TSCA litigation : The case to watch
Lynn L . Bergeson of Bergeson & Campbell discusses some ongoing legal cases with big implications for chemical regulation in the US
The implementation of the game-changing 2016 Frank R . Lautenberg Chemical Safety for the 21st Century Act , amending the Toxic Substances Control Act ( TSCA ), is now a hotbed of legal dispute . Lawsuits challenging key aspects of the law ’ s implementation are piling up . While all are legally noteworthy , one citizen enforcement case in particular merits attention .
As discussed below , two recent cases have raised novel issues pertinent to the scope of the Environmental Protection Agency ’ s ( EPA ) Significant New Use Rule ( SNUR ) authority under TSCA Section 5 and a more general challenge to the agency ’ s right to pre-empt citizen actions if the government is ‘ diligently prosecuting ’ the act a citizen plaintiff wishes to restrain . The resolution of these cases and both issues will have important implications , making these cases worth watching .
Background
On 19 December 2022 , the Deparrment of Justice ( DOJ ) filed suit in the US District Court for the US Eastern District of Pennsylvania against Inhance Technologies USA to prevent Inhance from generating certain perand polyfluoroalkyl substances ( PFAS ) when fluorinating plastic containers .
Only eight few days later , the Center for Environmental Health ( CEH ) and Public Employees for Environmental Responsibility ( PEER ), both citizen plaintiffs , filed a lawsuit in the US District Court for the District of Columbia ( DC ), also against Inhance , essentially for the same reasons . Why would citizen plaintiffs file suit under TSCA ’ s citizen suit provision if DOJ had already brought an action alleging the same violations of TSCA ? In short , it ’ s complicated .
The Department of Justice has filed suit against Inhance
According to CEH and PEER , testing found PFAS chemicals on the inner and outer surfaces of fluorinated containers , and in the contents of the containers . These , according to the plaintiffs , probably resulted from chemical reactions that occur during Inhance ’ s fluorination process .
The EPA had previously issued a Notice of Violation ( NOV ) to Inhance in March 2022 alleging that its fluorination process produces PFAS compounds in violation of the long-chain PFAS SNUR , which prohibits entities from producing perfluorooctanoic acid ( PFOA ) and other PFAS until the EPA is able to determine under TSCA Section 5 whether the proposed uses might present an unreasonable risk to health .
Late last year , Inhance filed ‘ under protest ’ SNUR notices for the uses in dispute . The EPA ’ s review of these notices is ongoing . CEH and PEER are now seeking a court order restraining the company from continued manufacture of the PFAS and distribution of the fluorinated containers , and directing it to inform recipients of the containers that their activities constitute unlawful processing of the PFAS under the SNUR that must cease until the significant new use notice ( SNUN ) review process has been completed .
The fact that the DOJ had had filed its action in Pennsylvania , alleging substantially similar TSCA violations to those filed days later in CEH and PEER ’ s suit in DC , begs two questions : why did the citizen plaintiffs file suit and is their case barred by TSCA Section 20 ( b )( 1 )( B ), which precludes a legal action if the EPA is ‘ diligently prosecuting a proceeding ’ to issue an order under TSCA Section 16 ?
Inhance has filed a motion to dismiss the citizen suit on the grounds that the plaintiff failed to meet this statutory bar . Additionally , in its amicus brief , the DOJ states that it is diligently prosecuting the case against Inhance and similarly argues that the citizen plaintiffs ’ suit is barred on that basis . Aside from this procedural anomaly , the cases raise fascinating substantive issues testing the EPA ’ s SNUR authority .
40 SPECIALITY CHEMICALS MAGAZINE ESTABLISHED 1981