Safer Chemicals et al. v. U.S. Environmental Protection Agency (EPA), et al.
Safer Chemicals et al. v. U.S. Environmental Protection Agency (EPA), et al. (U.S. Court of Appeals for the Ninth Circuit, Nov. 14, 2019): The court concluded that under the Toxic Substance Control Act (TSCA), EPA must consider the outdated uses of a chemical (legacy activities) when evaluating the health and environmental risks of chemical substances. Petitioners challenged several aspects of EPA’s new Risk Evaluation Rule (Rule). The TSCA requires EPA to evaluate chemical substances’ “conditions of use” in its risk evaluation. The court held the Rule’s categorical exclusion of “legacy activities” (like the use of asbestos in insulation) from the definition of “conditions of use” violated the Act. Under the TSCA, “conditions of use” include chemical substances, like asbestos, that are no longer manufactured for a particular use, but will be used or disposed of in the future. The court, however, rejected Petitioners’ additional arguments finding, in part, that: (1) the exclusion of “legacy disposals” (disposals that have already occurred) did not violate TSCA; and (2) Petitioners’ challenges to the process by which EPA intends to conduct risk determinations were non-justiciable. Read the decision here.
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