ELR Citation: 54 ELR 20046
No(s). 23-60620 (5th Cir. Mar 21, 2024)

The Fifth Circuit vacated two orders EPA issued under TSCA that prohibited a plastics company from manufacturing or processing long-chain perfluoroalkyls (PFAS) during its fluorination process. In March 2022, EPA charged that the company's fluorination process was subject to a recently promulgated significant new use rule (SNUR) regarding PFAS and that the company had violated §5 of TSCA because it did not properly notify regulators of the PFAS created during its fluorination process. But neither the company nor EPA knew the fluorination process created PFAS until March 2022, roughly two years after the final SNUR was promulgated. The company argued EPA exceeded its authority by issuing the orders under §5 because the company's 40-year-old fluorination process was not a "significant new use." The court found that the company's process was not "'new' in any pertinent sense of the word," and that EPA's attempt to expand the reach of the SNUR did not pass muster. It held if the Agency wants to regulate the company's existing process, it must do so pursuant to §6 with the appropriate analysis required for ongoing uses.