Keller and Heckman Partners Tom Berger and James Votaw Quoted in the Chemical Watch Article, "What Might the U.S. Election Mean to TSCA Policy"

Date: Oct 27, 2020

Keller and Heckman Partners James Votaw and Tom Berger were quoted in the Chemical Watch article, “What Might the U.S. Election Mean to TSCA Policy.” The article discusses how the U.S. Presidential election on November 3 could lead to significant changes in how the Environmental Protection Agency (EPA) implements TSCA.

A Joe Biden win would mean appointing new leadership at the EPA and signify a new, broader approach on TSCA risk evaluations, a reevaluation of recently proposed rules from the Trump administration, and even action to finalize chemical restrictions that have languished since they were proposed under the Obama administration. If voters side with President Trump, the EPA’s current approach on chemicals policy will probably continue, further solidifying the administration’s stamp on implementing the Lautenberg Act amendments to the nation’s main chemicals law.

Mr. Votaw noted that, should Mr. Biden win, there is likely to be an "immediate review of pending litigation,” with the new administration deciding the strategy to take on cases such as the current legal challenge to EPA’s risk evaluation for methylene chloride as well as reviewing regulations in the works and litigation underway. He further noted that there has been legislation backing up in the House and unable to move through the Republican-controlled Senate. A flip in the Senate control could free the logjam. 

It "would not be unusual" to see a pause on actions that do not reflect the new administration’s policies, Mr.  Votaw noted. This could encompass anything that is not yet complete or reached the point of final agency action, he said.

Some areas will be a focus for the EPA regardless of who wins. These include updates to the new chemicals review process and a procedural rule to govern the TSCA risk management process for reviews of existing chemicals.

The EPA’s new chemicals review process under TSCA section 5 needs to, and will, change "no matter who sits in the White House on 20 January," Mr. Berger said. The procedural requirements for new chemical reviews were not amended following the 2016 changes to TSCA. As a result, he said, the EPA’s rules, as they are written now, "are inconsistent with the statute and have gaps." 

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