of use of such chemical substances included in the scope of the risk evaluation pursuant to section 2605(b)(4)(D) of this title;

(3)

with respect to subsection (a)(1)(B), the hazards, exposures, risks, and uses or conditions of use of such chemical substances included in any final action the Administrator takes pursuant to section 2605(a) or 2605(i)(1) of this title; or

(4)

with respect to subsection (a)(1)(C), the uses of such chemical substances that the Administrator has specified as significant new uses and for which the Administrator has required notification pursuant to a rule promulgated under section 2604 of this title.

(d)

Exceptions

(1)

No preemption of statutes and administrative actions

(A)

In general

Nothing in this chapter, nor any amendment made by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, nor any rule, standard of performance, risk evaluation, or scientific assessment implemented pursuant to this chapter, shall affect the right of a State or a political subdivision of a State to adopt or enforce any rule, standard of performance, risk evaluation, scientific assessment, or any other protection for public health or the environment that—

(i)

is adopted or authorized under the authority of any other Federal law or adopted to satisfy or obtain authorization or approval under any other Federal law;

(ii)

implements a reporting, monitoring, or other information obligation for the chemical substance not otherwise required by the Administrator under this chapter or required under any other Federal law;

(iii)

is adopted pursuant to authority under a law of the State or political subdivision of the State related to water quality, air quality, or waste treatment or disposal, except to the extent that the action—

(I)

imposes a restriction on the manufacture, processing, distribution in commerce, or use of a chemical substance; and

(II)

(aa)

addresses the same hazards and exposures, with respect to the same conditions of use as are included in the scope of the risk evaluation published pursuant to section 2605(b)(4)(D) of this title, but is inconsistent with the action of the Administrator; or

(bb)

would cause a violation of the applicable action by the Administrator under section 2604 or 2605 of this title; or

(iv)

subject to subparagraph (B), is identical to a requirement prescribed by the Administrator.

(B)

Identical requirements

(i)

In general

(ii)

Penalties

In the case of an identical requirement—

(I)

a State or political subdivision of a State may not assess a penalty for a specific violation for which the Administrator has assessed an adequate penalty under section 2615 of this title; and

(II)

if a State or political subdivision of a State has assessed a penalty for a specific violation, the Administrator may not assess a penalty for that violation in an amount that would cause the total of the penalties assessed for the violation by the State or political subdivision of a State and the Administrator combined to exceed the maximum amount that may be assessed for that violation by the Administrator under section 2615 of this title.

(2)

Applicability to certain rules or orders

(A)

Prior rules and orders

(B)

Certain chemical substances and mixtures

(e)

Preservation of certain laws

(1)

In general

Nothing in this chapter, subject to subsection (g) of this section, shall—

(A)

be construed to preempt or otherwise affect the authority of a State or political subdivision of a State to continue to enforce any action taken or requirement imposed or requirement enacted relating to a specific chemical substance before April 22, 2016, under the authority of a law of the State or political subdivision of the State that prohibits or otherwise restricts manufacturing, processing, distribution in commerce, use, or disposal of a chemical substance; or

(B)

be construed to preempt or otherwise affect any action taken pursuant to a State law that was in effect on August 31, 2003.

(2)

Effect of subsection

(f)

Waivers

(1)

Discretionary exemptions

Upon application of a State or political subdivision of a State, the Administrator may, by rule, exempt from subsection (a), under such conditions as may be prescribed in the rule, a statute, criminal penalty, or administrative action of that State or political subdivision of the State that relates to the effects of exposure to a chemical substance under the conditions of use if the Administrator determines that—

(A)

compelling conditions warrant granting the waiver to protect health or the environment;

(B)

compliance with the proposed requirement of the State or political subdivision of the State would not unduly burden interstate commerce in the manufacture, processing, distribution in commerce, or use of a chemical substance;

(C)

compliance with the proposed requirement of the State or political subdivision of the State would not cause a violation of any applicable Federal law, rule, or order; and

(D)

in the judgment of the Administrator, the proposed requirement of the State or political subdivision of the State is designed to address a risk of a chemical substance, under the conditions of use, that was identified—

(i)

consistent with the best available science;

(ii)

using supporting studies conducted in accordance with sound and objective scientific practices; and

(iii)

based on the weight of the scientific evidence.

(2)

Required exemptions

Upon application of a State or political subdivision of a State, the Administrator shall exempt from subsection (b) a statute or administrative action of a State or political subdivision of a State that relates to the effects of exposure to a chemical substance under the conditions of use if the Administrator determines that—

(A)

(i)

(ii)

compliance with the proposed requirement of the State or political subdivision of the State would not cause a violation of any applicable Federal law, rule, or order; and

(iii)

the State or political subdivision of the State has a concern about the chemical substance or use of the chemical substance based in peer-reviewed science; or

(B)

no later than the date that is 18 months after the date on which the Administrator has initiated the prioritization process for a chemical substance under the rule promulgated pursuant to section 2605(b)(1)(A) of this title, or the date on which the Administrator publishes the scope of the risk evaluation for a chemical substance under section 2605(b)(4)(D) of this title, whichever is sooner, the State or political subdivision of the State has enacted a statute or proposed or finalized an administrative action intended to prohibit or otherwise restrict the manufacture, processing, distribution in commerce, or use of the chemical substance.

(3)

Determination of a waiver request

The duty of the Administrator to grant or deny a waiver application shall be nondelegable and shall be exercised—

(A)

not later than 180 days after the date on which an application under paragraph (1) is submitted; and

(B)

not later than 110 days after the date on which an application under paragraph (2) is submitted.

(4)

Failure to make a determination

(5)

Notice and comment

(6)

Final agency action

The decision of the Administrator on the application of a State or political subdivision of a State shall be—

(A)

considered to be a final agency action; and

(B)

subject to judicial review.

(7)

Duration of waivers

(8)

Judicial review of waivers

(9)

Approval

(A)

Automatic approval

(B)

Requirements

(g)

Savings

(1)

No preemption of common law or statutory causes of action for civil relief or criminal conduct

(A)

In general

(B)

Clarification of no preemption

(2)

No effect on private remedies

(A)

In general

(B)

Authority of courts

(Pub. L. 94–469, title I, § 18, Oct. 11, 1976, 90 Stat. 2038; renumbered title I, Pub. L. 99–519, § 3(c)(1), Oct. 22, 1986, 100 Stat. 2989; amended Pub. L. 114–182, title I, § 13, June 22, 2016, 130 Stat. 492.)

cite as: 15 USC 2617