US court vacates EPA's bird testing requirement for chemical companies
Adds comment from Vinyl Institute in paragraphs 7-9
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 EPA in a statement said it was evaluating the decision.
Ned Monroe, the president and CEO of the Vinyl Institute, in a statement welcomed the court's decision "to stop these unnecessary tests on Bobwhite quail birds and extinguish this requirement."
"Moving forward, we hope EPA will proactively engage with manufacturers early in their processes to ensure the collection of appropriate and accurate data," Monroe said.
The EPA in March 2022 had relied on its authority under the 2016 amendments to direct Formosa Plastics1301.TW, WestlakeWLK.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
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