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May 5, 2023

Lynn L. Bergeson, “TSCA litigation: The case to watch,” Speciality Chemicals Magazine, May/June 2023.

Bergeson & Campbell, P.C.

The implementation of the game-changing 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act, amending the Toxic Substances Control Act (TSCA), is now a hotbed of legal dispute. Lawsuits challenging key aspects of the law’s implementation are piling up. While all are legally noteworthy, one citizen enforcement case in particular merits attention. As discussed below, two recent cases have raised novel issues pertinent to the scope of the U.S. Environmental Protection Agency’s (EPA) Significant New Use Rule (SNUR) authority under TSCA Section 5 and a more general challenge to the agency’s right to pre-empt citizen actions if the government is ‘diligently prosecuting’ the act a citizen plaintiff wishes to restrain. The resolution of these cases and both issues will have important implications, making these cases worth watching.