EPA Moves to Dismiss Novel TSCA CBI Challenge as Untimely
A lawsuit seeking to prevent EPA from disclosing chemical identity information under the Toxic Substances Control Act (TSCA) was not timely filed, the agency told the District Court for the Middle District of Georgia on November 24, 2025.
Plaintiff Burgess Pigment Co. filed suit after receiving a 2025 notification from EPA stating that the agency would soon make a specific chemical identity publicly available. However, EPA argues that Burgess was actually required to file years earlier, when the agency first informed the company that the chemical identity was not entitled to confidential business information (CBI) protection.
At issue is TSCA section 14(g), which provides claimants 30 days to appeal a CBI denial after receiving notice from EPA. According to the agency, that notice was provided in 2020, when EPA issued an initial determination denying CBI claims Burgess had made in its 2016 Chemical Data Reporting (CDR) submission. The 2025 notification merely restated EPA’s earlier conclusion that the information was ineligible for CBI protection, the agency says.
“Allowing Burgess to challenge EPA’s determination five years later would not only undermine the statutory scheme contemplated by Congress, but it would also prove administratively unworkable,” EPA states in a memo accompanying its motion to dismiss. “Such a rule would permit companies to restart the ‘30-day clock’ simply by asking EPA to protect the confidentiality of information that EPA has already decided is not entitled to confidentiality.”
According to EPA, after the initial determination, Burgess and EPA entered into a toll agreement to extend the 30-day deadline while the parties discussed the CBI denial. EPA ultimately affirmed its determination in January 2022, which, the agency says, triggered a new 30-day appeal period ending in February 2022.
The 2025 notification was issued in response to Burgess’s 2024 CDR submission, which again asserted that the chemical identity was CBI. EPA notes that it sent a similar notification in 2023 in response to Burgess’s 2020 CDR submission.
Nondiscretionary Duty
Even if the suit had been timely filed, EPA contends that there is no basis for Burgess’s claim.
The CBI denial resulted from Burgess’s failure to timely respond to the statutorily mandated 2017 Inventory Reset Rule, which required manufacturers to take affirmative steps to maintain existing CBI claims. Because Burgess did not do so, EPA says that TSCA required EPA to make the chemical identity public.
“EPA had no discretion to choose not to move the chemical to the nonconfidential portion of the list,” the memo reads. “EPA acted in accordance with its statutory directive, and it would have been inconsistent with TSCA for EPA to decline to move the chemical.”
Although Burgess later submitted materials intended to support confidentiality, EPA contends those efforts came too late. “[W]hen Burgess belatedly attempted to seek confidentiality in 2020 and beyond, there was no longer a confidentiality claim because EPA had already determined the information was not confidential,” the agency says.
Burgess has argued that EPA continues to treat the chemical identity as confidential despite the notification letters. EPA disputes that characterization, noting that although the chemical identity has not yet appeared on the nonconfidential TSCA Inventory, it is not being treated as CBI.
“If, for instance, EPA received a [Freedom of Information Act] request for the information in the years since the claim was denied, EPA would provide the chemical identity in response to that request,” the memo states.
APA Claims
EPA also argues that Burgess has no recourse outside of TSCA section 14. The agency contends that Burgess’s Administrative Procedure Act (APA) arguments fail because the APA limits judicial review to “final agency action for which there is no other adequate remedy in court.”
“Because Burgess had an adequate remedy under TSCA, it may not pursue its claim under the APA,” the memo states.
The case is Burgess Pigment Co. v. U.S. Environmental Protection Agency, No. 5:25-cv-00309 (M.D. Ga.), filed July 18, 2025. More information on the case is available in a previous post. Burgess’s response to the motion to dismiss is due December 30, 2025.
