Lynn L. Bergeson Quoted by Bloomberg Law in Article “Three Lawsuits Aim to Shape EPA’s Use of Chemical Test Orders”

On July 22, 2022, Bloomberg Law quoted Lynn L. Bergeson, President, The Acta Group (Acta^®), regarding three lawsuits that challenge the US Environmental Protection Agency’s (EPA) authority to order chemical manufacturers to generate information on their products.

“The Lanxess and Vinyl Institute cases are, to me, a predictable result of a chaotic rollout of EPA Section 4 Test Order efforts,” said Lynn L. Bergeson, managing partner with Bergeson & Campbell PC, which specializes in chemical regulations implemented by multiple agencies.

TSCA attorneys cited a critical difference between the initial, Trump-era test orders and the additional ones the Biden administration required. Before the agency issued the new tests, it didn’t discuss practical problems that could have been worked through. For example, certain tests that require a chemical to be dispersed in a liquid solution can’t be done if the chemical is insoluble, they said.

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“EPA’s lack of resources to respond to concerns about the adequacy of existing data, coupled with the disconnect we are seeing between the requested data and the protocols to develop them, and EPA’s reluctance to engage in substantive discussions” has made litigation the only effective way to challenge the agency, Bergeson said.

Litigation also can get the EPA to the negotiating table in time for companies to meet the aggressive deadlines by which its orders compel them to generate the data, she said.

Legal questions that TSCA’s new authority raises include: What are the triggers for ordering testing, and what must the agency do to justify using an order, she said. Reasonable people also can disagree on the specific tests and methodologies the agency requires, she said.

The third case involving six North Carolina community groups that demand the EPA issue test orders partly fits into the pattern of litigants probing the extent of and interpretations of EPA’s authority under the Lautenberg Chemical Safety Act, which amended TSCA in 2016, said Bergeson and Duvall.

The case, however, involves a different section of the law that allows citizens to petition the agency for regulations and other actions.

The statute’s citizens petition section offers a potentially significant tactical advantage, Bergeson said. If the EPA rejects a petition seeking chemical test orders, the amended law allows the petitioner to seek a de novo proceeding. When courts hear a case de novo, they decide the issues without referencing an agency’s previous conclusion.

That “tactically is a preferable standard of review” than parties get when they directly challenge an EPA order, Bergeson said. For direct challenges, courts use a standard of “substantial evidence in the record taken as a whole,” she said.

See – https://news.bloomberglaw.com/environment-and-energy/three-lawsuits-aim-to-shape-epas-use-of-chemical-test-orders (subscription required)