It Is a Mixed Bag, but We Are Getting There
| Author | Lynn L. Bergeson |
| Position | Managing partner at Bergeson & Campbell, PC. |
| Pages | 54-54 |
54 | THE ENVIRONMENTAL FORUM Reprinted by permission from The Environmental Forum®, May/June 2021.
Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.
THE DEBATE
e new chemicals review pro-
gram under TSCA Section 5 is more
transparent than it was pre-Lauten-
berg. ere are fewer opportunities to
claim Condential Business Informa-
tion, the CBI claims substantiation
process is more robust, and EPA is
now required to issue and make avail-
able a report on its new chemicals
decisions. Formidable challenges
remain and, as discussed below, the
new chemicals bias persists in ways
that seemingly impede “unduly” and
create “unnecessary economic barriers
to technological innovation” contrary
to TSCA Section 2(b)(3).
EPA’s approach to risk evalua-
tion under TSCA Section 6, while a
work in progress, has identied con-
ditions of existing chemical use that
EPA believes pose unreasonable risks
for the rst set of ten chemicals.
EPA’s implementation of TSCA has
launched a regulatory process that
will eliminate those risks. Detrac-
tors express concern with “delays”
implementing these risk mitigation
measures, but the law provides for
one year to propose and another
year to promulgate risk management
rules (and certain extensions are
available).
Whether new TSCA, as imple-
mented, has restored the public’s
condence in EPA’s ability to ensure
the safety of industrial chemicals in
commerce, a key congressional goal,
is hard to answer. e question may
be premature. Given all our distrac-
tions, including the pandemic and
extreme weather events, chemical
safety may now be less urgent than
other, existential threats to life. On
balance, EPA’s implementation
of TSCA has raised the prole of
industrial-chemical safety and en-
hanced the chemical value chain’s
awareness of TSCA and its expand-
ing application to certain articles, all
for the good.
Now, the less successful aspects
of EPA’s implementation. e
agency’s implementation of Section
6 is awed. is is less an opinion
than it is a judicial conclusion — see
Safer Chemicals v. EPA, decided two
years ago by the Ninth Circuit. e
most prominent concerns relate to
EPA’s exclusion of legacy uses of as-
bestos and its limited consideration
of “potentially exposed or sensitive
subpopulations” in the risk evalua-
tion process.
While that process routinely con-
siders chemical exposures to infants
and workers, it does not consistently
consider exposures to the public, in-
cluding exposures to chemicals regu-
lated by other federal laws. Aligning
the risk evaluation process with the
plain text of the law and the Biden
administration’s commitment to
eliminating environmental injustices
will focus intensely on these de-
ciencies, but how to resolve them is
unclear. Fixes are neither easy nor
self-evident, especially with regard to
the 10 completed risk evaluations.
As alluded to above, while EPA’s
implementation of Section 5 has
improved the transparency of the
review process, other aspects of Sec-
tion 5 implementation have been
decidedly less successful. Since Janu-
ary 2021, EPA has completed only
10 premanufacture determinations,
as compared with an average of 15
to 30 per month in recent years and
over 75 per month pre-Lautenberg.
e review process is badly broken,
unpredictable, and unwelcoming to
chemical innovators. EPA’s March
29 “updates” to the new chemicals
program are guaranteed to impede
chemical innovation all the more.
For an economy desperate to green
itself as quickly as possible, the new
chemicals review process is itself not
sustainable.
EPA should consider initiating a
stakeholder dialogue to identify cre-
ative and ecient solutions to TSCA’s
most pressing problems. We are still
relatively early on in the implementa-
tion process, and there is much good
work on which to build to ensure
TSCA is all that Congress, and other
stakeholders, intend it to be.
Lynn Bergeson is managing partner at
Bergeson & Campbell, PC.
It Is a Mixed
Bag, but We Are
Getting There
By Lynn L. Bergeson
By any measure, the 2016
Toxic Substances Control Act
amendments were, to use the
vernacular of the day, a BFD.
TSCA unquestionably needed a
makeover, and a bipartisan Congress
worked hard to reform our chemical
control law to remedy historic struc-
tural failings that, by all accounts,
needed urgent attention.
Five years later, it is clear that was
the easy part. e hard part has been
interpreting and implementing criti-
cal aspects of TSCA’s unrelenting
deadlines. It is beyond the scope of
this writing to describe the complex-
ity of the tasks Congress mandated
EPA to complete. ose of us who
practice extensively in the chemicals
space appreciate the “near mission
impossible” nature of Congress’s ask.
e agency has likened its eort to
building an airplane while in ight,
an apt simile in our view. As hard
as EPA has worked, however, and
under uniquely challenging circum-
stances, implementation eorts to
date are a mixed bag.
First, the successes. Despite di-
minished sta, resources, and morale,
EPA has largely met most of the
deadlines imposed under the law.
EPA timely issued the framework
rules, completed most of the Section
6 risk evaluations, and timely issued
the persistent, bioaccumulative, and
toxic chemical rules, among other
accomplishments. is was not easy,
and EPA has done well.
e Oce of Pollution Prevention
and Toxics’ organizational integrity
has improved since the amendments
were enacted. OPPT’s new structure
leverages better the skills and resourc-
es needed to undertake the amount
and type of work required to meet
Congress’s expectations.
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