Court Rejects EPA Bid to Dismiss TSCA Confidentiality Suit

/in , ,

A federal judge in the Middle District of Georgia has denied EPA’s motion to dismiss a lawsuit brought by Burgess Pigment Company, which is seeking to stop the agency from publicly disclosing the identity of one of its chemical substances.  The dispute stems from Burgess’s failure to timely file a required notice under EPA’s “Active/Inactive Rule”—a mistake the company acknowledges, but which it argues does not justify the loss of confidential treatment it had maintained for two decades.

The July 31, 2026, order, which the court described as an easy call at this stage, may be a case of first impression on how confidential business information (CBI) claims are handled under the Toxic Substances Control Act (TSCA).  The question has implications beyond this single dispute, particularly as EPA works through the first wave of CBI expirations and renewals under the amended statute.

How We Got Here

The dispute traces back to 2016, when Congress passed the Lautenberg amendments to TSCA.  Among other changes, the amendments tightened the requirements for companies seeking to keep specific chemical identities confidential and directed EPA to determine which chemicals on the TSCA Inventory—EPA’s master list of chemicals in U.S. commerce—were active in commerce.

EPA implemented that requirement through its 2017 “Active/Inactive Rule,” which required manufacturers and processors to file a Notice of Activity Form A (NAA) for each active chemical.  Companies that wanted to keep a chemical identity confidential had to assert that claim in the NAA.  If no timely NAA was filed, EPA’s position is that it becomes statutorily obligated to disclose the substance’s identity.

Burgess missed the NAA for two chemical substances, which it admits was an error.  Burgess, a Georgia-based kaolin processor, has claimed confidential treatment for its chemical identities since at least 2000, and it argues that disclosure now would give competitors access to information they have not previously had, threatening its very existence.

EPA’s Basis for Denial

In April 2020, EPA informed Burgess that both chemical identities were no longer entitled to confidential treatment, triggering a 30-day window under TSCA for Burgess to seek judicial review.  EPA’s stated basis was not the missed NAA deadline—according to Burgess, EPA instead claimed that another company had waived protection for the substances’ identities.  Burgess disputed that characterization and pushed back through counsel.

In 2022, EPA reversed itself as to one chemical, agreeing to preserve its CBI status.  As to the second—the one now at issue in this case—EPA maintained that it was ineligible for CBI treatment but changed its rationale, instead relying on Burgess’s failure to file a timely NAA.

Burgess has continued to claim confidential treatment for that remaining substance in subsequent TSCA submissions.  Each time, EPA has responded by informing the company that it is not entitled to confidentiality, that EPA plans to disclose it, and that Burgess has 30 days to seek judicial review.  Yet despite years of these notices, EPA has never actually published the chemical’s identity on the public Inventory.

The Lawsuit

Following receipt of the latest denial letter in April 2025, Burgess filed suit in July 2025 under the Administrative Procedure Act (APA), alleging that EPA’s determination was arbitrary and capricious.  In its complaint, Burgess argued that the specific chemical identity is deserving of confidential treatment under TSCA, and that EPA’s approach “unreasonably elevate[s] form over function” by focusing solely on “an inadvertent mistake.”

EPA moved to dismiss in November 2025, arguing that the suit was untimely.  In EPA’s view, its latest letter simply reiterated the original 2020 determination, meaning the real target of Burgess’s challenge was a decision from years earlier—long outside TSCA’s 30-day review window.

The Court’s Ruling

The court was not persuaded, calling dismissal an easy call on the current record.  Much of the order walks through the case’s lengthy factual history, with the judge weaving in several notable observations along the way.  For example, the court appeared to emphasize that EPA has never actually disclosed the contested chemical identity despite years of warning that it would, and that EPA appears “mum on any assessment regarding the merits of Burgess’s potential assertion that the identity of its chemical substance is a trade secret” under the Freedom of Information Act.

The court’s most significant comment addressed Burgess’s argument that EPA itself recognizes the risk of irreparable harm when CBI is lost due to an inadvertent filing mistake.  If that’s true, the court stated, “it very well might be that the EPA’s refusal to withdraw its denial of the CBI claim . . . calls for judicial intervention via the APA.”

The court’s actual merits analysis is comparatively short.  Without appearing to take a definitive position on whether the 2020 or 2025 determination is really being challenged, the court pointed to statements on EPA’s website, cited by Burgess, that prior determinations are only one factor in a CBI review and that each claim is evaluated in the context of the submission in which it is received.  Because the sole reason EPA gave for its 2025 determination was that the chemical identity had already been denied, the court held that dismissal was not warranted on “such a limited record.”

“Until the Court can take a ‘hard look’ at the administrative record to determine whether the EPA has acted in an arbitrary or capricious manner, in an abuse of discretion, or otherwise not in accordance with law, the EPA’s efforts to dismiss Burgess’s APA fail at this early stage,” the order states.  In the order’s closing paragraph, the court cites Burgess’s allegation that nothing in TSCA authorizes EPA to disclose a confidential chemical identity because of a reporting entity’s mistake and notes that EPA’s “strict adherence to and unwillingness to budge on an overly technical rule may cement irreparable and irrevocable devastation to a small family-owned business.”

The case is Burgess Pigment Co. v. U.S. Environmental Protection Agency, No. 5:25-cv-309 (M.D. Ga.), complaint filed July 18, 2025.  EPA has agreed to maintain the confidentiality of the chemical identity for the duration of the litigation.

Microplastics Regulation: EPA Declines to Act, California Moves Forward

/in , , , , ,

EPA and California took opposite approaches to microplastics regulation within weeks of each other.  On July 1, 2026, EPA proposed to omit microplastics from the Sixth Unregulated Contaminant Monitoring Rule (UCMR 6).  Two weeks earlier on June 18, California’s Department of Toxic Substances Control (DTSC) finalized a regulation adding microplastics to the state’s Safer Consumer Products (SCP) Candidate Chemicals List.

What EPA Proposed

In the proposed UCMR 6, EPA proposed not to include microplastics despite a petition from the governors of seven states—New Jersey, Delaware, Illinois, Maryland, Michigan, Wisconsin, and Connecticut.  That petition matters because the Safe Drinking Water Act section 1445(a)(2)(B)(ii) directs that the administrator “shall include” a contaminant recommended by seven or more governors, unless listing it would prevent listing other contaminants of higher public health concern.

EPA’s basis for declining is analytical feasibility.  The agency states there is no validated EPA or consensus drinking water method with the necessary accuracy and precision to measure microplastics for UCMR 6, and that developing one before the statutory deadline of December 27, 2026, is not feasible.  EPA points out that the governors’ petition itself acknowledges the absence of such a method.  Because monitoring is the entire purpose of the UCMR, EPA argues, requiring systems to test for something no approved method can quantify would yield no usable data while displacing contaminants that can be measured.  Instead, EPA has placed microplastics on the draft Contaminant Candidate List 6 as a first step, and says it will keep evaluating existing consensus practices toward a future method.

It is worth watching whether EPA’s feasibility rationale squarely fits the statutory exception, which is written in terms of “higher public health concern” rather than measurability.  This is a proposed rule open for comment through August 31, 2026, so the final reasoning—and outcome—could change.

What California Did

DTSC’s action runs the other way.  The Office of Administrative Law approved the regulation on June 18, 2026, with an effective date of October 1, 2026; it amends Title 22 to add microplastics—defined as plastics under 5 millimeters in their longest dimension, whether intentionally manufactured or generated by the fragmentation of larger plastics—to the Candidate Chemicals List.  As discussed in a previous post, listing does not itself regulate anything; it is a predicate that lets DTSC evaluate products that contain or generate microplastics and potentially designate them priority products through a later rulemaking.  Listing requires only a hazard trait and consideration of adverse impacts, exposures, and information availability, not a validated quantification method.  As part of its research on microplastics, DTSC published a background document in November 2025 identifying products that could be designated as priority products.

According to DTSC’s Final Statement of Reasons, the agency declined to explicitly define “plastics” in the regulation “because ‘plastics’ has an ordinary English meaning.”  Manufacturers should be aware that DTSC considers biobased and biodegradable polymeric substances within its jurisdiction; DTSC states that

All microplastics, including biodegradable ones, exhibit at least one hazard trait under the Safer Consumer Products Regulations, namely the particle size and fiber dimension hazard trait. Therefore, it is appropriate for DTSC to designate the entire class of microplastics as a Candidate Chemical.

In response to comments that microplastics are more than one chemical and therefore cannot be added to the Candidate Chemicals List through a single rulemaking for a categorical definition, the agency asserted that “there is nothing in the statutes or regulatory history that even implies categorical identities are unauthorized,” noting that list already contains categorical listings, such as PFAS.

The statement of reasons adds that any subsequent priority products proposal for microplastics “will involve an evaluation of potential exposures and significant or widespread adverse impacts associated with those specific products, as well as a formal rulemaking process with opportunity for public input.”  A challenge to the rule is expected.

Coalition Argues TSCA Bars EPA From Weighing Data-Center Benefits in a New-Chemical Review

/in , , , , ,

A coalition of seventeen environmental organizations, led by Earthjustice, has asked EPA to deny a premanufacture notice (PMN) under the Toxic Substances Control Act (TSCA) for a fluorinated immersion-cooling fluid intended to cool data-center equipment.  The comments press three lines of attack: that the substance poses an unreasonable risk EPA must act on, that the substance’s asserted benefits for data centers are legally irrelevant to that judgment, and that the applicant redacted health and safety information it was required to disclose.

The comments, filed July 15, 2026, respond to EPA’s notice of receipt of the PMN.  The substance is 3-Hexene, 1,1,1,2,2,5,5,6,6,6-decafluoro-, (3E) (CASRN 1256353-26-0), also known as Opteon 2P50.  The PMN applicant’s identity was claimed as confidential business information (CBI).

The Risk the Comments Describe

The coalition’s core argument is that the fluid presents an unreasonable risk that TSCA section 5 obligates EPA to prevent.  It characterizes the substance as a PFAS and urges EPA to find unreasonable risk on that basis alone, citing concerns including persistence, mobility, bioaccumulation potential, and toxicity.  The substance’s status as a PFAS is contested: when chemical supplier Chemours launched the fluid in 2023, it stated that it does not consider the compound a PFAS, describing it as a hydrofluoroolefin (HFO) that degrades quickly in the atmosphere.  The coalition, on the other hand, characterizes HFOs as PFAS and argues that HFOs break down in the atmosphere into shorter-chain PFAS—principally perfluoropropanoic acid (PFPrA) and trifluoroacetic acid (TFA)—that are persistent, highly mobile in water, and difficult to remediate.  They also cite a recent European Chemicals Agency risk assessment committee’s June 2026 opinion—adopted by consensus, now before the European Commission—proposing that TFA be classified as toxic to reproduction.

The comments also argue that the limited information available on the substance raises additional concerns about its risks.  Available toxicity data, they say, come largely from rat studies that understate PFAS risk to humans, and a workplace exposure limit derived by a group the comments describe as industry-linked relied on assumptions it did not disclose.  They add that the fluid is acutely toxic to aquatic life and not readily biodegradable, and that a hyperscale data center could hold tens of thousands of liters of dielectric fluid, with routine evaporative losses and disposal creating recurring releases near workers, fenceline communities, and waters around data centers and disposal sites.

How EPA Must Conduct the Review

A second line of argument concerns EPA’s review process.  TSCA section 5 directs EPA to decide whether a new chemical presents an unreasonable risk “without consideration of costs or other nonrisk factors.” EPA announced in September 2025 that it would prioritize review of new chemicals intended for data-center projects, inviting manufacturers to seek that treatment under Executive Order 14318.  The applicant filed a request for priority review premised on an urgent national need for AI infrastructure, which the coalition contends is irrelevant to the risk determination.  Priority review, they argue, affects when EPA takes up a submission, not the standard it must apply.

Two related arguments target how EPA models exposure.  The comments say EPA cannot assume workers will wear protective equipment, because under the occupational hierarchy of controls such equipment is a last line of defense and, in any event, accounting for its use would violate TSCA by conflating risk evaluation with risk management.  They also argue that EPA must weigh aggregate exposures from many facilities and other reasonably foreseen uses in its analysis.  As an example, the comments claim that the substance is marketed for other cooling applications, including use in electric-vehicle batteries.

The Confidentiality Dispute

The comments separately challenge the applicant’s CBI redactions.  They contend that TSCA generally bars confidentiality claims over health and safety information, yet the filing withheld entire toxicity-profile slides, the toxicological section of the safety data sheet, the applicant’s occupational exposure assessment, and its list of prior substantial risk notices under TSCA Section 8(e).  Other redactions concern information available on Chemours’ website, the coalition argues.

These arguments coincide with litigation brought by Earthjustice-represented environmental groups, which contends that EPA systemically fails to disclose information in PMNs claimed as CBI when the covered information does not facially qualify as confidential.

The comment period for the notice of receipt of the PMN closed July 15, 2026.

Bipartisan Bill Would Give Safer Choice Program Its First Statutory Authorization

/in , ,

For a voluntary program with roughly 2,000 certified products and unusually broad industry support, Safer Choice has always rested on thin statutory footing.  EPA has run it for more than a decade under general Toxic Substances Control Act (TSCA) authority, without any statute naming the program or directing the agency to operate it.  A bill introduced in the Senate on June 2, 2026, would change that.

What the Bill Does

Senators Chris Coons (D-DE) and Jon Husted (R-OH) introduced S. 4664, the Safer Choice Program Authorization Act of 2026, which would direct the EPA administrator to carry out a voluntary Safer Choice Program encompassing both the Safer Choice and Design for the Environment (DfE) Standards. The bill has been read twice and referred to the Committee on Environment and Public Works.

The legislation would codify much of what EPA already does administratively.  It directs the Administrator to certify products against those Standards, criteria the agency updated in 2024; to maintain the Safer Chemical Ingredients List; and to authorize use of the Safer Choice and DfE labels, which the bill treats as agency marks that may not be used in a false or unauthorized manner.  It would formalize the role of qualified third-party profilers—the outside reviewers who evaluate ingredients and formulations—subject to independence and conflict-of-interest requirements, while reserving final certification decisions to the administrator.  The bill would also authorize the administrator to add product categories—a direction EPA explored through a 2023 request for comment.  It directs coordination with the Food and Drug Administration and the Consumer Product Safety Commission and authorizes $6 million per year for fiscal years 2028 through 2034.

Why It Matters

Because Congress never authorized Safer Choice, the program has been exposed to elimination through budget and reorganization decisions rather than legislation.  Project 2025’s Mandate for Leadership recommended transitioning the Safer Choice program to the private sector, and in 2025 EPA reportedly moved the program into a larger chemicals division as part of a broader reorganization.  The administration’s recent budget requests have proposed steep reductions across EPA.  Statutory authorization would make the program meaningfully harder to unwind administratively.

Who Is Affected

The interested parties here are mostly proponents.  Cleaning-product manufacturers account for most Safer Choice certifications, and they, along with ingredient suppliers, retailers, and institutional and government purchasers who use the label as a procurement benchmark, have an interest in the program’s continuity.  Trade associations representing these sectors have supported authorization.  In addition, third-party profilers would gain a defined statutory role under the legislation.

FIFRA Preempts Label-Based Failure-to-Warn Claims, Supreme Court Rules

/in , , ,

On June 25, 2026, the Supreme Court held, 7-2, that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a state-law failure-to-warn claim alleging that Monsanto failed to warn users that the weedkiller Roundup causes cancer.  The decision in Monsanto Co. v. Durnell concludes that EPA’s approval of a pesticide label without a cancer warning constitutes a federal labeling “requirement” that state tort law cannot override.

The ruling resolves a circuit split. The Third Circuit previously found preemption on these facts, while the Ninth and Eleventh Circuits and several state appellate courts had not.

What the Court Decided

Writing for the majority, Justice Kavanaugh identified two interlocking features of FIFRA’s registration regime that together produce the preemptive effect.  First, before registering any pesticide, EPA must determine that the proposed label contains all warnings “necessary and . . . adequate to protect health and the environment” and is not false or misleading.  That determination reflects the agency’s considered judgment about what a label must—and need not—say.  Second, EPA’s implementing regulations require manufacturers to use the EPA-approved label, subject to narrow exceptions not at issue in this case.  Changing the label without EPA approval, including by unilaterally adding a cancer warning, may expose the manufacturer to civil and criminal penalties under federal law.  Together, the majority reasoned, those features constitute a federal labeling “requirement” under FIFRA’s preemption clause that preempts state tort law claims imposing labeling requirements “in addition to or different from” those required under FIFRA.

The majority found support for that reasoning in Riegel v. Medtronic, Inc., which held that FDA premarket approval of medical devices preempts conflicting state-law device claims, emphasizing the similarities between that preemption clause and FIFRA’s.  It also distinguished Bates v. Dow Agrosciences LLC, which allowed state failure-to-warn claims equivalent to FIFRA’s misbranding standard, on the ground that Bates involved efficacy claims—statements EPA does not review at registration.  Safety determinations, which EPA does review, carry preemptive force that efficacy claims do not, the majority ruled.

Writing for the dissent, Justice Jackson argued FIFRA’s own misbranding prohibition is the relevant federal requirement, and a state claim that simply parallels that prohibition should not be preempted under Bates.  The majority and dissent also disagree over whether EPA’s precautionary-statement regulations reach chronic risks like cancer, as opposed to only acute hazards.  The majority concludes they do, while the dissent maintains the regulatory text addresses acute hazards only.  Because cancer is a chronic condition, the dissent argues pesticide manufacturers can add a cancer warning without EPA approval.

Justice Thomas joined the majority in full but wrote separately to question whether FIFRA’s registration scheme exceeds Congress’s Commerce Clause authority, whether FIFRA unlawfully delegates legislative power to EPA, and whether agency action can carry preemptive force under the Supremacy Clause at all.  No other Justice joined that view.

Who’s Affected

The decision most directly benefits pesticide and agrochemical manufacturers defending failure-to-warn claims premised on an EPA-approved label.  The Court’s reasoning, however, leans on a comparison to other federal statutes with similarly worded preemption clauses, which suggests the analysis may be cited in disputes involving other federally regulated, labeled products.  The opinion does not address other theories—such as design defect, manufacturing defect, or advertising-based claims—that were not before the Court in this case.

What to Watch

The Judicial Panel on Multidistrict Litigation’s pending-dockets report lists roughly 3,900 active cases in the Roundup MDL as of July 1, 2026, a population of claims against which Durnell‘s reasoning will likely be tested in dismissal motions.  EPA’s glyphosate registration posture also remains unsettled in part, since the Ninth Circuit vacated the agency’s most recent 2020 interim registration review decision in 2022.

In addition, federal lawmakers have introduced legislation to override the Court’s interpretation.  The People Over Poison Act, H.R.9528, would add language to FIFRA clarifying that the law’s preemption clause “shall not be construed to prohibit or otherwise limit a claim related to the labeling or packaging of pesticides or devices under the tort law of any State.”  The bill was introduced on June 29, 2026, by Reps. Chellie Pingree (D-ME) and Thomas Massie (R-KY) and has been referred to the House Committee on Agriculture.

The case is Monsanto Co. v. Durnell, No. 24-1068 (U.S.), petition for writ of certiorari granted January 16, 2026.  A previous post on the case, written after the Court granted certiorari, can be found here.

EPA Takes TSCA Enforcement Action Against Chemical Importer

/in , , ,

EPA has initiated a far-reaching administrative enforcement action against Wego Chemical Group, alleging hundreds of violations of the Toxic Substances Control Act (TSCA) stemming from the New York-based chemical distributor’s chemical imports.

“Since at least 2016, Wego has imported hundreds of millions of pounds of hundreds of toxic chemicals, mostly from China, without meeting basic federal reporting requirements,” EPA stated in a press release announcing the action, which was filed May 22, 2026.

At the core of the complaint are allegations that Wego’s 2020 and 2024 Chemical Data Reporting (CDR) submissions were both late and incomplete.  EPA alleges the 2020 forms for more than 200 substances arrived more than four years after the reporting deadline.  The agency also claims that Wego reported all chemical use information as “not known or reasonably ascertainable” in both reporting cycles, despite allegedly relying on that same information in its sales and marketing materials.

The complaint also alleges that Wego:

  • Imported a chemical not listed on the TSCA Inventory without submitting a premanufacture notice (PMN) or import certification
  • Filed a notice of commencement (NOC) claiming importation of a substance that had not occurred
  • Failed to submit export notifications for two substances subject to proposed risk management rules
  • Distributed a substance in violation of its significant new use rule (SNUR) hazard communication requirements without filing a significant new use notice (SNUN)
  • Submitted a false certification of no manufacture

EPA seeks civil penalties under six of the complaint’s ten counts.  While no specific penalty figure is proposed, the agency notes that penalties of up to $49,772 could be assessed for each of 684 individual violations.

According to the complaint, EPA first requested TSCA compliance information from Wego in 2021 and entered into a tolling agreement with the company in July 2024.  Separately, in July 2025, an environmental organization announced it had reached its own settlement with Wego over alleged 2020 CDR violations involving 104 substances.

Industry Groups Tell Third Circuit That EPA’s TCE Exemption Is Unworkable

/in , , ,

Companies granted an exemption from EPA’s ban on trichloroethylene (TCE) are asking the Third Circuit to vacate key conditions of that exemption, arguing that the requirements are so stringent they defeat the exemption’s purpose under the Toxic Substances Control Act (TSCA).

The brief, filed May 13, 2026, is one piece of consolidated litigation in which industry groups, environmental organizations, and labor unions are contesting EPA’s TCE prohibition.  EPA has placed the delayed prohibitions for critical uses on hold pending resolution of the case.

The petitioners include a trade association, a manufacturer of a lead-acid battery component, and a company that produces a specialty material used in passports.  EPA granted exemptions to the TCE ban for both uses under TSCA section 6(g), which permits exemptions when compliance “would significantly disrupt the national economy, national security, or critical infrastructure.”

However, the exemption came with a stringent 0.2 parts per million (ppm) worker exposure limit—a threshold the petitioners argue violates TSCA’s requirement that exemption conditions still “achiev[e] the purposes of the exemption.”

Even with state-of-the-art controls, the petitioners contend that the interim existing chemical exposure limit (ECEL) would require workers to wear bulky, full-facepiece respirators at all times.  That level of PPE use is infeasible, they argue: some workers cannot wear it for medical reasons, it impedes communication, hearing, and movement, and it is intolerable to wear for an entire shift.

“EPA admits that respiratory PPE creates health and safety hazards, and the record demonstrates that respiratory PPE cannot feasibly be worn all day, every day, by employees in Petitioners’ manufacturing facilities,” the brief states.

“Petitioners will thus be unable to invoke the section 6(g) exemption and will have to shut down their operations in the United States—the very outcome the exemption was intended to avoid,” the petitioners allege.

The petitioners suggested alternative interim ECELs, including a limit aligning with the European Union and United Kingdom’s 6 ppm restriction, but say EPA “merely nodded at this figure without providing any reasoned analysis for rejecting it.”

Best Available Science

The petitioners also challenge the scientific basis for the 0.2 ppm threshold.  Their brief focuses on a rodent oral-exposure study that allegedly underpinned the interim ECEL, arguing it was methodologically flawed in multiple respects, including that its experimental and control groups were not run concurrently.  Most importantly, they argue, its linkage between low TCE exposures and congenital heart defects has not been replicated in a dozen other experiments.

“TSCA’s best-available-science requirement is meant to prevent precisely this kind of selective reliance,” the brief contends.

The petitioners also challenge EPA’s decision to limit the TCE exemption for lead-acid battery separator manufacturing to 20 years rather than the 25 years requested, arguing that the shorter duration was arbitrary.

The brief asks the court to vacate both the interim ECEL requirement and the 20-year cap on the battery-separator exemption.  (The exemption for TCE used to manufacture specialty polymeric microporous sheet materials runs for 15 years and is not at issue on this point).

The consolidated proceedings were formerly captioned United Steelworkers v. EPA, No. 25-1055 (3d Cir.).  The brief can be found in the docket for Microporous LLC v. EPA, No. 25-1080 (3d Cir.).

EPA Cannot Use Low Exposure to Justify DecaBDE Inaction, Ninth Circuit Rules

/in , , , ,

The Ninth Circuit has ruled that EPA’s decisions not to regulate certain decabromodiphenyl ether (decaBDE) exposures under the Toxic Substances Control Act (TSCA) were not supported by substantial evidence, ordering the agency to regulate or better justify its inaction in four areas: recyclable articles, disposal, wastewater, and sewage sludge.

The May 13, 2026, ruling leaves EPA’s regulations for decaBDE intact but remands them back to agency to regulate—or better defend its decision not to regulate—those areas.  It is the first time a court has weighed in on TSCA section 6(h), which requires EPA to reduce exposures to certain persistent, bioaccumulative, and toxic chemicals (PBTs) “to the extent practicable.”

Congress added section 6(h) in 2016.  EPA issued a risk management rule for decaBDE in 2021 and amended it in 2024, targeting the flame retardant’s use in products.  But the agency declined to regulate various other exposures, citing low exposures and prohibitively high costs.

Siding with environmental groups, the Ninth Circuit rejected EPA’s low-exposure rationale outright.  Because TSCA does not require EPA to conduct a risk evaluation before regulating section 6(h) PBTs, Congress already determined that any exposure warrants a regulatory response, the court held.

“[I]t is beyond EPA’s authority to justify a decision not to regulate based on there being low levels of decaBDE,” the opinion states.  “TSCA § 6(h)(4) permits EPA to consider decaBDE levels for the purpose of deciding between regulatory tools, but not in deciding whether to use a regulatory tool at all.”

The court stopped short of holding that high costs can never justify a decision not to regulate under section 6(h), but it found EPA’s cost evidence consistently inadequate.  For recyclable articles, for example, EPA’s economic analysis relied on studies not specific to decaBDE and failed to consider regulatory options short of an outright ban.

Substantial Evidence

EPA’s other justifications fared no better under TSCA’s “substantial evidence” standard, which the court characterized as a “searching review.”

On disposal, EPA argued regulations were unnecessary because the Resource Conservation and Recovery Act (RCRA) already reduces exposures to the extent practicable.  But the court held that “EPA cannot evade its responsibilities under TSCA to regulate decaBDE disposal merely by invoking EPA’s compliance with another statute regulating solid waste disposal,” while also observing that RCRA does not cover all possible disposals.

For wastewater, the court found that EPA had ignored data contradicting its position that decaBDE is not released to water.  And, on recycling, it held that the agency gave “undue weight” to its position that regulation would undermine its general pro-recycling stance.

The court also rejected EPA’s fallback argument that staged regulation justifies its current inaction.  Section 6(h) “expressly places regulation of decaBDE on an expedited timeline,” the court held, and EPA has made no commitment to address these exposures in future rulemaking.

The case is Alaska Cmty. Action on Toxics v. United States EPA, No. 21-70168 (9th Cir.).

EPA Avoids Court Order on Organophosphates, but Timeline Concerns Remain

/in , , , ,

The Ninth Circuit has declined to force EPA to act on a petition brought by nonprofits targeting organophosphate pesticides, calling the request “premature” despite noting concerns with the agency’s response timeline for certain pesticides.

The 2021 petition, brought by environmental and farmworker groups, asks EPA to revoke Federal Food, Drug, and Cosmetic Act (FFDCA) food tolerances and cancel Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registrations for organophosphate pesticides due to health harms.

In a memo issued April 27, 2026, the court generally accepted EPA’s plan to address the disputed pesticides in three groups, finding the delay thus far “below the threshold of what we have generally found to be unreasonable.”

Under EPA’s proposed schedule, the agency plans to respond to the first group of pesticides in 2026.  For the second group, EPA plans to address the FFDCA issues in 2026 and the FIFRA issues during registration review.  EPA plans to address the third group entirely in conjunction with registration review.

Still, the court expressed concern about “the lack of a concrete timeline” for resolving some of the petitioners’ FIFRA claims, particularly those involving pesticides that may present higher risks.

“EPA admits that it will not complete its registration review for any of the thirteen pesticides by the October 2026 statutory deadline,” the memo states.  “If, by the expiration of that statutory deadline, EPA still ‘does not offer a timetable’ for resolving the FIFRA-related claims for those particular pesticides presenting higher levels of risk,” the outcome may be different, the court said.

“If EPA chooses not to address the chemicals posing the greatest risk by the 2026 deadline, Petitioners are free to file a second mandamus petition as to those chemicals,” the court added, using the legal term for a petition seeking to compel agency action.

Registration Review

The court was partly persuaded by the existence of the October 2026 registration review deadline itself, which Congress extended from October 2022 through the Pesticide Registration Improvement Act of 2022, commonly known as PRIA 5.

“Congress thus judged that EPA needs more time to complete the FIFRA registration review process for the types of pesticides at issue,” the memo states.  “This weighs heavily against granting relief with respect to Petitioners’ FIFRA-related claims until after the congressional deadline has passed.”

The October 2026 deadline for registration reviews applies to pesticides registered before October 1, 2007, when Congress formally required EPA to review each registered pesticide at least once every fifteen years to ensure that it can still be used without unreasonable adverse effect on human health or the environment.

Human Health Concerns    

The 2021 petition argues that organophosphate pesticides can cause a range of unreasonable adverse effects, including neurodevelopmental harm in children at exposures “far below” EPA’s current regulatory endpoint.  According to the petition, those harms include impaired motor and mental development, reduced IQ, attention disorders, and autism associated with low-level exposure.

These alleged harms were not sufficient for the court to force EPA’s hand, however.

“The breadth of [Petitioners’] request was perhaps reasonable in 2021 in light of what the EPA characterizes as its earlier conservative assumption ‘that all the [organophosphates] cause similar neurodevelopmental effects.’”  But “all parties now seem to agree that the degree of risk does not appear to be consistent for all thirteen pesticides still at issue.”

For example, the petitioners conceded that the pesticides chlorethoxyfos, tribufos, and terbufos are lower priority at oral argument, while emphasizing greater risk associated with bensulide, the court said.  “On this record, we cannot hold that human risks justify granting the petition as to all thirteen pesticides.”

The case is In re Pesticide Action Network North America, No. 25-3955 (9th Cir.), petition for a writ of mandamus filed 6/25/2025.  The memorandum disposition is unpublished.

Senator Introduces CRA Resolution to Nullify EPA’s PFAS Reporting Extension

/in , ,

Senator Sheldon Whitehouse (D-RI) has introduced a joint resolution to disapprove EPA’s April extension of the start PFAS Reporting Rule’s reporting period start date.

The Congressional Review Act resolution, filed as S.J.Res. 187 on April 27, 2026, would immediately nullify EPA’s extension rule if passed.  The resolution currently has no cosponsors.

EPA’s extension pushed the start of the reporting period to January 31, 2027, or 60 days following the effective date of amendments narrowing the rule’s scope, whichever is earlier.  EPA proposed those amendments in November 2025, which would add exemptions for de minimis concentrations and imported articles, among others.

The extension was published on April 13, the same day the reporting period was scheduled to open.  EPA had already delayed the start of the period twice before, citing technical difficulties.

The PFAS Reporting Rule is a one-time PFAS reporting obligation under TSCA section 8(a)(7) for persons who manufactured or imported PFAS for commercial purposes between 2011 and 2022.  More on the rule is available in our archive.