David Fischer Quoted in Inside TSCA Article on Two-Step Model for TSCA Exposure Limits

Keller and Heckman Counsel David Fischer was quoted in the Inside TSCA article, “EPA Faces Fresh Criticism Over Two-Step Model for TSCA Exposure Limits.” The article describes David’s concerns over the U.S. Environmental Protection Agency’s (EPA) latest reworking of how it sets existing chemical exposure limits (ECELs) under the Toxic Substances Control Act (TSCA), specifically questioning the approach to ECELs in EPA’s draft TSCA evaluation of formaldehyde.

“Seems to me EPA is saying ‘Well, we can identify unreasonable [risk] in the risk evaluation, but when push comes to shove in the risk management rule, we have some wiggle room to decide what that really is, unreasonable risk, and if it means the ECEL is a whole lot higher . . . so be it,’” said David, “because we want to make sure we can initiate risk management controls that are ‘permanent, feasible and effective.’” 

David continued, adding that he does not believe “TSCA allows what I just articulated.” Rather, the law “means that EPA has got to get the risk evaluation right up front, the unreasonable risk right within the risk determination. It can’t fix things in the risk management rule,” said David.

David further addressed this topic during Keller and Heckman’s May 8, 2024, TSCA 30/30 webinar, where he spoke on the methylene chloride rule. He pointed out that the Biden EPA’s methylene chloride rule included new language stating that the “goal of risk management is to identify controls that are permanent, feasible and effective. An interesting use of the term ‘feasible,’ because the point of risk evaluation is to identify what is the unreasonable risk.” 

David added, “Then the risk management rule is to act upon that unreasonable risk determination. Feasibility comes into play only in picking which is the better risk management option to meet that unreasonable risk determination, not to substitute for a different unreasonable risk determination.”

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