EPA Seeks Scientific Input as Glyphosate Review Moves Forward

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EPA’s long-running review of glyphosate is entering a new phase, with the Agency soliciting scientific input and working with the Department of Health and Human Services (HHS) to reassess the pesticide’s potential effects on human health.

Last month, EPA requested comment on a list of studies that will inform its ongoing registration review of the pesticidal substance under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This month, the Agency also announced a partnership with HHS to improve scientific coordination in the review.

Although FIFRA requires EPA to review pesticide registrations at least every 15 years, the Agency has not yet completed the registration review that began in 2009. The review has been prolonged, in part, by the Ninth Circuit’s 2022 vacatur of the human-health portion of EPA’s interim decision.

Glyphosate is best known as the active ingredient in the weed-killer Roundup. EPA has long taken the position that glyphosate is not a human carcinogen, a position shared by a number of other international regulatory authorities. However, in 2015, the International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic to humans.”

IARC’s determination was a major catalyst for litigation over Roundup’s alleged carcinogenicity. Nearly 4,000 actions are currently pending in a federal multidistrict litigation concerning Roundup product liability claims, with numerous state suits also pending.

Those plaintiffs were dealt a significant blow earlier this year by the Supreme Court. In Monsanto Co. v. Durnell, the Court held that FIFRA preempts state-law failure-to-warn claims based on the absence of a cancer warning from EPA-approved Roundup labels.

EPA’s registration review could have significant implications for this ongoing litigation. And because glyphosate is one of the most widely used pesticides in the United States, the review may also have significant agricultural implications.

Background on EPA’s Glyphosate Review

In 2020, EPA issued an interim registration review decision concluding that glyphosate posed no human-health risks of concern when used according to its label and was “not likely to be carcinogenic to humans.” Environmental and farmworker organizations challenged that decision in the Ninth Circuit. In Natural Resources Defense Council v. EPA, the court vacated the human-health portion of EPA’s interim decision and remanded it to the Agency for further analysis and explanation.

The court held that EPA’s selection of the “not likely to be carcinogenic to humans” hazard descriptor was not supported by substantial evidence because its reasoning was internally inconsistent and did not adequately follow the Agency’s Cancer Guidelines. Among other concerns, EPA acknowledged that the available evidence did not permit a conclusion regarding the association between glyphosate exposure and non-Hodgkin lymphoma, but nevertheless classified glyphosate as “not likely to be carcinogenic to humans.” The court also identified problems with EPA’s evaluation of animal-tumor studies. The court did not determine that glyphosate causes cancer; rather, it concluded that EPA had not adequately supported its classification.

The Ninth Circuit also held that EPA’s registration review decision constituted agency action triggering the requirements of the Endangered Species Act (ESA). It remanded the ecological portion of the decision without vacatur and directed EPA to complete additional review.

In September 2022, EPA withdrew the remaining portions of the interim decision, explaining that it needed additional time to address the ecological issues and satisfy its ESA obligations. EPA stated that its underlying scientific findings had not changed but that it would revisit and better explain its evaluation of glyphosate’s carcinogenic potential.

Open-Literature Search

On August 25, 2026, EPA released a list of studies screened by the Agency to inform its human health risk assessment for glyphosate. The list includes over 5,300 studies, including over one thousand studies classified as “potentially relevant.” In a separate document, EPA explained the methodology underlying the search.

The same day, EPA requested public input on the completeness of the search and asked commenters to identify additional peer-reviewed studies that may warrant consideration. The Agency initially established a September 24, 2026, deadline for comments.

On September 28, EPA extended the comment period on its search by 60 days, moving the deadline from September 24 to November 23, 2026. According to EPA, the extension is intended to provide additional time for meaningful stakeholder input.

EPA-HHS Memorandum of Understanding

On September 22, 2026, EPA and HHS announced a new interagency memorandum of understanding (MOU) intended to expand scientific coordination in EPA’s glyphosate registration review. Under the agreement, the agencies will exchange scientific information, identify research gaps, and coordinate additional research concerning potential human health effects of glyphosate.

EPA and HHS will establish a joint technical working group composed of experts from EPA’s Office of Pesticide Programs and several HHS components, including the National Institute of Environmental Health Sciences, National Toxicology Program, National Cancer Institute, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention’s National Center for Environmental Health, and the Food and Drug Administration.

The agencies identified several areas for additional research and coordination, including the toxicology of glyphosate formulations and surfactants, occupational epidemiology, human exposure and biomonitoring, and dietary exposure. EPA stated that its updated human health assessment will evaluate evidence concerning cancer, genotoxicity, reproductive and developmental effects, as well as exposure from glyphosate-based formulations, occupational uses, and dietary sources, including preharvest applications.

The MOU creates no new authority for either agency and does not dictate the outcome of the registration review. EPA retains sole responsibility for registration decisions under FIFRA.

What to Watch

EPA currently anticipates completing the updated human health risk assessment in early 2027. That assessment will provide another opportunity for public comment and could inform subsequent regulatory decisions concerning glyphosate. In the meantime, under the MOU, EPA and HHS intend to make appropriate materials produced by the working group available in the glyphosate registration-review docket as they are finalized.

In addition, the first Roundup trial following Durnell is currently underway. While state-law failure-to-warn claims are no longer viable, the trial may be an early indicator of whether design defect or other torts can succeed. That case is Aretino v. Monsanto Co., No. 20SL-CC03676 (Mo. Cir. Ct., St. Louis County), filed July 10, 2020.

Interagency MOU Addresses Chemical Contaminants in Meat, Poultry, and Egg Products

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In a move described as advancing the Make America Healthy Again (MAHA) initiative, the Department of Agriculture (USDA), Department of Health and Human Services (HHS), and EPA have updated a memorandum of understanding (MOU) addressing drug residues, pesticide residues, and chemical contaminants in meat, poultry, and egg products.

Announced July 10, 2026, the MOU is intended to coordinate federal activities concerning chemical residues and contaminants that have the potential to adulterate those foods. It supersedes a prior 1984 agreement between the same agencies.

According to a USDA press release, as part of the effort, USDA’s Food Safety and Inspection Service (FSIS) has implemented a new laboratory method to monitor levels of 18 heavy metals in foods. USDA says that elevated levels will lead to further assessment and possible regulatory response. The press release adds that FSIS will “expand its surveillance for heavy metals to include processed foods, such as sausages and ready-to-eat meals, which combine ingredients from multiple sources.”

Coordinating Federal Oversight of Chemical Residues

FSIS primarily oversees the safety and regulation of meat, poultry, and egg products and tests these products for chemical residues through programs such as the National Residue Program. FDA oversees most other foods, live food-producing animals before slaughter, animal food, and animal drugs. EPA regulates pesticides and establishes allowable pesticide residue levels in food, including food for food-producing animals.

Under the MOU, FSIS, FDA, and EPA will coordinate on sampling and testing, tolerances and screening levels, and potential regulatory violations. Among other things, FSIS will provide FDA with weekly residue reports and keep FDA and EPA informed of its sampling and testing programs. FDA and EPA will also notify FSIS when they establish or amend certain tolerances, exemptions, action levels, or safe levels that may relate to FSIS-regulated products.

The agencies also agree to notify one another of information concerning the actual, suspected, or anticipated presence of chemical residues or contaminants that may constitute or result in violations of applicable federal food safety laws. FDA will review reports of potentially adulterated food and, when appropriate, investigate the circumstances that may have caused food-producing animals to be exposed before slaughter. EPA will similarly review reports of pesticide misuse or other potential violations and, when appropriate, investigate or refer the matter to the appropriate state enforcement authority.

A Senior Executive Council with representatives from each of the three agencies will oversee the arrangement and meet at least annually. The MOU also establishes procedures for sharing confidential and non-public information among the agencies, subject to applicable confidentiality requirements.

Ninth Circuit Upholds EPA’s 2024 New Chemicals Rule

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Less than two weeks after oral argument, a Ninth Circuit panel has denied consolidated challenges to EPA’s 2024 rule governing reviews of new chemicals under the Toxic Substances Control Act (TSCA).  The ruling upholds EPA’s case-by-case evaluations of persistent, bioaccumulative, and toxic substances (PBTs) for streamlined new-chemical reviews.  It also upholds the Agency’s decision not to address a comment from workers’ unions advocating greater transparency around the substances to which workers are exposed.

The 2024 New Chemicals Rule

On December 18, 2024, EPA published a rule revising its new chemical review regulations for the first time since Congress substantively amended TSCA in 2016.  Some revisions were designed to align the regulatory text with the 2016 amendments, while others addressed EPA’s procedures for reviewing new chemical applications.

At issue in the case, the rule narrowed eligibility for the Low Volume Exemption (LVE) and Low Releases and Low Exposures (LoREX) exemption.  These exemptions are streamlined alternatives to the lengthy premanufacture notice (PMN) process typically required before a TSCA-regulated substance may be introduced into commerce.  Under 40 CFR § 723.50(d)(2), PFAS are categorically ineligible for both exemptions, and PBTs are ineligible if they have “anticipated environmental releases and potentially unreasonable exposures to humans or environmental organisms.”

In the rule, EPA characterized the eligibility restrictions for PBTs as consistent with existing policy and stated that it “expects that most exemptions for PBT chemical substances will not be granted.”  The Agency also noted that it had denied all LVE notices for PFAS submitted since 2021.

Environmental and Workers’ Union Challenges

The rule was separately challenged by environmental groups and a workers’ union.

The environmental groups—Alaska Community Action on Toxics and the Environmental Defense Fund—argued that the rule did not go far enough, contending that PBTs should be categorically ineligible for the LVE and LoREX exemptions.  In their opening brief, they argued that TSCA Section 5(h) only allows EPA to create exemptions if its terms ensure that the substance “will not present an unreasonable risk.”  Because EPA “recognize[s] that new PBTs are inherently risky,” they alleged that EPA acted arbitrarily and exceeded its authority by declining to make all PBTs ineligible.  The groups further argued that the regulatory scheme “turns the statute on its head” by making PBTs presumptively eligible unless EPA affirmatively determines that the substance could result in potentially unreasonable exposure.

By contrast, the union—United Automobile, Aerospace and Agricultural Implement Workers of America (UAW)—challenged the rule for what it failed to address.  During the rulemaking, UAW and other unions jointly filed a comment describing the difficulties workers and unions face in determining the substances workers are exposed to, arguing it means that unions cannot weigh in on appropriate worker protections or confirm that employers are complying with restrictions.  In its lawsuit, UAW argued that EPA failed to consider the comment in violation of the Administrative Procedure Act (APA) and contrary to Congress’s intent that “the new chemical review process be transparent.”

The challenges were filed shortly before the presidential transition.  After obtaining a stay to consider the rule, the incoming Trump administration decided to defend it.

The Ninth Circuit’s Ruling

The Ninth Circuit denied both petitions in its seven-page, not-for-publication disposition issued August 26, 2026.

Addressing the environmental groups’ arguments first, the court held that TSCA delegates discretionary authority to EPA.  Section 5(h) allows EPA to consider exemptions “upon application,” the court explained, so case-by-case evaluations of PBTs are permissible.  The panel also concluded that EPA’s decision is not arbitrary and capricious because EPA considered and rejected the environmental groups’ preferred approach.  “Because the PBT Regulation governs new chemical substances, including those not yet developed, it was reasonable for EPA to reject a categorical ban,” the disposition states, noting heightened deference to agencies making predictive or scientific judgements.

As for UAW, the court held that the unions’ comment was only “tangential” to the proposed rule.  “The only aspect of EPA’s proposed rule that UAW cited was EPA’s proposal to change how certain scientific information would be made public,” but “UAW’s comment did not discuss the relative benefits of publication through either medium or address any matter germane to EPA’s proposed rule,” so EPA could lawfully decline to address the comment, the court held.

The case is Alaska Community Action on Toxics v. EPA, No. 25-158 (9th Cir.), docketed January 10, 2025.

EPA’s Battery-Cathode SNURs Test the Limits of “Significant New Use”

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EPA has proposed two significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) that would extend restrictions across the full lifecycle of the cathode substances in lithium-ion batteries, including recycling and reclamation.  Industry stakeholders note that this is a departure from ordinary SNUR practice.  The rules, published on April 24, 2026, cover two generically identified “cobalt lithium manganese nickel oxide, metals-doped” substances used as cathode active materials (CAMs) in lithium-ion batteries.  The comment period, extended once, closed July 10, 2026.  As of this writing, EPA has not finalized, withdrawn, or re-proposed the rules.

What the Proposal Would Do

Under the proposed rules, EPA would regulate the CAMs even after the substances have been manufactured into articles.  Usually, the agency exempts substances in articles from SNUR obligations.

The proposed rules impose a labeling requirement for the articles—the batteries—that contain these substances.  In addition, recycling and reclamation restrictions would apply when the batteries are shredded or otherwise handled in a manner that generates dust.  These restrictions include 99% dust-control efficiency, no release to water, hazardous-waste disposal, and respiratory protection.  In other words, it would be a significant new use to manufacture, process, recycle, or reclaim the material without these controls.

The Federal Register notice explained that the proposed SNURs merely extend restrictions from the Section 5(e) consent orders imposed on the original premanufacture notice (PMN) submitters to all manufacturers and processors.

Why the Approach is Contested

Comments on the proposed rule assert that much of what EPA proposed is impracticable if not impossible.  The Alliance for Automotive Innovation argued that the proposed SNUR would “impose responsibility for the future management of individual chemical constituents throughout a downstream recycling infrastructure that is outside of the manufacturer’s ownership or control.”  Their comments note that while such regulation may be permissible under TSCA, regulating an article through its lifecycle base on the chemicals within the article is not the intent of the statute.

The Chemical Users Coalition—whose members include Airbus, Boeing, Intel, Lockheed Martin, and RTX—asked EPA to withdraw the proposal.  Their comments argued that the terms “processing” and “use” are unclear as applied to repair, import of batteries containing the SNUR substances, either by themselves or as part of larger articles, and recycling.  In addition, according to the Coalition, EPA failed to satisfy the threshold requirement of TSCA Section 5(a)(5) which requires that the Administrator make an affirmative finding that the reasonable potential for exposure to the chemical substance through the article “justifies notification” before imposing a SNUR for the “import or processing of a chemical substance as part of an article.  The Coalition also flagged that it is possible that there are ongoing uses of the substance that would not have been subject to TSCA Section 5 notice requirements—e.g., the import of the substances when incorporated into an article and the subsequent recycling of such articles.  This, the Coalition argues, was not addressed in the proposed rule.

Who is Affected, and What to Watch

The proposed rule reaches broadly beyond chemical manufacturers to battery producers, automakers, and recyclers, and importers of batteries and battery-containing articles. The regulation would be especially onerous for importers.  In most cases chemical composition of articles is not readily available, which may make it hard to know whether an imported battery contains a covered substance or if one needs to request an applicability determination from the supplier.

If the final rule keeps the article and recycling requirements in their current form, industry is likely to challenge the agency’s statutory authority for the rulemaking.

D.C. Circuit Upholds EPA’s CERCLA Designation of PFOA and PFOS

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The D.C. Circuit has upheld EPA’s designation of two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  In Chamber of Commerce v. EPA, decided August 18, 2026, the court denied every petition challenging the designation, leaving the 2024 rule in place.

What the Court Decided

Industry petitioners, led by the U.S. Chamber of Commerce and joined by chemical, fuel, waste, recycling, construction, and paper trade associations, raised three lines of attack: (1) that EPA misread CERCLA’s “may present substantial danger” standard; (2) that its cost-benefit analysis violated the Administrative Procedure Act’s notice requirement and was arbitrary and capricious; and (3) that regulating amid scientific and economic uncertainty was itself unreasonable.  The panel rejected all three.

Starting with the standard for designation, 42 U.S.C. § 9602(a) directs EPA to designate as hazardous those substances that, when released into the environment, “may present substantial danger to the public health or welfare or the environment.”  Petitioners read that phrase to require a finding that harm will occur on release.  Interpreting the statute de novo and without deference to EPA under Loper Bright Enterprises v. Raimondo, the court disagreed.  “May” denotes possibility, not certainty, and the statute directs EPA to forecast the risk of harm at the time a substance is released, the court held.  The phrase “substantial danger” means that the risk of harm must be serious and real, not hypothesized, which the court said answers the worry that EPA’s reading would let the agency reach something as innocuous as table salt.  Requiring absolute certainty about every release, the court added, would paralyze a statute Congress designed to act on scientific probabilities.

The court rejected two related theories within the same challenge.  First, it declined to read an inflexible hierarchy into CERCLA under which “hazardous substances” must clear a higher bar than “pollutants or contaminants.”  The two are separate designation regimes, the court held, and a substance may begin as a pollutant or contaminant and later be designated a hazardous substance as the science develops.  Second, the court found no nondelegation or void-for-vagueness problem.  Tying EPA’s authority to scientific findings under a public-health standard supplies the “intelligible principle” the nondelegation doctrine requires, the decision states, and the prior regulation of PFOA and PFOS under CERCLA gave regulated parties fair notice that they could be listed.

On the notice challenge, the court held that EPA’s Regulatory Impact Analysis was a “logical outgrowth” of the earlier Economic Assessment, so the additional cost data introduced in the final rule required no fresh comment round.  Notably, the court did not decide whether CERCLA requires EPA to weigh costs in a designation at all.  EPA assumed it must, and the panel assumed the same without deciding, which leaves that question open for a future challenge.

As for regulating amid uncertainty, the court held that EPA acted reasonably in designating PFOA and PFOS despite acknowledged gaps in what it knows about where the chemicals are, what cleanup will cost, and the rule’s downstream effects.  The decisive point was that designation is only the first of many steps before liability attaches.  A long sequence of contingent regulatory actions, together with CERCLA’s statutory limits on liability, stands between listing a substance and any party actually bearing cleanup costs.  Accordingly, the court concluded that EPA’s choice to regulate now rather than wait for certainty was not arbitrary and capricious.

Why It Matters

The designation, effective July 8, 2024, was EPA’s first use of 42 U.S.C. § 9602(a) to list a substance directly, rather than by reference to another environmental statute.  Its practical consequences are now in force: releases of one pound or more of PFOA or PFOS in a 24-hour period trigger reporting obligations, federal property transfers carry notice duties, and most significantly, responsible parties face CERCLA’s strict, joint-and-several liability and cost-recovery regime.

The ruling reaches well beyond PFAS manufacturers.  Waste management, recycling, construction, and other “passive receivers” that handled PFOA- and PFOS-containing materials without making them may now sit within the liability chain.  As the court stressed in rejecting the uncertainty challenge, though, listing is not the same as liability: CERCLA’s defenses, including its act-of-God, third-party, de minimis, de micromis, and innocent-landowner provisions, continue to limit who ultimately pays.

What to Watch

The decision is recent, and the deadlines for a petition for rehearing en banc or a petition for certiorari have not yet run, so the litigation may not be over.

Several aspects of the ruling bear on future CERCLA designations.  Because the court reviewed EPA’s reading de novo and still upheld it, the agency’s designation authority now rests on the statute’s best reading rather than on judicial deference, a firmer footing in the wake of Loper Bright.  EPA committed to notice-and-comment rulemaking before updating this designation, and it has said it intends to develop a broader framework for § 9602(a) designations generally, though the scope and timing of any such rulemaking remain to be seen.  And because the court left open whether cost must be weighed in a designation at all, that question is likely to return as EPA considers additional substances.

For background on the agency’s decision to defend the rule, see our previous post on the litigation.

The case is Chamber of Commerce v. EPA, No. 24-1193 (D.C. Cir.), filed June 10, 2024.

Court Rejects EPA Bid to Dismiss TSCA Confidentiality Suit

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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

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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

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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

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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

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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.