US court vacates EPA's bird testing requirement for chemical companies (updated)
05/07/2024 23:03
(Adds comment from environmental lawyer in paragraphs 13-14)
By Nate Raymond
July 5 (Reuters) - A federal appeals court on Friday
vacated an order from the U.S. Environmental Protection Agency
requiring seven chemical manufacturers and processors to perform
new tests to determine whether a petrochemical solvent is toxic
to birds.
A three-judge panel of the U.S. Court of Appeals for the
District of Columbia Circuit sided with the industry trade group
Vinyl Institute in finding the EPA had failed to provide
substantial evidence for why it needed the new tests.
The case marked the first time the D.C. Circuit has
addressed under what circumstances it should set aside a test
order issued by the EPA pursuant to 2016 amendments to the Toxic
Substances Control Act.
Those amendments gave the EPA authority to require new
testing, instead of only relying on existing data to determine
toxicity. The law said an order requiring new testing has to be
supported by "substantial evidence in the record taken as a
whole."
That record, though, does not include non-public
information, wrote U.S. Circuit Judge Karen LeCraft Henderson,
who faulted the EPA for relying in court on data and studies
that it provided Vinyl Institute only after it sued to justify
the order.
Such non-public information was not part of the record,
Henderson wrote for the panel. She said the EPA had "failed to
provide substantial evidence of how the reasonably available
information informed the decision to require new avian testing."
The court sent the matter back to the EPA so it could
satisfy its burden to provide support for the tests.
The Vinyl Institute had no immediate comment.
The EPA in March 2022 had relied on its authority under the
2016 amendments to direct Formosa Plastics 1301.TW ,
Westlake WLK.N , Occidental OXY.N and other Vinyl Institute
members to test the chronic toxicity of 1,1,2-trichloroethane.
That chemical is used in plastics and petrochemical
manufacturing. EPA reporting data indicates more than 100
million pounds of the chemical were produced or imported into
the U.S. in most years between 1986 and 2015.
The EPA in ordering the tests said it lacked data on its
toxicity to earthworms and birds and that available information
would not close that data gap.
Vinyl Institute sued in 2022 to challenge the bird testing
requirement, arguing the EPA had failed to explain why existing
data was not sufficient before ordering the time-consuming,
expensive tests.
Samantha Liskow, a lawyer with the Environmental Defense
Fund who filed a friend-of-the-court brief supporting the EPA's
order, in an email stressed that the D.C. Circuit's ruling did
not call into doubt the sufficiency of EPA's analysis or the
need for testing.
As a result, Liskow said the EPA simply needed to add to
the public record information it already had. She said her group
"fully expects that a future challenge by industry to this
well-supported test order will be denied."
The case is Vinyl Institute Inc. V. EPA, U.S. Court of
Appeals for the D.C. Circuit, case No. 22-1089.
For the Vinyl Institute: Eric Gotting of Keller and Heckman
For the EPA: Laura Brown of the U.S. Department of Justice
Read more:
Chemical industry urges U.S. appeals court to curtail EPA
testing authority