Oral Arguments in Case Challenging TSCA Test Order

On December 1, 2023, a panel of the DC Circuit Court heard oral arguments in Vinyl Institute v EPA.  The case marks the first legal challenge of EPA’s authority to administer Toxic Substances Control Act (TSCA) section 4 test orders since Congress granted EPA the authority in the 2016 Lautenberg Amendments.

The case revolves around an avian reproduction study mandated by EPA’s March 2022 test order for 1,1,2-Trichloroethane, a solvent currently undergoing TSCA risk evaluation.  The Vinyl Institute alleges that EPA failed to adequately demonstrate why the study is necessary, while EPA argues that the order met statutory requirements and is supported by substantial evidence.  Also at issue in the case is a TSCA section 19(b) motion filed by the petitioner to make additional submissions to the test order’s administrative record.

Oral arguments focused on the level of detail required in the test order’s statement of need.  The Vinyl Institute’s attorney argued that the statement of need was composed of conclusory statements that did not sufficiently explain EPA’s reasoning.  For example, he said that it is not possible to identify one of the studies cited by EPA in its explanation.  This received pushback from one judge, who said that he seemed to be asking for a level of specificity that may not be required by law.  EPA’s attorney argued that the test order is not statutorily required to be an “exhaustive decisional document,” and said that EPA is not obligated to explain why it believes certain existing studies were inadequate to fill the data need addressed by the order.  In response, one judge implied that the attorneys’ interpretations of the standard for test orders fall on the extreme ends of a spectrum—on one end, EPA would be required to list every piece of information in examined in its decision-making process, and on the other, EPA could simply say “take our word for it”—and said that the standard is probably located between them.

The attorneys also offered competing interpretations of Congress’s intent when it granted EPA the ability to administer test orders.  EPA’s attorney argued that the reason Congress gave EPA the authority to administer test orders was to make it easier for EPA to obtain necessary information, and that requiring high levels of detail in test orders would burden EPA and undermine that intent.  By contrast, the Vinyl Institute’s attorney said that Congress put in place “numerous guardrails to ensure that [EPA’s] test order authority is not abused.”

Because the avian reproduction study is currently in progress, one judge remarked that a ruling in the petitioner’s favor would need to be delivered before summer 2024 to avoid mootness.  Neither attorney had time to address the section 19(b) motion.

A previous Verdant Law blog post on the case, written prior to merits briefing, can be found here.