Tom Berger, Herb Estreicher, James Votaw, and David Fischer Quoted in Chemical Watch Article on Implications an EPA Lawsuit Could Have for TSCA

Keller and Heckman attorneys Tom Berger, Herb Estreicher, James Votaw, and David Fischer were quoted in the Chemical Watch article, “What implications could a US EPA lawsuit have for the TSCA programme.” The article discusses a December lawsuit claiming that Inhance Technologies is violating a 2020 TSCA significant new use rule (Snur) by generating long-chain per- and polyfluoroalkyl substances (PFASs) as byproducts when it applies fluorinated barriers to plastic containers. Tom, Herb, James, and David all believe this case represents the first time the U.S. Environmental Protection Agency (EPA) has taken a company to court for a TSCA title I violation. 

Whether the EPA can use a Snur to regulate a use that a company later says was ongoing is one question that may come up for the court.

According to the attorneys, “no court has addressed” this issue before. If it arises in the Inhance lawsuit, “the court will likely provide insight on what a ‘new use’ means and whether a use that has been ongoing for decades can be a new use” subject to Snur restrictions, they said.
A second question that could come up for the court is whether the unintentional generation of a substance subject to a Snur constitutes an activity requiring notification.

The attorneys said as proposed by the EPA in 1980, the Snur regulations would have applied all the same exemptions included in the PMN regulations. But when the EPA finalized the rule in 1984 it did not include them all. 

This detail could be “highly relevant” to the case, the attorneys said. “EPA will need to explain why byproducts with no commercial purpose are exempt from inventory listing and [pre-manufacture notice] PMN review, but not [significant new use notice] Snun requirements,” they commented.

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