Louisiana Court of Appeal Rejects Preemption under the Toxic Substances Control Act.

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The Louisiana Third Circuit Court of Appeal held that a personal injury suit under the LPLA was not pre-empted by the Federal Toxic Substances Control Act, 15 U.S.C. 2601, et seq. The court held that, because this case does not involve creation of testing requirements, preemption is only applicable where (1) a regulation imposed by the Environmental Protection Agency binds defendants, and (2) the state action constitutes a non-exempt requirement designed to protect against a risk of injury. The court reasoned that the first requirement was not satisfied because “the EPA regulates the permissible risk of exposure to PCBs, not the specific manner in which that risk is minimized. There are no requirements, such as design or use of particular materials, provided in the regulations. The lack of such language indicates that the act does not seek to regulate these considerations, leaving that task to the states.” Stewart v. Rheem Mfg. Co., No. 05-726 (La. App. 3 Cir. 3/29/06), 926 So.2d 90.

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