Congress granted EPA new test order authority through the 2016 Lautenberg Amendments to the Toxic Substances Control Act (TSCA). In May 2022, EPA received its first legal challenge to this new authority from the Vinyl Institute. The Vinyl Institute is a coalition of seven companies which manufacture a solvent, 1,1,2-trichloroethane, that EPA listed as a priority chemical in December 2019 and that is currently undergoing risk evaluation. The Vinyl Institute is seeking judicial review of a test order for 1,1,2-trichloroethane, for an avian reproduction test. Specifically, the petition to the DC Circuit Court argues that EPA has not adequately explained the need for the data. 1,1,2-trichloroethane is used as a solvent and an intermediate in the production of 1,1-dichloroethane. During the risk prioritization process, the Agency determined that it had insufficient data on the substance to understand if it has the potential to harm wildlife and issued the test order.
The Vinyl Institute stated in their petition that the Test Rule is arbitrary, capricious, and an abuse of discretion. It alleges that EPA failed to:
- Adequately explain why the avian reproduction test is necessary,
- Consider all available information and data for the substance,
- Cite reliable and representative information and data in support of the Test Order,
- Adequately justify the need for the test without first requiring screening level testing, and
- Consider the relative costs of the Test protocols, along with availability of facilities and personnel to perform the testing.
As of this date, the parties have filed motions regarding whether additional submission may be made to the record.