Note by Carolyn E. Young
When is “new” just old news? The United States Court of Appeals for the Fifth Circuit's interpretation of “new” leaves the Environmental Protection Agency (EPA) wondering what it can regulate anew. For over forty years, Inhance Technologies, L.L.C. (Inhance) has used the same fluorination process to enhance the chemical resistance of plastic containers. In 2020, the EPA promulgated a Significant New Use Rule for per- and polyfluoroalkyl substances (PFAS), a class of chemicals now known for their environmental persistence and potential health risks. This Significant New Use Rule required that any uses of PFAS not identified as ongoing before the rule's promulgation be regulated as “significant new use[s]” under the Toxic Substances Control Act (TSCA)'s Section 5. As part of the rulemaking process, the EPA identified industries likely to be affected by the regulation to provide notice of anticipated regulatory impacts. At the time, the EPA was unaware that the fluorination process employed by companies such as Inhance unintentionally produced PFAS and therefore did not include the fluorination industry on this list. It was not until 2022 that the EPA discovered that Inhance's fluorination process unintentionally created *914 PFAS. Upon this discovery, the EPA issued a Notice of Violation to Inhance, informing the company that its fluorination process now qualified as a “significant new use” and offered two options: Either change the process to eliminate PFAS or temporarily halt production. Inhance ignored the orders and instead submitted two Significant New Use Notices in December 2022 to seek EPA approval for its existing process.
In December 2023, after considering the Significant New Use Notices, the EPA issued two orders under Sections 5(e) and 5(f) of the TSCA that prohibited Inhance from continuing its fluorination process until further testing assessed the risks associated with PFAS. In response, Inhance petitioned Fifth Circuit for judicial review, arguing that the EPA's orders exceeded its statutory authority under TSCA's Section 5, a provision that explicitly governs new chemical substances or significant new uses. The company argued that its process, in operation for four decades, did not qualify as a “new” use subject to EPA regulation under Section 5. In response, the EPA claimed that a “significant new use” refers to any use not previously known to the agency, asserting that Inhance's failure to disclose its process during the 2020 rulemaking process justified regulating it under Section 5.
In Inhance Technologies, L.L.C. v. EPA, the Fifth Circuit ruled that the EPA could not retroactively classify a forty-year-old manufacturing process as a ““new” use simply because it had only recently discovered its environmental risks. The court's decision limits the EPA's regulatory authority to decide what constitutes a “significant new use” under Section 5 of the TSCA, establishing that preexisting chemical processes can only be subject to regulation under the appropriate procedural safeguards provided by TSCA's Section 6. The Fifth Circuit's decision misinterprets the TSCA by overemphasizing the role of cost considerations under Section 6, contrary to Congress's intent in the 2016 TSCA amendments that prioritize unreasonable risk over economic concerns. Part II provides an overview of the TSCA's statutory *915 framework, focusing on the distinctions between Sections 5 and 6 and the EPA's regulatory history under Section 6. Part III discusses the Fifth Circuit's decision that the EPA exceeded its authority under Section 5 of the TSCA and its clarification that Section 6 is the appropriate mechanism for regulating established chemical uses. Part IV critiques the Fifth Circuit's overemphasis on cost considerations in Section 6, arguing that this misinterpretation undermines Congress's intent in the 2016 amendments. Part V briefly concludes.
About the Author
Carolyn E. Young. J.D. Candidate 2026, Tulane University Law School; B.S. 2023, Washington and Lee University.
Citation
99 Tul. L. Rev. 913