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Erik Baptist Discusses Ninth Circuit’s Ruling on EPA’s TSCA Risk Evaluation Rule

Law360, Inside EPA
November 20, 2019

Erik C. Baptist, a partner in Wiley Rein’s Environment & Product Regulation Practice, was quoted by Law360 and Inside EPA in coverage of the Ninth Circuit’s recent decision vacating certain aspects of the Environmental Protection Agency’s (EPA) risk evaluation framework rule implementing the 2016 amendments to the Toxic Substances Control Act (TSCA).

A panel of Ninth Circuit judges ruled November 14 that the EPA should consider outdated uses of a chemical when conducting risk evaluations – but rejected a claim by advocacy groups that the agency must consider every “condition of use,” according to the article. The court also made non-binding statements about EPA’s legal authority to pick and choose the conditions of use assessed in an evaluation, Law360 reported.

That finding could put the EPA at a crossroads about how it proceeds on the conditions of use issue, Mr. Baptist told Law360. “It's up to the agency to decide whether they’re going to want to take that litigation risk down the road, if they carve things out of the scope of the risk evaluation,” he said. “The court kind of alluded to where it was headed on those other conditions of use issues.”

The EPA has identified 10 chemicals that it will evaluate first under the new TSCA standards. Mr. Baptist said the agency will probably examine the legal landscape along with its increasing responsibilities to complete risk evaluations beyond the first 10.

In the Inside EPA article, Mr. Baptist discussed the agency’s possible options with respect to the Ninth Circuit ruling.

“From a programmatic view, EPA can either heed the warnings found in the Ninth Circuit’s ‘advisory opinion’ and make the corresponding adjustments in the pending draft risk evaluations, or the agency can continue its preferred approach of exercising its discretion when determining what conditions of use to evaluate,” Mr. Baptist said.

The former approach, he said, “would cut EPA’s potential losses and avoid future litigation on the conditions of use issue, but would also create a significant amount of additional work for the agency to complete on the pending risk evaluations for the first ten chemicals in the short time remaining.”

The alternative approach “would take the calculated risk that a different, more favorable panel will decide whether the ‘expects to consider’ gives EPA the discretion to focus its risk evaluations on the conditions of use that present the greatest concern,” Mr. Baptist told Inside EPA.

“As someone who used to help run EPA’s chemicals office, I can understand why the agency would take either approach. If the agency wants to take the long view, it would be in EPA’s best interests to continue with its desired approach of focusing its risk evaluations on the areas of the greatest concern,” Mr. Baptist concluded.

To read the Law360 article, click here (subscription required).

To read the Inside EPA article, click here (subscription required).