B&C® Consortia Management Comments Quoted in Inside EPA Article “Court Stays First Known TSCA Test Order Case Since Precedential Ruling”

On July 13, 2026, comments submitted to the U.S. Environmental Protection Agency (EPA) by B&C^® Consortia Management, L.L.C. (BCCM) were featured in an Inside EPA article discussing the “first known litigation over a TSCA test order since the court in 2024 established the standard of evidence EPA must provide for such orders.”

“Based on extensive experience working with testing consortia, it is BCCM’s view that EPA’s estimated burden for responding to a test order is lower than what is typically experienced by test order recipients,” the consortia’s comments state.

The consortia filed their comments on an Information Collection Request (ICR) EPA planned to submit to the White House to renew its paperwork authority continue to receive information from TSCA “Test Orders for the Standardized Testing of . . . [PFAS].” It is unclear if EPA has done so.

The comments repeatedly cite the Vinyl Institute ruling, noting the statutory standard the 2024 ruling sets for future test orders.

“When issuing a test order, EPA must provide substantial evidence in the test order or the public administrative record that the order satisfies the requirements of TSCA Section 4. EPA must additionally demonstrate that its determinations and conclusions are supported by substantial evidence, including EPA’s need for the ordered data. EPA may not rely on conclusory statements or non-public information to satisfy these requirements,” the comments state.

For example, the D.C. Circuit held that EPA must provide substantial evidence that it considered the relative costs of the protocols and the reasonably foreseeable availability of facilities and personnel to conduct the testing in the public record by including such evidence either in the test order itself or an accompanying public record, the comments say.

“While the court vacated the 2022 test order for 1,1,2-TCA, the remaining seven 2022 test orders suffer similar deficiencies,” the comments say, and BCCM outlined a series of examples of problems in responding to TSCA test orders.

[…]

The comments urge EPA to ensure that its test orders propose appropriate and available test methods. As an example, the comments cite test orders on nine high priority chemicals EPA issued in January 2021, all of which requested recipients conduct occupational dermal exposure tests with a hand-wipe protocol. But the protocol EPA included in the test wasn’t validated for that purpose and the “equipment outlined in the protocol was either not compatible with the subject chemicals or not available commercially to enable conduct of the exposure monitoring in accordance with the protocol,” the comments say.

Next, BCCM urges EPA to consider whether the tests it asks recipients to conduct are feasible, noting an example in the 2022 test order EPA issued on TDCE “requiring two definitive sediment-water chironomid toxicity studies using spiked water. After BCCM raised significant concerns with EPA regarding the feasibility of conducting these studies with physicochemical properties like TDCE . . .” EPA permitted the recipients to conduct a comparative trial study which “confirmed arguments BCCM had made to EPA after EPA initially ordered the testing.”

The consortia also urge EPA to consider whether the substances it wishes companies to test are available, again citing the TDCE test order. In that case, EPA sought emissions testing of TDCE from adhesive foam or sealants. BCCM says that EPA required the testing even though the manufacturer was phasing the chemical out of the product; testing was completed on some of last products.

The consortia acknowledge “EPA does have an obligation to evaluate exposures from legacy uses, but only if those legacy uses lead to prospective exposures,” citing EPA’s 2021 draft scope document for its risk evaluation of legacy asbestos.

The firm also presses EPA to consider laboratory capacity and set realistic timelines for testing and seeks upgrades to the agency’s struggling Chemical Data Exchange (CDX) platform through which EPA and companies exchange information about chemicals. Glitches in the system have further delayed meeting the test orders’ deadlines, BCCM argues.

See – https://insideepa.com/tsca-news/court-stays-first-known-tsca-test-order-case-precedential-ruling (subscription required)