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May 24, 2021
Lynn L. Bergeson Quoted by Law 360 in "4 Ways Biden Is Making Headway On Chemical Oversight"

On May 21, 2021, Law 360 quoted Lynn L. Bergeson, Managing Partner, Bergeson & Campbell, P.C. (B&C®), regarding some of the first moves of the Biden Administration. 

President Joe Biden picked Michal Freedhoff, who helped draft the amendments and worked for the Democrats on the Senate Environment and Public Works Committee during the Trump administration, to lead the agency's Office of Chemical Safety and Pollution Prevention. Freedhoff is already in place at the agency, where she serves as the principal deputy assistant administrator, and was involved in the agency's work on the Frank R. Lautenberg Chemical Safety for the 21st Century Act, through which the TSCA was amended in 2016.

Freedhoff is intimately familiar with Congress, the TSCA and the many players who have a stake in the law and its implementation, according to Lynn Bergeson, owner of Bergeson & Campbell PC

"She is a well-respected scientist and her commitment to transparency and to listening to all perspectives is appreciated," Bergeson said. "But given her deep involvement in Lautenberg … that gives us all pause for thought on critical issues that she and the Biden administration are already showing some interest in."

[...]

The 2016 TSCA amendments required the EPA to evaluate existing chemicals with fresh human health and environmental risk assessments, on a staggered basis. The agency was supposed to finalize the TSCA risk evaluations for the first 10 chemical substances by December 2019, but the agency didn't get all of them done until January.

Having made its risk evaluations for the first 10 chemicals, the EPA is supposed to move on to the risk mitigation portion of the regulatory process, while also working on risk evaluations for 20 other chemicals.

But its work on the first 10 chemicals is likely to get significant revisions under the Biden administration, Bergeson said.

That's because the EPA under former President Donald Trump abandoned the path set out by the Obama administration and considered conditions of use separately from each other for the purpose of risk evaluations, rather than looking at a chemical holistically. In addition, the Trump administration said it was unnecessary to regulate some chemicals under the TSCA because other federal laws could be used instead.

"Dr. Freedhoff has made it clear that EPA's reliance upon a flawed interpretation of Section 6 and EPA's reliance upon the efficacy of existing other federal laws to address risks from chemical exposures is not supported by the law," Bergeson said. "And hence, I think all 10 will be reopened at some point."

And that could lead to problems at the agency, she said, because the EPA chemicals office already is "drinking from the firehose" in terms of all the things it has on its plate.

"It remains unclear, to be perfectly blunt, how and when EPA intends to do this," Bergeson said.

The EPA said at the end of April that in keeping with the Biden administration's focus on environmental justice, it will expand the scope of toxic release inventory reporting requirements to include more chemicals and facilities — including facilities that are not currently reporting on ethylene oxide releases — and make the data more accessible to the public.

Bergeson said she expects to see more from the EPA linking TSCA issues with environmental justice and taking action.

"There are specific opportunities for EPA to really push out the language of exposed, sensitive subpopulations in TSCA and key off of that for purposes of enhanced scrutiny for environmental justice," she said. "But it's still a work in progress."

See https://www.law360.com/articles/1387193/4-ways-biden-is-making-headway-on-chemical-oversight (subscription required)


 
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