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You Can’t Win if You Don’t Play: How EPA’s Risk Evaluation Exclusions Limit TSCA Preemption

September 21, 2017

Lexology,

Andrew D. Knudsen,

September 19, 2017-

Environmental and public-health groups have taken issue with the EPA’s rule establishing procedures for chemical risk evaluations under the revised Toxic Substances Control Act (TSCA), which allows the EPA to exclude certain conditions of use when assessing whether a chemical presents unreasonable risks. These groups fear the exclusions could provide a “loophole” allowing some chemical risks to go unaddressed. But putting those concerns aside, should companies affected by the rule actually want to take advantage of these exclusions? Are they really beneficial to regulated industries? Or do they risk undermining one of the primary goals that companies sought to gain by supporting TSCA reform—federal preemption of overlapping state restrictions?

In a rare act of bipartisan lawmaking, Congress overhauled TSCA in June 2016—the first major reform of an environmental statute in decades. Part of that bipartisan agreement stemmed from the broad consensus that TSCA, in its previous iteration, was not up to the task of effectively regulating even the most commonly recognized chemicals of concern. But another key to the success of TSCA reform was its vocal support from members of the regulated industries.

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