Media Mention

Erik Baptist Discusses Biden Administration’s Plans to Review TSCA Implementation

Inside EPA’s Inside TSCA
January 25, 2021

Erik C. Baptist, partner in Wiley’s Environment & Product Regulation Practice, was quoted extensively by Inside EPA’s Inside TSCA in a January 22 article about President Biden’s plans to ask the Environmental Protection Agency (EPA) to review numerous actions previously taken under the amended Toxic Substances Control Act (TSCA).

Mr. Baptist said even if the new Administration wants to take a more robust approach to implementing TSCA, it may not be practical or necessary to rework the Trump Administration’s TSCA “framework rule” – which sets procedures for the EPA’s evaluations of existing chemicals.

The framework rule doesn’t require the EPA to follow the previous Administration’s narrow approach to TSCA, especially its exclusion of chemical uses and exposure pathways governed by other programs, according to Mr. Baptist. He said the evaluation rule is not prescriptive and gives the EPA discretion on how to shape evaluations.

“All it says is the [EPA] Administrator has discretion to exclude certain conditions of use if he or she has a justification for doing so,” Mr. Baptist said.

The framework rule does not require the Biden Administration “to exclude any condition of use that it wishes to include” in the scope of a chemical evaluation, Mr. Baptist said. But he acknowledged that the “prior Administration exercised that discretion to exclude pathways that were already regulated or managed by other statutes, as an example.”

If the Biden Administration seeks to review – and potentially expand the scopes of – all 10 of the risk evaluations previously completed by the Trump EPA, “they will run into the reality of limited agency resources,” Mr. Baptist said. But he added that the EPA may be willing to target specific evaluations for review even if it does not reconsider all 10 of them.

Since 2016, the EPA has “failed to meet statutory deadlines and struggled to even complete the first 10 risk evaluations on time,” Mr. Baptist said. “It’s very difficult to achieve what the new Administration wants to do [especially] if they are going to reopen the first 10 [evaluations] and expand the scope of the next 20. They may want to pick and choose their battles.”

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