Court Rejects EPA Bid to Dismiss TSCA Confidentiality Suit
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.
