TSCA: 'Until the administration changes I expect NGOs to march into court at every opportunity'
Q&A with Herb Estreicher, a partner at US law firm Keller and Heckman
Ahead of this year’s Regulatory Summit Europe, we caught up with Herb Estreicher, a partner at US law firm Keller and Heckman, who gave us his views on a number of TSCA-related issues.
Join us at Regulatory Summit Europe and hear Dr Estreicher speak about ‘The NGO response to the US EPA's implementation of the new TSCA’ during session 2, ‘Developments from North America’, on day one of the conference. The inaugural two-day event will cover regulatory developments around the world, bringing together a fantastic roster of expert speakers.
Secure your place at Regulatory Summit Europe 2019
Q) There has been a lot of controversy around the draft risk evaluation for pigment violet 29, despite the feeling by some that it is a relatively uncontroversial substance. Why has this been the case?
A) The US NGOs have adopted a strategy of complaining bitterly about every step the Trump EPA takes to implement the new TSCA. They are having some success in influencing the EPA’s behaviour. To be fair, the pigment violet 29 (PV29) draft risk evaluation does not reflect the EPA’s best efforts. The EPA could have deployed the various sophisticated Qsar tools in its quiver to develop a robust risk evaluation, but it did not. It certainly doesn’t help that PV29 is on the CoRAP list as a potential PBT and that Echa has opened a comprehensive compliance check for the substance. It will be interesting to see the report of the TSCA Science Advisory Committee on Chemicals (SACC) review of the EPA draft risk evaluation. All in all, not the EPA’s best effort.
Q) What are the key takeaways from the court's decision with respect to the Environmental Defense Fund's legal challenge to the inventory notification rule?
A) The key takeaway is that the EPA needs to do a better job at explaining what it is doing. The NGOs will monitor every move the EPA makes and will march into court at the drop of a pin. The District of Columbia (DC) Circuit decision on the inventory notification rule was correct.
Whether the chemical identity of a substance can be readily reverse engineered is an important factor in deciding whether the chemical identity is a trade secret. Aside from that, it was disappointing that the industry interveners did not appear at the oral hearing to support the EPA. I note they did not make the same mistake at the oral hearing in the Ninth Circuit case on prioritisation and risk evaluation where the industry interveners were highly effective.
Q) Two NGOs have accused industry of attempting to 'circumvent' state-level regulation of chemicals by submitting manufacturer-requested risk evaluations for the phthalates DIDP and DINP. Do you have any perspectives on this criticism?
A) NGOs lack perspective. First they complain that the EPA is evaluating too few substances. Then they complain that industry is submitting manufacturer-requested risk evaluations. The legislation contemplates that 25% of the cost of the evaluation programme be paid by the fees that industry pays for manufacturer-requested risk evaluations. If NGOs really want a robust risk evaluation programme they should applaud industry’s willingness to pay millions in fees to the EPA for manufacturer-requested risk evaluations.
Q) NGOs have filed suit against the EPA for a range of TSCA activities, including the risk evaluation and prioritisation framework rules and the prohibition on consumer uses of methylene chloride. Do you expect these types of legal challenges to slow as TSCA implementation progresses, or will they continue? Are new types of litigation expected?
A) Until the administration changes I expect NGOs to march into court at every opportunity. It is widely believed that the courts are the only branch of the US government that is currently functioning properly.
Q) Broadly speaking, what effect has the high level of NGO engagement had on the implementation of TSCA?
A) It has had a tremendous impact, most notably in ratcheting back trade secrecy protections. Industry needs to do a better job in supporting what the EPA is doing. If you look at the rule-making documents you see numerous NGO submissions and only a few from industry.
Q) Why are you looking forward to attending Regulatory Summit Europe 2019?
A) The European audiences are very gracious in their willingness to hear what an American has to say, even with a New York accent.
Secure your place at Regulatory Summit Europe today:
The views expressed in this interview are those of the interviewee and are not necessarily shared by Chemical Watch.