Fourth Circuit Affirms EPA’s Approach to PFAS Testing Under the TSCA

Pursuant to the Toxic Substances Control Act (TSCA), several North Carolina–based citizens groups petitioned the EPA in 2020 to initiate testing of 54 individual PFAS. The EPA responded by agreeing to test seven of the PFAS and to potentially test nine more. The groups viewed this as a denial of their petition and, in 2021, sought judicial review pursuant to a TSCA provision. A North Carolina district court dismissed the groups’ claims for lack of jurisdiction, and the groups appealed. The appeal was resolved when the Fourth Circuit affirmed the district court’s dismissal. The Fourth Circuit held that the EPA’s agreement to test (and potentially test) a subgroup of PFAS constituted a “grant” of the groups’ petition and therefore did not provide the groups with the right to judicial review under the TSCA.

June 10, 2024 | Center for Environmental Health v. EPA, No. 23-1476 (4th Cir.).