Environmental Group Petitions for Review of EPA’s New Confidential Business Information Rule

On June 29, 2023, the Environmental Defense Fund (EDF), a non-profit organization, filed a petition in the US Court of Appeals for the District of Columbia requesting a review of EPA’s recently finalized rule Confidential Business Information Claims Under the Toxic Substances Control Act (TSCA) (88 FR 37155).  As described in a previous Verdant Law blog post, the final rule implements new requirements for the assertion and treatment of TSCA confidential business information (CBI) claims in light of the Lautenberg Amendments to TSCA.

In a non-binding statement of issues filed August 21, EDF listed the following as preliminary issues to be raised in the petition: whether the final rule is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law because…

  1. It would allow submitters to assert CBI claims to shield the information from the public that TSCA makes categorically ineligible for CBI protection;
  2. It would not require substantiation or EPA review of a CBI claim that was asserted before a chemical’s commercialization for specific chemical identity once the chemical is commercialized;
  3. It unlawfully adopts a regulatory definition of “health and safety study” that is narrower than the TSCA definition, denying TSCA-mandated public access to important information on chemicals;
  4. The Agency purports to give itself unlawfully broad discretion through its regulations where TSCA imposes a duty upon the Agency; or because
  5. It reduces the transparency previously required under EPA’s CBI review procedures without adequate justification.

Briefs have not yet been filed, and EDF did not file a memorandum detailing its positions, so no additional information on EDF’s positions is currently available.