State Authority: All state restrictions on chemicals that have been taken as of April 22nd of this year are allowed to remain in place regardless of what EPA decides about the same chemical in the future. (A provision known as “grandfathering.”) States are free to initiate new restrictions on a chemical until and unless EPA names the chemical as High Priority and publishes a document outlining the “scope” – the uses, conditions, health concerns, etc. ¬– of the risk evaluation they plan to undertake. States are then prohibited (“preempted”) from establishing new restrictions that address the same scope. If EPA declares the chemical safe for all of those uses and conditions, the preemption becomes permanent. If EPA declares any of the uses and conditions in the scoping document unsafe, the preemption is lifted and states are free to impose new restrictions while EPA takes two to three years to decide on its own restrictions. Once EPA establishes its restrictions, the preemption kicks in again and becomes permanent unless a state obtains a waiver that requires it to meet several criteria.
Certain categories of state chemical regulation are exempt from preemption altogether. These include restrictions pursued under state laws that relate to air, water, or waste or which derive from delegated authority under another federal law (like OSHA.) State information collection and reporting requirements are exempt as are any actions taken under a state law passed before 2003. This last provision was designed to protect California’s Proposition 65 but it applies to any other pre-2003 law. The temporary preemption provision does not apply to the first 10 chemicals that EPA names or to industry-requested evaluations of any EPA Workplan chemical. This last provision was included to ensure that several recent and pending state actions on Workplan chemicals can take effect.
As this description shows, the preemption provisions in the bill are complicated and over-reaching. However, because of the exemptions described and the fact that preemption is tied to the schedule of EPA reviews, there remains ample room for continued state leadership.