Governors Urge EPA to Add Microplastics to UCMR 6 Drinking Water Monitoring

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Democratic governors from seven states have petitioned EPA to include microplastics in its upcoming Unregulated Contaminant Monitoring Rule 6 (UMCR 6), triggering a Safe Drinking Water Act (SDWA) mandate for EPA to include microplastics in the rule unless the administrator determines it “would prevent the listing of other contaminants of a higher public health concern.”

In the petition, dated November 26, 2025, the governors argue that monitoring microplastics under UCMR 6 would establish a foundation for the future promulgation of drinking water standards.  “[T]he potential risks to public health posed by this contaminant, its expected prevalence, the need for a nationwide testing standard in order to better understand the foregoing, and the great public interest in this contaminant together warrant monitoring under the UCMR for future regulation under SDWA,” the petition states.

“[I]nformation on [microplastics’] prevalence, health impact, and public interest is ahead of other aspects of the scientific and policy state of play, especially consistent definitions and testing methodologies,” it adds.  “By including microplastics in UCMR 6, EPA can provide leadership to the scientific and regulatory community on consistent definitions and testing methodologies that lag behind.”

The petition identifies several potential public health concerns associated with microplastics, including their ability to act as vectors for toxic chemicals.  Other cited risks include cellular and tissue damage and potential developmental effects in children.

The petition also highlights the role of consumer products in the generation of microplastics.  It distinguishes between primary microplastics, which are intentionally manufactured for use in cosmetics and in plastic production processes, and secondary microplastics, which result from the degradation and wear of products such as textiles, tires, paints, fertilizers, mulch films, and food packaging.

Statutory Context

EPA issues the UMCR every five years to require public water systems to collect occurrence data for contaminants that are not yet subject to SDWA drinking water standards.  The most recent UMCR, promulgated in 2021, required monitoring for lithium and 29 PFAS.

Despite microplastics’ heterogeneity, the governors—representing New Jersey, Delaware, Illinois, Maryland, Michigan, Wisconsin, and Connecticut—argue that microplastics qualify as a “contaminant,” under SDWA, which broadly defines the term as “any physical, chemical, biological, or radiological substance or matter in water.”

A petition from seven governors is sufficient to require EPA to include a contaminant in a UCMR unless the administrator determines that another contaminant presents a higher public health priority.  No more than 30 contaminants may be included in a single UCMR.

Additional information on UCMR 6 is available on EPA’s website.

New Jersey PFAS in Products Bill Awaits Governor’s Signature

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On December 22, 2025, New Jersey’s legislature passed SB 1042, which would restrict the use of intentionally added PFAS in cosmetics, carpet treatments, and food packaging, and impose additional labeling requirements for cookware.  If signed into law, New Jersey would join over a dozen states that have adopted similar restrictions.

The bill employs a familiar definition of PFAS: “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.”

Product Bans and Labeling Requirements

Two years after enactment, SB 1042 would ban the sale of the following products with intentionally added PFAS:

  • Cosmetics
  • Carpet or fabric treatments
  • Food packaging

In addition, two years after enactment, SB 1042 would require that cookware containing intentionally added PFAS in a handle or food contact surface include the statement “This product contains PFAS” on its product label.  This statement would be required in both English and Spanish and on online listings.

The bill provides the New Jersey Department of Law and Public Safety’s Division of Consumer Affairs significant enforcement authority, including civil penalties of up to $20,000 per day per violation and the ability to conduct random audits to ensure manufacturer compliance.

Exceptions and Exclusions

The bill includes several exemptions that may reduce compliance burdens for manufacturers:

  • Trace quantities: Intentionally added PFAS does not include “a technically unavoidable trace quantity of PFAS which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product or product component.”
  • Cosmetics: The prohibition does not extend to electronic components or internal components of cosmetic products.
  • Cookware: Products intended solely for commercial use are exempt. Cookware is also exempt from labeling if its surface area cannot accommodate a label of at least two square inches and it lacks an exterior container, wrapper, or tag.

Unlike some state-level PFAS legislation, SB 1042 does not establish specific limits on the amount of total organic fluorine in covered products.

Other Provisions

The bill directs the New Jersey Department of Environmental Protection (NJDEP) to:

  • Conduct PFAS research and environmental monitoring
  • Recommend additional product bans
  • Operate a source reduction program

The legislation appropriates $4.5 million for NJDEP to carry out these objectives.  NJDEP would be required to submit annual reports starting two years after enactment to summarize its findings.

More on SB 1042, known as the “Protecting Against Forever Chemicals Act,” can be found on the New Jersey Legislature’s website.

Challenge to Mondelēz Sustainability Claims Advances With Narrowed Scope

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A Illinois judge has allowed a putative class action challenging sustainability claims on Mondelēz International, Inc. products to proceed, while dismissing claims involving unpurchased products and requests for injunctive relief.

The case concerns a variety of sustainability-related representations on Mondelēz products, including “100% Sustainably Sourced Cocoa” claims on Oreo-brand cookies.  The plaintiff, a California consumer, alleges that these representations are misleading because cocoa supply chains involve child and forced labor and environmentally destructive practices.

In an order issued December 18, 2025, the court found the plaintiff’s theory of deception plausible.  While agreeing with Mondelēz that the plaintiff “cannot rely solely on sector-wide allegations,” the court concluded that she pleaded “sufficient Mondelēz-specific allegations to survive a motion to dismiss,” including references to an investigative exposé and prior litigation detailing labor abuses.

Mondelēz also argued that its use of the term “sustainable” was nonactionable puffery tied to its Cocoa Life program, which has sustainable aspirations.  But when read together with the front-label “100%” promise and back-panel language about “protect[ing] people & planet,” the court held that a reasonable consumer might believe that Oreo’s sourcing practices are “100% sustainable.”

The court did, however, narrow the scope of the case.  It rejected the plaintiff’s attempt to represent all purchasers of Mondelēz products bearing sustainability claims, limiting the action to the Oreo and Toblerone products she personally purchased.  Acknowledging a split among courts on this issue, the court held that the plaintiff lacked standing to pursue claims involving unpurchased products at this stage of the litigation.

For similar reasons, the court dismissed the plaintiff’s claim for injunctive relief, concluding that any future injury was “paradigmatically speculative.”

The court also pared back the Toblerone claims, holding that the Cocoa Life seal in isolation could not be misleading.  Because the Toblerone bars did not include accompanying sustainability text, “it necessary narrows” the plaintiff’s claims, the court held.

Consolidation Denied

Mondelēz separately moved to consolidate the case with another pending challenge to its “100% Sustainably Sourced Cocoa” representation and Cocoa Life seal.  The court denied the motion, finding that consolidation would prejudice the other plaintiff.

The second challenge focuses on Mondelēz’s admitted practice of mixing cocoa beans from Cocoa Life-registered farms with beans from unregistered farms.  That plaintiff alleges that Mondelēz’s “100%” representation is misleading because the company uses a “mass balance” accounting approach and fails to disclose the resulting lack of traceability and compositional uncertainty.

As the court summarized, “one plaintiff disputes Cocoa Life’s sustainability, and the other objects to there not being enough Cocoa Life cocoa in the final product.”

Although Mondelēz argued that the differing theories were relevant to class certification rather than consolidation, the court found the distinction unpersuasive.  “Certification remains a question for another day,” the court explained, “but for now, it seems clear that all parties believe it untenable to pursue two theories of deception in one class action.”  The court noted that interim class counsel would therefore be “likely, if not certain,” to abandon one of the theories.

The motion observes that counsel “previously abandoned a different consolidated plaintiff’s derivative claims,” and that the two theories here “seemingly conflict” due to the second plaintiff’s “indifference with ‘the integrity of the Cocoa Life program.’”

The cases are Waggener Van Meter v. Mondelēz International, Inc., No. 24-cv-7368 (N.D. Ill.), and Pearson v. Mondelēz International, Inc., No. 25-cv-10819 (N.D. Ill.).

EuroChem Faces TSCA Lawsuit Over Alleged CDR Reporting Failures

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On December 15, 2025, the Center for Environmental Health (CEH) filed suit against EuroChem, alleging that the fertilizer giant failed to report billions of pounds of chemicals imported into the US between 2016 to 2019.

EPA’s Chemical Data Reporting (CDR) rule, promulgated under the Toxic Substances Control Act (TSCA), requires that manufacturers and importers report all chemicals manufactured or imported in volumes of 25,000 pounds or more per site per year.  According to CEH, EuroChem failed to submit CDR reports by the 2021 reporting deadline for at least nine chemicals that allegedly exceeded this threshold during the 2016–19 reporting period.

The chemicals at issue include ammonium nitrate and ammonium sulfate, which CEH claims “cause respiratory irritation if inhaled and can lead to serious health problems with significant exposure,” according to a press release announcing the lawsuit.  Another chemical, monoammonium phosphate, was allegedly imported in quantities of over 45 billion pounds in 2018 alone.

“Eurochem’s failure to report these imports undermines EPA’s efforts under TSCA to evaluate and address chemical risks,” the complaint reads.  “It also prevents the public from tracking the movement of unsafe chemicals in commerce as well as monitoring their presence in communities”

The lawsuit is the latest in a series of actions brought by CEH, which systematically cross-references publicly available import data with CDR submissions to identify potential violations.  According to the press release, CEH has settled with fourteen companies to date over their CDR omissions.

Chemium Settlement

In the press release, CEH also notes that it recently reached a settlement with Chemium International Corporation, a Texas-based chemical supplier, for similar alleged CDR violations.  According to CEH, Chemium submitted CDR reports to EPA for eight chemicals imported between 2016 and 2019 and agreed to conduct an internal audit.

A post discussing another recent CEH CDR settlement, with Wego Chemical Group, can be found here.

Oregon Defends Packaging EPR Program, Argues Court Lacks Jurisdiction

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Oregon Environmental Quality Commission (EQC) officials are asking a federal court to dismiss a challenge to the state’s extended producer responsibility (EPR) law and implementing regulations, arguing that the court lacks subject-matter jurisdiction.

The motion to dismiss, filed December 22, 2025, comes after the plaintiff, the National Association of Wholesaler-Distributors (NAW), asked the District Court for the District of Oregon to halt the program on November 24, 2025.

According to the defendants, the Eleventh Amendment bars NAW from bringing suit against EQC officials.  While an exception to sovereign immunity exists for suits seeking prospective injunctive relief, the defendants contend that the named officials do not fall within the exception because they do not directly enforce the law.

“Absent allegations that EQC has an enforcement role or is continuously engaging in some activity that violates federal law, Plaintiff has not and cannot establish that the Ex parte Young exception should apply to the EQC Defendants,” the motion reads.

Enforcement authority, the defendants contend, rests with Oregon’s Department of Environmental Quality (DEQ), while EQC’s role is limited to promulgating administrative rules that “guide DEQ in its…administration” of the program.  Although both EQC and DEQ were named in NAW’s original complaint, the association removed the agencies as defendants in an amended complaint filed October 27, 2025.

The defendants also argue that the Eleventh Amendment precludes NAW’s state-law claims from being heard in federal court.

Oregon’s packaging EPR program, which launched July 1, 2025, is the first such program to take effect nationwide.  Many of its obligations are currently fulfilled by a single producer responsibility organization (PRO), Circular Action Alliance (CAA), though DEQ is authorized to approve additional PROs.

Last month, the Small Business Administration’s Office of Advocacy called for the federal government to preempt the program, citing concerns about interference with interstate commerce, the state’s delegation of authority to CAA, and the confidential methodologies used by CAA to calculate producer fees.

Merits Arguments

NAW raises similar concerns in its amended complaint, arguing that the program “produces unreasonable, arbitrary, and crushing burdens, including on wholesalers and distributors who are essential to moving products from manufacturers to Oregon consumers,” in part due to the delegation of  “essential regulatory authority to a private, third-party organization.”  CAA “has been granted wide discretion to apply a confidential methodology for setting fees, to establish other criteria and incentives for certain producers, and to penalize producers of certain materials,” NAW contends.

NAW alleges several constitutional violations.  After contesting the court’s jurisdiction, the defendants’ motion to dismiss addresses each, arguing that all fail to state a plausible claim for relief.

First, the motion challenges NAW’s dormant Commerce Clause claim, asserting that the program does not discriminate against interstate commerce.  “Increased compliance costs, even if borne largely by out-of-state businesses, do not amount to discrimination,” the defendants argue.  Nor, they add, does the program “establish a substantial or an excessive burden on interstate commerce, regardless of whether it is compared to the putative local interests.”

The defendants also contend that the program does not have impermissible extraterritorial effects because it “does not force any producer to make any product or packaging design, sourcing, or distribution decisions.”

The motion next addresses NAW’s unconstitutional conditions claim, which alleged that producers are compelled to surrender “freedom of contract and due process protections” when joining CAA.  In response, the defendants note that the law allows NAW’s members to form their own PRO, arguing that participation in CAA is a matter of choice.

NAW further argues that delegating fee-setting authority to CAA violates its members’ procedural due process rights.  The defendants counter by pointing to statutory safeguards that provide “opportunity for public input and continuing DEQ oversight” of the fees program.  These include DEQ approval of PRO program plans and fee methodologies, as well as annual reporting requirements.

Finally, the motion argues that Oregon has a rational basis for exempting small producers and does not unlawfully discriminate between mid-sized and large producers, rebutting NAW’s equal protection claim.

The case is National Association of Wholesaler-Distributors v. Feldon, 25-cv-1334 (D. Or.), filed July 30, 2025.

First TSCA CBI Claims Will Expire in 2026—Companies Should Prepare Now

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Companies with confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA) should mark their calendars—prompt action may soon be required to maintain their claims.  CBI claims under amended TSCA will begin to expire in the second half of 2016, and submitters must reassert their claims prior to their expiration to prevent the public disclosure of commercially sensitive chemical information.

When Will My CBI Claims Expire?

In 2016, Congress passed the Lautenberg Amendments to TSCA, which overhauled the statute’s CBI provisions.  Under amended TSCA, most CBI claims—including claims for specific chemical identities—expire after ten years.  This means that CBI claims asserted in 2016 will expire in 2026.

Under section 14(e)(1)(B), the ten year countdown starts when a submitter asserts a claim, not when the submitter provides substantiation.  Although substantiation is generally required at the time a claim is submitted, some submitters may have provided substantiation at a later date.  This is especially true of claims that were submitted immediately after the statute was amended.  Submitters should calculate expiration dates based on the date of assertion, and note that claims might expire before the 10-year anniversary of their substantiation.

What Do I Have To Do To Reassert and Re-Substantiate my CBI Claims?

Submitters can extend their CBI claims for subsequent ten-year periods by submitting a request for an extension to EPA.  Section 14(e)(2).  The request for an extension must include substantiation and must be submitted to EPA at least 30 days before the claim is set to expire.  Section 14(e)(2)(B)(i).

Requirements for “maintaining” a claim (i.e., reasserting a claim) are the same as those for asserting a claim initially.  Pursuant to 40 CFR 703.5, submitters must provide:

  • A supporting statement and certification;
  • Substantiation (i.e., answers to specific questions about the claim);
  • A public version of the submission; and
  • A generic name (if the CBI claim is for a specific chemical identity).

Under 40 CFR 703.7(g), submitters will have the option to either submit new substantiation or rely on substantiation that was provided with the initial submission, certifying that the substantiation remains true and correct.

The CBI regulations require that claims be submitted through the agency’s Central Data Exchange (CDX).  40 CFR 703.5(f).  During the 2023 rulemaking that developed those regulations, the agency indicated that it anticipated developing a new CDX reporting form for submitters to reassert expiring claims.  EPA’s CBI FAQ page, last updated in August 2025, continues to signal that an electronic reporting tool is planned.

Will EPA Provide Advance Notice of My CBI Claims’ Expiration?

TSCA section 14(e)(2)(A) requires that EPA provide notice to submitters at least sixty days before their CBI claim expires.  The CBI regulations authorize the agency to provide this notice through CDX.  40 CFR 703.5(h)(2).  EPA does not interpret section 14(e) as requiring individual notice, but stated during the CBI rulemaking that it intends to provide notice via CDX nonetheless.  EPA declined to provide additional individual notice through other means, like certified mail.

EPA’s notification system is imperfect.  Submitters may miss CDX notifications if the contact information associated with CBI claims is outdated.  Companies should therefore review their TSCA submissions to assess whether contact information is current.  Companies may need to contact the CDX Helpdesk for assistance gaining access to submissions made by former employees.  This process may take several weeks if a company needs to create a new CDX account and get that account connected to filings submitted by a former employee.  If the original filing was submitted by an entity that was not part of the company at the time of the submission, additional steps may be required.  Note that EPA stated during the 2023 CBI rulemaking that companies should not need access to the original CDX submission in order to reassert claims.

In addition, the CBI regulations require EPA to publish a list of TSCA submissions with expiring confidentiality claims on its website or other appropriate platform.  40 CFR 703.5(h)(3).  Submissions must be added at least 60 days prior to expiration, along with instructions for reasserting and substantiating expiring claims.  Submitters may want to consider monitoring this webpage as an additional backstop to identify expiring claims.

Are Any CBI Claims Exempt from the Reassertion and Re-Substantiation Requirements?

Pursuant to section 14(e)(1)(A), no action will be necessary to maintain CBI claims that are exempt from substantiation and review according to sections 14(c)(2) and 14(g).  These include claims for specific information describing manufacturing processes, marketing and sales information, information identifying suppliers or customers, and specific production volumes, among others.

This post is for informational purposes only and does not constitute legal advice.

EPA Formalizes “Compliance First” Enforcement Framework

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On December 5, 2025, the acting assistant administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA) issued a “compliance first” directive to the agency’s enforcement staff.  A memo detailing this directive was issued to personnel both at headquarters and in regional EPA offices.  The memo, obtained by POLITICO’s E&E News, signals a paradigm shift in the agency’s enforcement philosophy.

“The primary focus for the Agency in all inspection, investigation, EPA enforcement, state/tribal enforcement coordination, and compliance assistance activities must be on achieving and ensuring timely compliance,” the memo reads.  OECA adds that compliance should be attained in “the most efficient, most economical, and swiftest means possible, while ensuring that our actions align with the clearest, most defensible interpretations of our statutory and regulatory mandates.”

OECA outlines six factors that will underpin the agency’s enforcement philosophy:

  1. Deployment of compliance assistance tools,
  2. State partner coordination,
  3. Open communication,
  4. Clear and well-tailored findings of violation,
  5. Restrained use of injunctive relief, and
  6. Reasoned decision-making.
Key Changes to Enforcement Practice

Several provisions in the memo mark notable departures from previous practice.

First, EPA inspectors and enforcement staff must now immediately elevate concerns raised by regulated entities about how the agency has applied a statute or regulation in enforcement actions at their facilities.  Decisions on how to proceed will be made at the national level, with regional counsel required to consult with the relevant Office of General Counsel (OGC) and OECA offices.

With respect to injunctive relief—court orders to compel or cease specific actions—the directive substantially narrows EPA’s authority.  Approval from the OECA assistant administrator will now be required for injunctive relief that falls outside “clear regulatory or statutory requirements,” which will only “be appropriate in limited, case-specific circumstances.”  The memo rescinds the agency’s earlier policy—issued in 2021—that allowed for more expansive injunctive relief.  Under the 2021 policy, EPA could use tools such as advanced monitoring, third-party auditing and monitoring, electronic reporting, and enhanced public reporting.  These tools are now generally discouraged.

In addition, the directive tightens settlement procedures.  The memo explains that agency personnel must now obtain approval from the OECA assistant administrator prior to initiating negotiation on any proposed settlement that could include mitigation or a stipulated remedy until additional guidance is issued.  Similarly, the memo prohibits the use of supplemental environmental projects (SEPs) in settlements until further guidance is developed.

Finally, in the memo EPA states that it plans to develop consolidated criteria across all media to categorize violations and assign appropriate enforcement responses to improve consistency across programs and regions.  OECA says that existing enforcement response policies, “together with the best reading of each requirement,” will inform the basis of the consolidated criteria.  The memo also notes that EPA “must act swiftly to limit actions from third parties who, through citizen suit litigation, unfairly impact policy through abusive litigation tactics.”

Implications for Industry

OECA’s compliance first framework—particularly its emphasis on achieving timely compliance through efficient and economical means—signals renewed support for industry self-policing.

The memo expressly directs enforcement staff to “promote voluntary compliance through self-reporting and voluntary audits.”  That instruction, coupled with the memo’s focus on open communication, early issue elevation, and restrained use of injunctive relief, suggests an enforcement environment more receptive to self-identified violations that are promptly disclosed and corrected.

For companies that manufacture chemicals or use chemicals to produce consumer, commercial, or industrial products, self-auditing offers an opportunity to establish a clear compliance baseline and move potential violations off of balance sheets.  EPA’s Audit Policy, discussed below, provides substantial protection to entities that systematically discover, disclose, and correct violations.

Given OECA’s new approach, companies facing compliance questions should strongly consider whether self-auditing and voluntary disclosure can help manage enforcement risk while demonstrating good-faith compliance efforts.

* * *

EPA’s long-standing Audit Policy, last revised in 2000, remains the primary mechanism for obtaining credit for self-auditing.  Under the policy, regulated entities that systematically discover, disclose, and correct violations may be eligible for significant enforcement incentives, including:

  • Up to 100% mitigation of gravity-based penalties.
  • No recommendation for criminal prosecution.
  • No routine requests from EPA for the audit report.

More information on EPA’s Audit Policy can be found on EPA’s website.

Third Circuit Affirms Lanham Act Liability for False “Made in USA” Claims

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On December 10, 2025, the Third Circuit affirmed a New Jersey district court’s finding that Albion Engineering Co. violated the Lanham Act by making false and misleading “Made in the USA” claims in connection with certain caulking guns, as well as the entry of a permanent injunction and an award of disgorgement.

Competitor Newborn Bros. Co., Inc. filed suit in 2012, alleging that Albion partially manufactured certain caulking guns overseas while making US-origin claims.  Albion printed statements such as “USA Manufacturer and Designer” and “Made in USA” on some imported products and advertised that all of its products were “designed and manufactured in the USA” and “Made in America.”  Newborn, however, also made potentially problematic US-origin representations in connection with its own imported caulking guns.

After 30 days of trial testimony spanning seven years, the district court held Albion liable for false advertising under the Lanham Act, entered a permanent injunction, and awarded Newborn more than $2 million in disgorgement, reducing the award under the unclean hands doctrine based on Newborn’s own conduct.  Both parties appealed.  The Third Circuit affirmed the district court’s rulings in all respects.

False Advertising and Permanent Injunction

Albion challenged several aspects of the false advertising holding, arguing that Newborn failed to present consumer survey evidence demonstrating deception and lacked evidence that any deception was material.  The Third Circuit rejected these arguments, holding that testimony and expert evidence may establish deception and materiality without a consumer survey.  The court also affirmed the finding that Newborn suffered injury in the form of diverted sales.

Albion additionally challenged the permanent injunction, which ordered Albion to send letters to recent distributors, request returns of mislabeled products, display notice of the litigation, and provide detailed country-of-origin information until it receives Customs and Border Patrol (CBP) guidance.  Even if Albion’s current practices are compliant with the Lanham Act, the district court’s conclusion that old products and marketing materials was sufficient to warrant a permanent injunction, the panel held.

The Third Circuit likewise upheld the district court’s mandate regarding country-of-origin disclosures. Albion had previously sought CBP guidance on an adjacent issue and was informed that the country of origin would not be the United States, but it did not seek a subsequent clarifying ruling.  “On this record, we cannot conclude that the District Court abused its discretion,” the panel stated.

Unclean Hands

Newborn, on the other hand, principally challenged the district court’s application of the unclean hands doctrine, which decreased the disgorgement award.  The lower court focused on Newborn’s use of a “Newborn U.S.A.” trademark on caulking-gun advertisements without reference to its US warehouse facilities to justify its application.  Newborn also used a logo incorporating its name within an outline of the United States and listed US-based offices and warehouses without disclosing that its caulking guns were manufactured overseas.

While these practices may not necessarily have caused consumer confusion or injury, they are sufficiently similar to Albion’s violations and “transgress[ed] equitable standards of conduct,” the court held.  Accordingly, the panel found that the reduction of Newborn’s recovery fell within the district court’s discretion.

The court also rejected Newborn’s challenge to Albion’s expert witness, who testified that repeat purchasers of Albion products would be aware of their overseas origin.  The panel held that this opinion fell within the expertise of the economist, who held a Ph.D.

The case is Newborn Bros. Co., Inc. v. Albion Engineering Co., Nos. 24-1548 & 24-3046 (3rd Cir.), filed Nov. 4, 2024.

EPA Moves to Dismiss Novel TSCA CBI Challenge as Untimely

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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.

Federal Legislation Introduced to Create PFAS Cause of Action

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On December 11, 2025, Senator Kirsten Gillibrand (D-NY) and Representative Madeleine Dean (D-PA-4) introduced the PFAS Accountability Act of 2025 (S.3460/H.R.6626).  The legislation would establish a federal cause of action and allow courts to award medical monitoring for persons exposed to PFAS.

In a press release announcing the bill, Senator Gillibrand stated: “For years, companies have knowingly manufactured toxic, carcinogenic chemicals that have devastated families and communities.  Those companies must be held accountable for their actions.”

Versions of the PFAS Accountability Act have been introduced in every Congress since 2018.  The legislation has never passed either chamber, however.

Cause of Action

If enacted, the PFAS Accountability Act would add a new section to the Toxic Substances Control Act (TSCA) titled “Individuals Exposed to Perfluoroalkyl And Polyfluoroalkyl Substances.”  The amendment would allow individuals who have been “significantly exposed to PFAS,” or have “reasonable grounds” to suspect significant exposure, to bring suit individually or as a class in any district court.

Claims could be brought against any person that:

  1. Engaged in any portion of a manufacturing process that created the PFAS to which the individual was significantly exposed; and
  2. Foresaw, or reasonably should have foreseen, that the creation or use of PFAS would result in human exposure.

The bill establishes rebuttable presumptions of “significant exposure.” An individual would be presumed to have been significantly exposed if:

  • The PFAS at issue was released into one or more areas where the individual would have been exposed for a cumulative period of at least one year; or
  • The individual submits testing results demonstrating the presence of the PFAS in their body.

If plaintiffs do not submit test results, defendants could rebut the presumption of significant exposure by offering test results conducted by an independent testing provider.

Medical Monitoring

The legislation would authorize courts to award medical monitoring for qualifying claimants if:

  1. The individual’s significant PFAS exposure resulted in an increased risk of developing disease;
  2. That increased risk provides a reasonable basis for additional or more frequent medical examinations; and
  3. Those examinations are effective in detecting a disease associated with PFAS exposure.

Where insufficient toxicological data exists to determine whether exposure resulted in an increased risk of disease, courts “may lower the standard for scientific proof” until such data exists.  Courts would also have authority to order studies to assess whether an increased risk of disease occurred.

Definition of PFAS

Notably, the bill defines PFAS as “a perfluoroalkyl or polyfluoroalkyl substance with at least 1 fully fluorinated carbon atom,” which is significantly broader than the definition used by EPA in the TSCA section 8(a)(7) PFAS reporting rule and the 2024 significant new use rule (SNUR) for inactive PFAS.

More information on the PFAS Accountability Act of 2025 can be found here.