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On March 17, 2017, Lynn L. Bergeson, Managing Partner of Bergeson & Campbell, P.C. (B&C®), and James Aidala, Senior Government Affairs Consultant with B&C, were quoted in an Inside EPA article on the U.S. Environmental Protection Agency’s denial of a Toxic Substances Control Act (TSCA) petition to ban flouride.
[…]But Lynn Bergeson of the law firm Bergeson & Campbell told Inside EPA in a March 10 email that de novo review "would pose considerable challenges for parties and explains why invoking this relief is rare."
Bergeson and colleagues in a March 7 blog post said that if the petitioners file their suit, "there is potentially more than a disagreement over possible risks of fluoride; there might also be arguments over what is or is not sufficient for Section 21 petitions to be granted, or possibly about EPA's general interpretation, as elaborated in the denial notice and in the risk evaluation procedural rule, that new TSCA does not provide discretion for EPA to evaluate less than all conditions of use in new actions under Section 6."
Bergeson & Campbell in the blog post notes that EPA explicitly states that if a petition showed that a chemical use clearly exceeds the TSCA risk standard, and did not include all the conditions of use, EPA would still deny the petition to initiate action to control the risk. . . . So even if a chemical use is shown to cause great harm, it would not merit EPA granting the petition since it is not a complete risk evaluation as EPA wishes to define it."
EPA's rationale is "essentially arguing that since EPA must assess 'all conditions of use' in any control rule they might promulgate, then any outside petition must include all of the same homework before it can be granted. This seems to obviate the very purpose of section 21 petitions for section 6 action, which in the past has been viewed as one way for the public to identify risks of concern to EPA which, for whatever reason, may not be on EPA's radar. This asserted view, that only a comprehensive risk evaluation considering all conditions of use will suffice, presents a very high threshold for action -- and seemingly an impossibly high threshold to move EPA to act," the firm says.
One of the authors of the post, former EPA official Jim Aidala, said in a March 10 interview that one explanation for EPA's motivation is that the rationale is consistent with its "current firefight on all uses have to be part of the soup, even though it leads to absurd construction on section 21. . . My most generous assessment is that they are protecting the greater good [by requiring addressing all uses.] But it obviates the point of section 21."
Aidala added that risk analyses considering all uses of chemicals will be very expensive, particularly for non-governmental organizations, potentially creating another hurdle for new TSCA citizens' petitions.
As one example of TSCA risk evaluation cost estimates, EPA in its January report to Congress on its capacity to perform risk evaluations and the necessary resources to do so as required under new TSCA authorities estimated costs of $3.7 million per chemical, and taking two to three years to complete.