[Congressional Record Volume 161, Number 185 (Friday, December 18, 2015)]
[Senate]
[Pages S8877-S8878]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




REQUIRED STATE PREEMPTION PROVISION IN THE FRANK R. LAUTENBERG CHEMICAL 
                    SAFETY FOR THE 21ST CENTURY ACT

  Mr. WHITEHOUSE. Mr. President, today, with my colleagues Senator Cory 
Booker and Senator Jeff Merkley, I wish to discuss the Frank R. 
Lautenberg Chemical Safety for the 21st Century Act, S. 697. Some 
opponents claim it creates a regulatory void that will prohibit States 
from creating or enforcing State policies while EPA assesses chemicals 
for safety. We opposed the bill as introduced because that was the 
case. Since then, we

[[Page S8878]]

worked together with Senators Udall, Vitter, and Inhofe to restore the 
ability of States to protect their citizens while EPA is assessing 
chemicals by substantially shrinking the interim period of time where 
preemption occurs and by creating a straightforward waiver process.
  Mr. 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 
peer-reviewed science.
  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.
  Mr. MERKLEY. Each of these standards has a constitutional foundation. 
The first reflects the restraints of the dormant commerce clause. The 
second reflects the Constitution's supremacy clause. The third 
corresponds to the scientific factual predicate required to meet 
scrutiny under the due process clause, as not ``arbitrary and 
capricious.''
  Restoring the ability for States to protect their citizens while EPA 
assesses the safety of chemicals was one of the primary goals of our 
work to improve this bill and that has been accomplished under section 
18(f)(2) of S. 697, as reported by the Environment and Public Works 
Committee. We believe this does, within the limits imposed by the 
Constitution.

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