Erik Baptist Discusses EPA’s Critical Use Exemption Process Under TSCA

August 3, 2020

Erik C. Baptist, partner in Wiley’s Environment & Product Regulation Practice, was quoted in a July 29 Chemical Watch article regarding requests for the U.S. Environmental Protection Agency (EPA) to consider exempting certain “critical uses” of chemicals from potential regulatory activity under the Toxic Substances Control Act (TSCA).

As Chemical Watch reported, Section 6(g) of TSCA allows the EPA to grant regulatory exemptions under certain conditions, such as when a chemical is considered “critical or essential” and no other feasible, safer alternative is available.

After requests from two companies and one federal agency for exemptions under this provision have arisen, similar requests are expected to grow as the EPA finalizes risk management evaluations for the first group of ten substances, according to Chemical Watch. One of the companies, the article noted, cited a lack of guidance from EPA when its exemption request was submitted.

“EPA should set up an exemption process and tell affected stakeholders when they should submit their request for an exemption and the factors EPA will consider,” Mr. Baptist told Chemical Watch.

The timing of the company’s request is not too late according to the TSCA statute, Mr. Baptist said. However – as noted in a recent Wiley alert – he said that companies hoping to win a critical use exemption, or anticipate future litigation, should consider the timing of their engagement with the EPA to be a crucial factor in achieving a positive outcome.

Mr. Baptist pointed out that when reviewing a risk management rule, the court must find it unlawful and set it aside when the Agency’s decision “is not supported by substantial evidence in the rulemaking record, taken as a whole.”

Because the court will evaluate everything considered by the EPA, as well as public submissions in the administrative record, “establishing the risk management rulemaking record is vitally important when anticipating potential litigation,” Mr. Baptist said.

To read the article, click here (subscription required).