Last week, the U.S. Court of Appeals for the District of Columbia rejected all but one of the Environmental Defense Foundation’s (“EDF”) challenges to the U.S. Environmental Protection Agency’s (“EPA”) rulemaking implementing a statutory mandate to update the chemical substances inventory under the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692. See Envtl. Def. Fund. v. U.S. Envtl. Prot. Agency, No. 17-1201, 2019 WL 1867846 (D.C. Cir. Apr. 26, 2019).

In 2016, TSCA was amended to, in part, require EPA to establish a rule to update the TSCA inventory, which is a list of chemicals that are manufactured or processed within the U.S. EPA thereafter published a rule to implement this requirement. See 82 Fed. Reg. 37,520 (Aug. 11, 2017). EDF challenged the rule in several respects, each pertaining to the level of public disclosure required.

To assert a claim for confidentiality under TSCA, a person must include a statement that the person has “a reasonable basis to believe that the information is not readily discoverable through reverse engineering.” See 15 U.S.C. § 2613(c)(1)(B). The person must also “substantiate” that claim. See 15 U.S.C. § 2613(c)(3). EPA had initially included certain questions in the proposed rulemaking that required companies that sought to keep the identity of a particular chemical confidential to substantiate that the chemical identity is not readily discoverable through reverse engineering. Those questions were removed in the final rulemaking. The Court agreed with EDF that EPA’s removal of those questions was arbitrary and capricious because it subverted EPA’s statutory duty to ensure that confidentiality claims are “substantiated.”

The Court upheld the remaining aspects of the rule that were challenged by EDF, as follows:

  • The Court upheld the portion of the rule that allows any manufacturer or processor to maintain an existing confidentiality claim even if that company was not the source of the original claim that caused the chemical to be listed on the confidential portion of the TSCA inventory.
  • The Court disagreed with EDF’s position that EPA’s failure to restate in the rule all of the disclosure procedures mandated by the statute necessarily means that the rule contradicts the statute, and instead found that the rule’s disclosure procedures “complement and elaborate upon some of the statutory requirements without displacing the others.”
  • The Court rejected EDF’s argument that EPA acted unlawfully by failing to develop a unique public identifier for each chemical identity EPA keeps confidential, noting that TSCA did not place a deadline on EPA to establish those unique public identifiers and that EPA is free to publish a separate rule at a later date addressing that issue.
  • The Court upheld EPA’s decision to exclude export-only chemicals from the rule’s notification requirement.