NGOs Challenge EPA Approval of Two New Chemicals for Use in the Manufacture of Semiconductors

On August 14, 2026, Earthjustice announced that two non-governmental organizations (NGO) filed suit in the U.S. Court of Appeals for the Ninth Circuit challenging the U.S. Environmental Protection Agency’s (EPA) approval of two new chemicals for use in the manufacturing of semiconductors. CHIPS Communities United and Sierra Club seek review of two Consent Orders issued under Section 5 of the Toxic Substances Control Act (TSCA) authorizing the manufacture, processing, distribution in commerce, use, and disposal of the new chemical substances identified as premanufacture notice (PMN) numbers P-26-0045 and P-26-0029. According to Earthjustice, EPA “approved the chemicals for immediate use despite identifying the potential for serious health risks, including cancer, neurological harm, and even sudden death.” Earthjustice states that “EPA admits that it does not know the full extent of those risks, claiming that it lacked the information needed to calculate them.”

According to the Consent Orders appended to the petitions for review, the signatory Companies will refrain from manufacturing the PMN substances beyond the time limits specified in the Testing section of the Consent Order unless the Company or the Semiconductor Photoacid Generator (PAG) Consortium (Consortium) submits to EPA the results of certain testing (i.e., final report and underlying data). The Consent Orders state that the time limits may be extended upon request with written approval from EPA. The Consortium “is a finite group of chemical manufacturers (including importers) that supply [PAG] substances for use in certain applications in semiconductor manufacturing operations, and those entities that acquire and use those substances in semiconductor manufacturing processes.”

The Consent Orders note that “[t]he ‘PAG Category,’ for purposes of the TSCA New Chemicals program, are salts that consist of a cation designed to interact with ultraviolet (UV) light or heat, thus generating a super acid or subtly modifying pH to act as a ‘quencher’ to assist in the development of photoresists, and an anion which may be present to increase stability of the salt or for other performance issues.” According to the Consent Orders, “[s]tructural features in the anions may include but not be limited to small perfluorinated groups (i.e., four carbons or less), halogen substituents, bridged hydrocarbon ring structures, carbonyls, carbonates, sulfonyls, sulfones, amines, ethers, acetals, and/or esters. Excluded from the category are phosphonium and ammonium cations, inorganic or metal-containing anions, and long-chain perfluorinated anions (i.e., those longer than 4 perfluorinated carbons).”

Commentary

The challenged PMNs are just two of a larger group of PAG substances that have been reviewed and approved by EPA under this framework. EPA’s work on a PAG Category to streamline new chemical reviews for the semiconductor industry dates back to at least 2018. Together with the Semiconductor PAG Consortium, EPA identified five PAG substances as being representative of PAGs used in advanced semiconductor manufacturing. Submitters of PMNs for new PAGs must submit detailed chemical property calculations demonstrating alignment with the representative PAGs. EPA also developed standardized risk management and testing terms that apply to PAG substances. This approach avoids the need for EPA to re-review continually similar PAG PMNs from scratch, provides PAG manufacturers and users with clear expectations on what data and exposure controls EPA will require, and fosters continued innovation in the globally essential semiconductor manufacturing industry.

While the Petition for Review does not include the factual and legal arguments supporting the challenge, the companion press release from Earthjustice suggests concerns regarding the chemicals’ inclusion under the broad umbrella of per- and polyfluoroalkyl substances (PFAS) and possibly persistent, bioaccumulative, and toxic (PBT) characteristics. The potential for industrial wastewater containing these chemicals to contaminate local groundwater and drinking water is likely to be a key issue. Of note, the Consent Orders do not appear to restrict releases to water. It is not clear from the record if EPA expected water releases or found that water releases were unlikely. Earthjustice also notes concern for the surging demand for artificial intelligence data centers, that necessarily ramps up the need for more chip-producing factories that use these chemicals; the Orders, however, have an enforceable production volume limit.

The unique properties that make PAGs so successful in photolithography applications make them even more difficult — or impossible — to replace with non-PFAS alternatives. Industry has long warned that such a transition is many years away, if achievable.

One possible outcome of this litigation is that EPA will have to document better its bases for its PMN decisions and the associated Consent Orders. If the court finds that the facts in the PMNs and EPA’s reviews are such that EPA inappropriately allowed the PAGs to be commercialized, that might set a significant precedent for future review of new PAGs, creating fresh complications for onshoring semiconductor production at a time when the demand and global competition for chip technology has perhaps never been higher. Further constraints of the semiconductor supply chain can also have significant effects down the supply chain; readers may remember how chip shortages during the pandemic lead to shortages of products such as appliances and new cars.

The outcome of this litigation could also have implications more broadly for future review of new PFAS under the TSCA program, and/or the extent of risk management required under TSCA Section 5 following a determination that a chemical “may present” an unreasonable risk of injury to health or the environment. Bergeson & Campbell, P.C. will continue to watch closely as this case progresses.