David Fischer Quoted in Inside TSCA Article on TSCA “Unreasonable Risk” Language

Keller and Heckman Counsel David Fischer was quoted in the Inside TSCA article, “Attorney Questions EPA’s Translation Of TSCA ‘Unreasonable Risk’ Bar To Exposure Limits.” The article refers to Keller and Heckman’s June 21, 2023 TSCA 30/30 webinar, where David discussed the existing chemical exposure limits (ECELs) that the U.S. Environmental Protection Agency (EPA) included in proposed Toxic Substances Control Act (TSCA) rules for the solvents methylene chloride and perchloroethylene (PCE).

“The [ECEL] is essentially the default now for what is and what isn’t unreasonable risk, and we know that because in the proposed [methylene chloride] risk management rule, exposure above the ECEL is unreasonable risk,” said David. “So we now actually have a bright line. The bright line is the ECEL.”

David pointed out during the webinar that EPA describes the ECEL as a level of exposure at which an adult is unlikely to experience adverse effects if exposed over the course of a working lifetime, which EPA calculates as eight hours a day, 250 days per year for 40 years. “This begs a couple of questions, since we are essentially now defining the term ‘unreasonable risk’ both in a narrative description or in the ECEL, the actual number,” commented David. “I wonder if EPA should provide more clarity as to what is unreasonable risk when it proposes changes to the risk evaluation procedural rule, maybe later this year or early 2024.”

David also urged webinar attendees to address EPA’s interpretation of TSCA’s “unreasonable risk” language in their comments on the methylene chloride rule, which are due July 3.

“When you think about the term unreasonable risk, does that mean there is such a thing as a reasonable risk and if there is such a thing as reasonable risk, what kind of risk level is that?” asked David. “It appears that unreasonable risk is now the absence of nearly any potential risk of adverse effects . . . Is that what the regulated community thinks that unreasonable risk should be?”

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