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There is a doctrine of "foreseeable misuse" in products liability law, as described in Sections
2(b) and 2(c) of the Restatement of Torts. " The purpose of this codification is to allow injured
parties an avenue to obtain relief where they have misused a product in a way that the
manufacturer should have anticipated. The doctrine, however, presents many fact-based
questions for a jury. Generally speaking, foreseeable misuses do not include circumstances
where the hazard was clear and a plaintiff disregarded it anyway (e.g., the plaintiff decided to
juggle knives knowing that they are sharp and not intended for juggling); where instructions and
warnings were clear and a plaintiff disregarded them anyway; where a plaintiff had the skills,
knowledge and training to act prudently and failed to do so.
In short, in tort cases, "reasonable foreseeability" is the limit of liability. Courts seek to predict
reasonable and expected conduct under the specific factual circumstances presented. Here, EPA
is tasked with making much the same analysis. Reasonably foreseen conduct therefore does not
include illegal uses or activities, product misuses, and illegal and improper disposal. Such
conditions of use are properly outside the scope of a risk evaluation.
This approach is sensible and practical. The purpose of the scoping exercise is to focus the risk
evaluation. Including every conceivable scenario, regardless of substantiation, likelihood, and
severity whereby someone might misuse or be injured by a chemical substance cannot be the
point of a risk evaluation. Indeed, boundless approaches ignore the "reasonably" in "reasonably
foreseen." This approach to "reasonably foreseen" also becomes untethered from Congress
focus on risk in risk evaluations; rather than focusing on major risks it chases minor, abstract,
and even merely hypothetical ones. It undermines the point of scoping the risk evaluation to
achieve this purpose, and is inconsistent with Congress' expectation set out in the legislative
history that misuses are outside the scope of risk evaluations."
H.
EPA Must Use High Quality, Best Available Information to Identify
Conditions of Use For Inclusion in Scoping.
Commodity chemicals and building block chemicals may have hundreds or thousands of discrete
and readily identifiable uses. In some cases, "major" intermediate and end uses of chemicals
will be readily apparent from reporting already made to EPA or other credible sources of public
information. Information of varying quality, integrity, credibility, and reliability is available
about "uses" of chemicals on the internet, social media, and online journals. A significant
amount of information available over the internet is from anonymous sources or anecdotal in
nature. EPA should apply its Quality System" to information collected and evaluated to identify
conditions of use in the pre-scoping stage, and ensure that it has conducted a data assessment to
verify that they are of sufficient quantity and adequate quality for their intended use (to define
the scope of the risk assessment).
13 Restatement (Third) of Torts: Prod. Liab. $$ 2(b), 2(c) (1998).
14 "Conditions of Use" is ... not intended to include "intentional misuse" of chemicals." S Report 114-67 at 7
(June 18, 2015)
https://www.epa.gov/quality
See Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity, of Information
Disseminated by the Environmental Protection Agency (EPA Information Quality Guidelines), Section 4.1,
available at https://www.epa.gov/sites/production/files/2013-08/documents/epa-info-quality-guidelines.pdf
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Source: https://www.industrydocuments.ucsf.edu/docs/kzbn0226

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