Signage is seen at the entrance of the United States Court of Appeals for the District of Columbia Circuit in Washington, D.C., U.S., August 30, 2020. REUTERS\/Andrew Kelly Acquire Licensing Rights <\/p>\n
Dec 1 (Reuters) - A chemical industry trade group on Friday urged a U.S. appeals court to vacate an order from the U.S. Environmental Protection Agency requiring its members to perform new tests to determine whether a petrochemical solvent is toxic to birds, saying the agency failed to explain why the costly analysis was necessary. <\/p>\n
Vinyl Institute attorney Eric Gotting told a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that the EPA had to better explain why existing data was not sufficient before ordering such \"time consuming and expensive\" tests. <\/p>\n
The group has said in court documents that, without a ruling in its favor, the chemical industry could face a \"parade of unsubstantiated\" testing orders in other reviews in the next several years that could cost tens of millions of dollars. <\/p>\n
Circuit Judge Florence Pan, an appointee of Democratic President Joe Biden, asked Gotting what good it would do for the court to tell the EPA to add a more thorough explanation to its testing order since the agency already appeared to have detailed its consideration of testing related to similar chemicals elsewhere in the administrative record. <\/p>\n
Isnt that just a formality? Pan asked. <\/p>\n
Gotting pushed back, saying the EPA had not supported the need for the testing in the broader record, either. <\/p>\n
Amendments to the federal Toxic Substances Control Act (TSCA) passed by Congress in 2016 for the first time gave the EPA authority to require new testing, instead of only relying on existing data to determine toxicity. <\/p>\n
Gotting said the 2016 revisions require the EPA to thoroughly explain why it needs new testing, but the agency did not do so. <\/p>\n
I dont think the information is there yet, Gotting said. He added: Even in the administrative record, they still have to point this court to something where they did some analysis. <\/p>\n
U.S. Department of Justice attorney Laura Brown said Friday the law was changed to strengthen and streamline reviews and argued the Vinyl Institute is seeking to impose unnecessary and burdensome procedures on the EPA that would undermine the intent of the revisions. <\/p>\n
Were at the point where, is EPAs burden to explain everything they did in a test order and the purpose of the test order? The reason Congress has given EPA this new authority is to make the process simpler for EPA to get the information, Brown said. <\/p>\n
But Circuit Judge Justin Walker, an appointee of Republican former President Donald Trump, said he is not sure the EPA can just ask that their word be taken at face value that testing is needed when issuing orders, even if the agency doesnt need to list every piece of evidence it has already looked at. <\/p>\n
I think thats a broad spectrum and I think probably the standard is in between there, he said. <\/p>\n
The EPA had told Formosa Plastics Corp, Westlake Chemical Corp, Occidental Chemical Corp and other Vinyl Institute members in 2022 that it had some data indicating that 1,1,2-trichloroethane, which is used in plastics and petrochemical manufacturing, may be toxic to birds, but said it needed further testing to confirm. <\/p>\n
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. <\/p>\n
The panel also included Circuit Judge Karen Henderson, an appointee of former Republican President George H.W. Bush, who largely remained quiet during the arguments. <\/p>\n
The case is Vinyl Institute Inc. V. EPA, U.S. Court of Appeals for the D.C. Circuit, case No. 22-1089. <\/p>\n
For the Vinyl Institute: Eric Gotting, Peter de la Cruz and Gregory Clark of Keller and Heckman <\/p>\n
For the EPA: Laura Brown of the U.S. Department of Justice <\/p>\n
Reporting by Clark Mindock <\/p>\n
Our Standards: The Thomson Reuters Trust Principles. <\/p>\n
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