David Fischer Quoted in Inside TSCA Article on EPA’s Limited Time to Implement Fifth Circuit TSCA Decision

Keller and Heckman Partner David Fischer was quoted in the Inside TSCA article, “TSCA Watchers Doubt EPA’s Ability To Implement 5th Circuit’s Approaches.” The article addresses doubts about the Trump Environmental Protection Agency’s (EPA) ability to fully implement the Fifth Circuit’s East Fork decision before the end of the administration, given staffing constraints, ongoing litigation, and a backlog of Toxic Substances Control Act (TSCA) rulemakings. Experts suggest the agency’s pending TSCA framework rule will be the primary vehicle for incorporating the court’s directives.

David said EPA’s biggest challenge is speed: “What’s the fastest way of getting stuff to be implementable? Everything [at EPA] takes longer than you think, and they only have two years. They have to figure out how to translate the court’s opinion into how risk evaluations should be done.” He urged EPA to finalize the framework rule with minimal changes and rely on guidance for additional policy details: “If I were at EPA, I would get that [framework] rule [out]” and, if broader revisions “are going to kill a year and a half,” EPA should “find another way. Deal with it in guidance, some non rule-making activity.”

David also argued that EPA does not need to define unreasonable risk in a regulation, noting: “You don’t necessarily need a definition of unreasonable risk in a regulation, you can explain what that is in a guidance document.” He stressed that the agency must first “retrain staff, so to speak, as to how the risk evaluations need to be done now,” and warned against repeating past TSCA implementation mistakes, recalling the agency’s effort to “fly the plane while building it. That’s not going to end well.”

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