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Herb Estreicher Quoted in Inside TSCA Article on EDF Cumulative Risk Model

Keller and Heckman Partner Herb Estreicher was quoted in the Inside TSCA article, “Industry Attorneys See Unanswered Questions In EDF Cumulative Risk Model.” The article discusses the Environmental Defense Fund’s (EDF) novel framework for the U.S. Environmental Protection Agency (EPA) to analyze cumulative risks under the Toxic Substances Control Act (TSCA). Many industry attorneys, including Herb, say that this framework leaves open major questions on how the agency would approach such assessments. “The issue of how to perform a scientifically robust cumulative risk assessment is highly complex and far more complex than EDF makes out,” states Herb. The EPA has been working on a cumulative risk guide for almost twenty years. The pending document began in the George W. Bush administration as a follow-on to EPA’s 2003 Framework for Cumulative Risk Assessment. Despite those delays, Herb says, “I would think the appropriate path is for EPA to complete its work on revising the 2003 Framework and gain experience in conducting such assessments in other EPA programs such as air and water and Superfund. Once the process is refined the TSCA program could turn to this. After all, as EDF concedes, cumulative risk assessment is resource intensive. EPA is having enough trouble conducting the handful of evaluations on its plate.” Herb goes on to note, “TSCA does not mandate that EPA consider cumulative risk in its risk evaluations,” and suggested that the history of EPA’s rule setting a “framework” for the evaluations shows officials did not intend to include cumulative risks in the process they set out. Herb concludes by telling Inside TSCA, “depending on how EPA develops guidance on conducting the cumulative risk assessment the guidance could require notice and comment requirement. In any event industry stakeholders reading the preamble of the final framework rule would reasonably have concluded that cumulative risk would not be assessed...I think EPA should tread carefully and only after a thorough airing of the issue with stakeholders.”

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