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June 7, 2024

EPA Engaging in “Administrative Deliberations” Regarding TSCA Section 5 Order Challenged by Cherokee Concerned Citizens

Lynn L. Bergeson Carla N. Hutton

Cherokee Concerned Citizens watchers will be interested to know that on June 6, 2024, the U.S. Environmental Protection Agency (EPA) filed an unopposed motion in the U.S. Court of Appeals for the District of Columbia Circuit to extend the deadlines in Cherokee Concerned Citizens v. EPA, (No. 23-1096). As reported in our April 17, 2023, blog item, Cherokee Concerned Citizens filed suit in April 2023 seeking review of an Order for a New Chemical Substance under Section 5 of the Toxic Substances Control Act (TSCA) that authorizes Chevron U.S.A. Inc. (Chevron) to manufacture, process, distribute in commerce, use, or dispose of certain new chemical substances. According to EPA’s motion, good cause exists for its filing. EPA states that it “is engaging in further administrative deliberations regarding the order challenged in this petition that may obviate the need for continuance of this litigation.” EPA requests that the court alter the July 10, 2024, deadline for its brief to September 9, 2024.

According to Earthjustice’s April 7, 2023, press release announcing the lawsuit, EPA approved the new chemicals to make fuels “despite finding that the resulting air pollution would pose a cancer risk 250,000 times greater than what the agency typically considers unreasonable.” The press release states that EPA determined that the production of the new chemicals will pose up to a one in four cancer risk, meaning 25 percent of residents living nearby could develop cancer over their lifetime. The press release notes that under TSCA, EPA cannot approve new chemicals with serious health or environmental risks without identifying and implementing ways to minimize the dangers.