Bergeson & Campbell, P.C.

Comments by Lynn L. Bergeson Regarding TSCA Implementation under the Trump Administration Featured in Chemical Week

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Courtesy of Bergeson & Campbell, P.C.

On December 11, 2017, Lynn L. Bergeson, Managing Partner of Bergeson & Campbell, P.C. (B&C®), was quoted in the Chemical Week article “Trump's EPA: TSCA remains priority amid regulatory rollback.”

“Not surprisingly, there’s been a tremendous focus on the implementation requirements for Lautenberg,” says Lynn Bergeson, managing partner of Bergeson & Campbell (Washington, DC). Efforts have included building a conceptual framework of how to review and apply the new standards under key sections that cover manufacturing and process notices; how to apply the new standards that cover prioritization, risk evaluation, and regulation of chemical substances and mixtures; and how to implement the reporting deadline requirements pertinent to mercury as well as inventory reset requirements. “EPA has done, in my view, a remarkably good job of meeting the deadlines and trying faithfully to implement Congressional intent to make TSCA a strong, enduring chemical statute in which the American public can have confidence,” Bergeson adds.

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Trump’s EPA has come under fire by NGOs and the media, which view several appointments and the agency’s moves to end Obama-era environmental programs as an indication that it is overly “friendly” to the industries it aims to regulate—including chemicals. Pruitt himself was a controversial pick for administrator because he had been an outspoken critic of the agency while serving as Oklahoma Attorney General, and had been among a number of state officials who sued EPA over its Clean Power Plan. More recently, the appointment of Nancy Beck, a former ACC executive, to the position of deputy assistant administrator of the Office of Chemical Safety and Pollution Prevention (OCSPP), has only furthered sentiment that EPA is overly sympathetic to the chemical industry.

Industry stakeholders, however, refute this narrative as unfair and narrow. “Nancy is a very able scientist and has, in my view, proven herself to be an equally astute manager of people and issues,” Bergeson says. “I have nothing but good things to say about EPA’s OCSPP leadership and its ability to implement the law and be receptive to the many public comments that EPA is receiving through public stakeholder meetings, the rulemaking process, and other advocacy settings involving the TSCA implementation process.”

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Bergeson also notes that some of the interpretations EPA has taken under the New Chemicals Program—EPA’s program for management of potential risk of new chemicals—are not particularly welcomed by industry stakeholders. “We have a jump from 10% of new chemicals being regulated to north of 90%. That is not an inherently industry-friendly position,” Bergeson says. “I know there is a perception that the framework rules, when issued in final, more closely reflected industry comments than they did NGO comments. But I think many of the comments that were incorporated into the final rules were more defensible, both legally and practically, than some of the interpretations reflected in the proposed rules. For example, EPA’s determination to exclude legacy uses of chemicals from the ‘conditions of use’ for risk evaluation and prioritization purposes has given rise to concern in the NGO community, resulting in litigation. Concern aside, EPA’s rationale for doing so is compelling. Ultimately, the court may decide the issue.”

Bergeson adds that EPA is comprised of regulators who are “guided by the rule of law and due process and are willing to listen to both sides. I applaud EPA’s efforts to be more transparent and participatory in crafting the rules that Congress requires under TSCA,” she says. “The fact that they don’t necessarily embrace all of the principles the prior administration offered doesn’t make them inherently wrong.”

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Trump’s proposal to slash EPA’s budget for 2018 by nearly a third alarms industry. “We all raised concerns when the initial budget for EPA came out. There were very significant reductions,” Bergeson says. “I would part paths with the Pruitt administration on that. I think the EPA needs more money—not less—to do its job.”

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The fee schedule under TSCA reform—which was expected to help fund EPA’s administration of the program—also remains unsettled. “I find it a little puzzling that we still don’t have a proposed rule yet on the fee schedule,” Bergeson says. “I frankly had expected that proposal in September-October. The longer it takes to get a proposal out, the longer it will take to get a final rule out, and the longer it will take to start reaping the benefits of an income stream to support the TSCA program. It would behoove the administration to move briskly forward.”

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Bergeson would also like to see more transparency on the legal rationale for some of EPA’s positions. “The Office of General Counsel is still leaderless, although a nomination has been identified, and it would be preferable to have more written explanation supporting the legal positions on which some of the TSCA determinations made by EPA rely.”

EPA is also said to be planning to reorganize the OPPT office in an effort to streamline TSCA reform implementation. While details have not been made available, Bergeson says the reorganization will make the office more responsive to industry’s concerns with TSCA implementation. “Much more emphasis, for example, will be placed on a clear pre-TSCA submission consultation process, which is a big deal,” she says. The reorganization is expected to take place in 2018.

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