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September 19, 2022

Lynn L. Bergeson and Richard E. Engler, Ph.D. Quoted by Bloomberg Law in Article “Lanxess Agrees to Drop Case Over EPA’s Chemical Test Order”

Bergeson & Campbell, P.C.

On September 19, 2022, Bloomberg Law quoted Lynn L. Bergeson, Managing Partner, Bergeson & Campbell, P.C. (B&C®), and Richard E. Engler, Ph.D., Director of Chemistry, B&C, regarding a federal court’s dismissal of Lanxess AG‘s petition asking to challenge an EPA order after the agency clarified that Lanxess and certain other chemical manufacturers wouldn’t be required to test chemicals they formerly made.

Lynn Bergeson, managing partner of Bergeson & Campbell PC, which intervened in the case on behalf of chemical service provider MA Global Resources Inc., said the company was pleased by the agency’s clarification.

“Our client imported a small amount for [research and development], once, years ago,” and certified in 2021 that it would no longer do so, said Richard Engler, director of chemistry at the same law firm.

Yet the company also was subject to the March 2022 test order, he said. “With this dismissal, EPA agreed that our client should not be subject to the second order,” Engler said.

A central issue stems from the language in the 2016 Toxic Substances Control Act amendments, Engler said. The law authorizes the EPA to order tests from “each person who manufactures or intends to manufacture” the chemical, he said.

The statute uses the present tense and refers to future activity, Engler said.

But it’s not clear that the EPA has unlimited authority to issue orders to companies that had, at some point in the past, manufactured, imported, or processed the substance, he said. Nor is it clear what line divides present and past activity. “For example, is the line between ‘currently manufacturing’ and ‘manufactured in the past’ the date of the issue of the order?” Engler said.

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