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TSCA Litigation- Update and SOCMA Involvement

The Environmental Protection Agency (EPA) is defending against four lawsuits relating to Toxic Substances Control Act (TSCA) rules published earlier this year. Three of the lawsuits have been consolidated as they all related to the Risk Evaluation and Prioritization rulemakings. The fourth case is related to the TSCA Inventory Reset Rule.

On December 8, 2017, the United States Court of Appeals for the Fourth Circuit (Richmond, VA) agreed to transfer the consolidated lawsuits against the EPA regarding the TSCA Risk Evaluation and Prioritization rulemakings to the Ninth Circuit (San Francisco, CA). The Ninth Circuit has granted SOCMA’s Motion to Intervene on behalf of EPA. The petitioners’ consolidated opening brief is due January 22, 2018.

The main issue at stake is that environmental groups oppose EPA’s interpretation of new TSCA as allowing EPA to choose which Conditions of Use to consider when evaluating whether a chemical poses unreasonable risk. The law requires that EPA consider “reasonably foreseeable” uses. As such, EPA does not plan to consider various legacy uses – things that are no longer being manufactured but are still in use, like lead-based paint – which environmental groups have also challenged. SOCMA supports EPA’s position and believes the EPA interpretation of the rule is legally sound.

The main issue in the Inventory Reset case is that environmental groups want a higher threshold for claiming Confidential Business Information than what was published in EPA’s Inventory Notification Rule on August 11, 2017. In this case too, SOCMA supports EPA’s legal interpretation. A briefing schedule has not yet been set, but the DC Circuit has granted SOCMA’s Motion to Intervene.
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