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June 14, 2017

Inside EPA Quotes Lynn L. Bergeson in “Scope Of ‘Use’ In TSCA Revision Seen Driving New Industry Data-Sharing”

The ACTA Group

On June 14, 2017, Lynn L. Bergeson, President of The Acta Group (Acta®), was quoted by Inside EPA discussing the impacts of a possible requirement by the U.S. Environmental Protection Agency (EPA) to consider all possible use conditions while conducting risk assessments.

[…] Speaking at a recent seminar on environmental regulation hosted by the Practising Law Institute in New York, NY, attorney Lynn Bergeson said competing calls from industry and environmentalists on whether risk assessments should consider “all” conditions in which a chemical might be used are placing new pressure on companies that previously had little need to closely oversee downstream users.

“If you’re a manufacturer of a substance, you may not have any earthly idea how your substance is being used in the global community. . . . That’s a big, seismic game-changer in the chemical community system, that you have to be aware of how your chemicals are being used,” Bergeson said.

She continued that if EPA opts to review only certain uses of chemicals under TSCA, she expects formal business deals between chemical producers, manufacturers who use the chemicals in finished products, users and disposers in order to ensure there are no unforeseen uses occurring that would require EPA to go beyond its original assessment.

She continued that the agreements could range from information-sharing to outright bans on certain uses “because the producer doesn’t want it used in those conditions.”


Bergeson said at the June 9 seminar that if EPA strictly limits the uses it reviews in risk assessments as ACC and other industry groups have argued Congress intended, that will pressure manufacturers to strictly control how their chemicals are used.

Such controls will require “much more information sharing” than has previously been the norm, she continued.

During her presentation on TSCA, Bergeson also praised Administrator Scott Pruitt for aggressively moving forward with rules and guidance implementing the new law. Pruitt “seems to be, and his administration seems to be, working extremely hard at meeting the very strict implementation deadlines embedded in the new law,” she said.

She continued that she expects the agency to meet statutory deadlines for finalizing three rules that will establish policies for assessing existing chemicals’ risks, and prioritizing substances for review and “resetting” the long-standing inventory of chemicals in commerce. The toxics law, enacted June 22 of last year, requires EPA to finalize the rules within one year of that date.

“It is crystal clear that this administration is squarely behind the timely and robust implementation of this new law,” Bergeson said, noting that both of the TSCA rules that require White House Office of Management & Budget review are undergoing that process now.

But she added that even with the agency acting quickly on TSCA rules, there could still be a long wait for manufacturers to submit new chemicals for EPA to review, if only because of the uncertainty involved in being the first participant in a new regulatory program.

“You haven’t seen a lot of people saying ‘me first, me first,’ because nobody wants to be first in a program that hasn’t been truth-tested,” she said.

Bergeson continued that the first participants in the new process will likely be companies that are either extremely confident their products will be considered low-risk, or see a major competitive advantage from being assessed by EPA.

“There are a whole series of very consequential business, scientific and legal determinations that derive” from EPA’s evaluation of a new chemical, she said. [subscription required]