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Today, Ranking Members Henry A. Waxman and Paul D. Tonko sent a letter to Chairman John Shimkus expressing significant concerns about the sweeping preemption language in the latest discussion draft of the Chemicals in Commerce Act.  As drafted, the language could jeopardize state or local laws and regulations relating to hydraulic fracturing and the chemicals used in the hydraulic fracturing process.

“Since the beginning of the committee’s discussion of this bill, I have asked the bill’s authors to explain this broad federal preemption and list which state and local toxic use laws are causing problems for commerce.  They have not provided an answer.  As a result, we are left with a sprawling, imprecise provision that could even preempt state or local requirements to ensure hydraulic fracturing proceeds as safely and responsibly as possible,” said Rep. Waxman, Ranking Member of the Committee on Energy and Commerce. 

“States play an important role in chemical regulation and must retain the right to act on behalf of their own citizens,” said Rep. Tonko, Ranking Member of the Subcommittee on Environment and the Economy.  “The preemption language proposed is far too broad. I am concerned that many important safeguards at the state level will be overridden by this provision.  An important goal for revising TSCA is to strengthen the federal program for chemicals to inspire public confidence in the safety of chemical products.  Public confidence will not be improved through a sweeping preemption of state authority.  State laws are not the problem.  The problem lies with a federal law that has failed to provide sufficient protection for public health and the environment.”

Section 17 of the draft bill preempts state and local governments from establishing or implementing a law or regulation requiring the “development or submission” of information “relating to a chemical substance,” language that could have serious consequences for requirements to collect and disclose data on the chemicals used in hydraulic fracturing and disposed of in the waste stream.  Section 17 also preempts any state or local requirement that “prohibits or restricts the manufacture, processing, distribution in commerce, or use” of a chemical substance, language that could be interpreted to cover any number of hydraulic fracturing regulations, which, by design, place limits and conditions on the practice.

The letter discusses several examples of state laws and regulations that could be preempted if the Chemicals in Commerce Act becomes law.  The Subcommittee on Environment and the Economy will be holding a hearing tomorrow, Tuesday, April 29, on the discussion draft.

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