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.

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.

EPA Takes TSCA Enforcement Action Against Chemical Importer

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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

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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

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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.).

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

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Update (August 28, 2026)

On August 5, 2026, a motion to proceed to consideration of the resolution failed in the Senate 48-50.  Sen. Susan Collins (R-ME) joined all Democrats in supporting the motion.

* * *

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.

EPA to Host May 6 Webinar on TSCA CBI Claim Expirations

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On May 6, 2026, at 4:00 p.m. EDT, EPA will host a webinar on expiring confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA).

According to EPA, the webinar will help companies, stakeholders, and the public understand the regulatory requirements governing the lifecycle of CBI claims, including how to determine whether a claim is expiring and how to request an extension.  EPA will also demonstrate the Central Data Exchange (CDX) application that TSCA submitters must use to request extensions, address frequently asked questions, and outline effective ways to communicate with the agency about the CBI claim expiration process.

Registration is available here.

Last week, EPA released the first list of expiring CBI claims and announced the deployment of the CDX extension request tool in advance of the first expirations, which begin on June 22, 2026.  Additional details on the list of expiring claims and the CDX tool are available in a previous post.

EPA Releases List of Expiring CBI Claims, CDX Tool for Extensions

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On April 23, 2026, EPA announced the release of the first list of expiring confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA).

Each claim on the list is identified by TSCA case number, expiration date, and submission type.  The inaugural list includes 294 claims that are set to expire between June 22 and August 1, 2026.  EPA says it will update the list monthly.

The list is intended to help meet TSCA’s requirement that EPA notify submitters at least 60 days before a claim expires.

According to the press release, EPA has also deployed a new “TSCA Section 14(e) CBI Claim Extension Request” tool in CDX, its electronic filing system.  Companies can use this tool to request a 10-year extension for an expiring claim, which must include substantiation of the need for continued CBI protection.

Requests for extension must be submitted at least 30 days before a claim’s expiration date.  EPA warns that failure to submit a timely request may result in public disclosure of the CBI without further notice to the submitter.

In addition to publishing the list, EPA is notifying submitters directly through CDX as claim expirations approach.  EPA advises companies to ensure their contact information in CDX is current to receive these notices.

CBI claims appear across a wide range of TSCA submissions.  The first list includes claims made on new chemical applications (such as PMNs and LVEs), Chemical Data Reporting submissions, import and export materials, and section 8(e) substantial risk notifications, among others.

Expiration Dates

As discussed in detail in a previous post, 2016 amendments to TSCA now mean most CBI claims expire ten years after assertion.  Because those amendments were enacted on June 22, 2016, the first expirations under the revised statute will occur on June 22, 2026.

Companies should be mindful, however, that CBI claims for specific chemical identities can expire less than 10 years after assertion if another company has also asserted a claim for the same chemical.  That is because expiration dates for chemical identity claims are set 10 years from the first approved confidentiality claim for the chemical identity.

Companies should also note that certain CBI claims are exempt from expiration: specifically, those that are statutorily exempt from substantiation requirements and EPA CBI review.

More information on CBI expirations can be found in a January 2026 Federal Register notice and on EPA’s website.

Update (May 7, 2026)

Yesterday, May 6, 2026, EPA published a revised list of expiring claims.  The revised list strikes out a number of submissions that are actually not subject to expiration.  According to EPA, these include submissions where:

  • All CBI claims were withdrawn in the submission at some point after it was filed
  • The submission contains only exempt CBI claims
  • The initial submission was made prior the enactment of the Lautenberg Act
  • The submission is of a type excluded from CBI review
  • All claims were denied

EPA also published two other lists: a list of CBI chemical identities that are expiring in June or July 2026, and a list of companies with claims expiring in June or July 2026.  All three lists can be found on EPA’s website.

PFAS Reporting Rule Delayed Again Amid Ongoing Rulemaking

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EPA has delayed the start of the PFAS Reporting Rule reporting period for the third time as the agency finalizes amendments that would narrow the rule’s scope.

The reporting period will now begin January 31, 2027, or 60 days following the effective date of the final rule implementing the amendments, whichever is earlier.  EPA says that it expects to release the final rule “well before” the January 31, 2027, fallback date.

The extension will be published in the Federal Register on April 13, 2026, the same day the reporting period had been scheduled to begin.

Background

Promulgated under section 8(a)(7) of the Toxic Substances Control Act (TSCA), the PFAS Reporting Rule requires all persons who manufactured or imported PFAS for commercial purposes between 2011 and 2022 to report chemical information to EPA.  For most manufacturers and importers, the original reporting deadline was May 13, 2023.  However, EPA delayed the start of the reporting period in 2024 and again in 2025, citing technical difficulties with the reporting tool.

In the 2025 postponement, EPA also signaled that it was considering reopening the rule’s reporting requirements.  Subsequently, in November 2025, EPA released a proposed rule introducing various exemptions to the reporting requirements.  These include exemptions for mixtures and products containing de minimis PFAS concentrations, imported articles, and certain byproducts and impurities.

More on the PFAS Reporting Rule can be found in our topic archive.

Manufacturer Challenges Court-Ordered CBI Disclosure

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A specialty materials manufacturer is suing EPA to prevent the release of its unredacted premanufacture notices (PMNs) under seal in separate litigation challenging the transparency of EPA’s new chemicals program under the Toxic Substances Control Act (TSCA).

A March 23, 2026, court deadline for EPA to produce the documents has now passed without EPA compliance, as the agency, environmental groups, and the manufacturer battle over the appropriate course of action.

The five environmental groups brought the original suit in 2020, alleging that EPA violates TSCA by withholding certain information from the public and allowing overly broad confidential business information (CBI) claims.  In December 2025, over EPA’s objections, the D.C. District Court ordered the agency to produce unredacted PMNs under a protective order as part of the administrative record.

Arkema, Inc. submitted two of those 84 PMNs.  After EPA notified the company of the impending disclosure, Arkema filed suit on March 13, 2026, to block it.

While TSCA allows EPA to disclose CBI as required by a court order, Arkema argues that the scope of the disclosure encompasses information beyond what is at issue in the case.  EPA’s failure “to narrow appropriately the scope of CBI disclosures to only those necessary and related to the claims at issue is both arbitrary and capricious,” the complaint states.

Arkema further contends that “the terms of the protective order are insufficiently protective of proprietary information” and impose “substantially less stringent requirements than EPA itself requires to protect CBI” because they lack provisions for safe storage and handling, training, designated work areas, limits on the number of recipients, a central oversight contact, or recourse for inadvertent disclosures.

Arkema’s suit prompted EPA to move for a stay of the disclosure order on March 17.  While “Arkema seeks relief only as to the information that it claims is CBI,” EPA argues that the lawsuit implicates all CBI-designated materials at issue in the case.  In addition, the agency warns that allowing separate production of Arkema’s PMNs could inadvertently reveal which PMNs belong to Arkema and thereby compromise its CBI claim.

Environmentalists’ Response

In a March 19 response, the plaintiffs argue that Arkema’s suit and EPA’s motion are a delay tactic in the long-running litigation.

EPA should never have notified Arkema of the impending disclosure, the plaintiffs contend, because multiple statutory notification exceptions apply.  Under the plaintiffs’ reading of TSCA, notification is a precondition to filing suit—meaning there is “no basis for” the new challenge.

This “should have been evident to EPA,” the plaintiffs allege.  “Nevertheless, EPA voluntarily sent a letter to Arkema incorrectly stating they had a right to appeal….Now that a single manufacturer has submitted such an appeal, EPA turns around and asks this Court yet again to halt production of all 84” contested PMNs, not just Arkema’s.

If EPA believed that a manufacturer could challenge the disclosure and enjoin EPA from complying with the court’s order, it should have said so, the plaintiffs argue.  “Instead, it remained silent, thereby inviting the current procedural mess.”

Nor has EPA met its burden to receive its requested relief, since it has not alleged any hardship, the response continues.  And despite the company’s CBI claims, the plaintiffs note that it may already be apparent which of the sanitized PMNs—already provided to the court—belong to Arkema: one contains an attached safety data sheet identifying the company by name, and another includes “a number of documents with Arkema’s letter head.”

The plaintiffs further argue that six years of media coverage make it implausible Arkema was unaware its PMNs might be disclosed, alleging the company “has slept on its rights.”  Arkema “never claims that it did not know of this lawsuit or the potential implications for its PMNs, but instead has carefully worded its allegations” to say only that it was never informed of active discussions about the scope and terms of releasing its CBI.

EPA’s Reply

In a March 20 reply, EPA says it is agreeable to the environmental groups’ suggestion that the parties meet and confer about potential consolidation or modification of the protective order to address Arkema’s concerns.  But EPA reiterates its request for a stay, arguing that the agency “is caught in an untenable situation” that demonstrates “clear hardship.”

“Requiring EPA to produce any of the unredacted PMNs would prematurely decide Arkema before the parties (EPA, Plaintiffs, and Arkema) have an opportunity to resolve the competing positions and defeat the purpose of coordination and possible consolidation or modifications to the protective order,” the reply states.

EPA contends its disclosure notifications to Arkema and other companies were required, arguing that none of the statutory exemptions apply.  The agency also notes that, due to difficulties confirming receipt, a subset of companies are still within TSCA’s 30-day window—triggered by notification—to file suit to enjoin disclosure.

EPA further argues that whether it can selectively withhold only Arkema’s PMNs is a legal question that should be resolved in the new litigation.  “Until the parties or the Court resolve that legal question, EPA proceeds cautiously,” the reply states, citing TSCA provisions imposing criminal penalties for wrongful CBI disclosures.

On March 25, the environmental groups notified the court that EPA failed to produce the unredacted PMNs by the March 23 deadline.

The case is Arkema Inc. v. EPA, No. 26-cv-886 (D.D.C.).  The underlying case is Environmental Defense Fund v. Zeldin, No. 20-cv-762 (D.D.C.).