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US appeals court kills ban on plastic containers contaminated with PFAS

116 points by mdp2021 3y ago

Solvency 3y ago
Corruption, end to end.
- yieldcrv 3y ago
  > The judges did not deny the containers’ health risks, but said the EPA could not regulate the buckets under the statute it used. I’m curious your thought process on how you made that conclusion. I’m starting to feel like I should just accept that the legal community matches how I view the world, and it’s a more relevant and powerful way to view the world.
  - Solvency 3y ago
    It's sophmoric to go "well, akshually, the law says..." when we're talking about corrupt bureaucrats with a history of enabling, covering up, and abetting in rampant environmental disasters (eg: https://en.wikipedia.org/wiki/Santa_Susana_Field_Laboratory https://en.wikipedia.org/wiki/Santa_Susana_Field_Laboratory). Cool, you're at stage 2 of viewing the world, which is really just trying to use faux rationality to cognitively disassociate from the nonsense evil going on in the world. Stage 3 is letting decades of this nonsense erode this "academic" view and saying enough is enough. I don't care what bureaucratic legalese these assholes are guarding their motives with, it's all 100% down to money. Money is flowing here between corporations and government, and that's the ultimate incentive behind these decisions.
    - yieldcrv 3y ago
      the EPA bringing reaching the same conclusion the way the court pointed out is completely fine by me what I can't get behind is your version where the authority you like can do anything you like in any way. you're assuming this is an example of "corrupt bureaucrats with a history of enabling, covering up, and abetting in rampant environmental disasters" and this is copypasta for any topic where something was curbed.
unglaublich 3y ago
"The fifth circuit judges wrote that the EPA would have to regulate the containers under Section 6 of the Toxic Substances Control Act (TSCA), which the judges and Inhance claim would require the EPA to take into account the economic impact on Inhance. The company has said a ban on its fluorination process would put it out of business." With that mindset we would still have Asbestos factories around. The economic situation of polluters should be completely outweighed by the health and environmental concerns of the population.
- Dalewyn 3y ago
  That actually is exactly what the court told the EPA to do. >TSCA section 6(b)(4) requires EPA to establish, by rule, a process to conduct risk evaluations. Specifically, EPA is directed to use this process to “determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by the Administrator, under the conditions of use.” https://www.federalregister.gov/d/2023-23428/p-52 https://www.federalregister.gov/d/2023-23428/p-52 Also, this was even linked right below the paragraph you cited.
  - shadowfacts 3y ago
    The article says, "However, Peer noted Section 6 states health risks should be weighed “without consideration of costs or other non-risk factors”." Peer is not the court, it's a non-profit involved in the litigation. You can read the opinion, and the court doesn't tell the EPA to use section 6, just that they can't use section 5: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pdf https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...
    - Dalewyn 3y ago
      >the court doesn't tell the EPA to use section 6, Yes they do: >Second, the EPA may regulate chemical substances under Section 6. See 15 U.S.C. § 2605. The mandate of Section 6 is broader than Section 5, in that Section 6 applies to all chemical substances, not just new chemical substances or significant new uses of a chemical substance. See id. § 2605(a). However, the rulemaking process under Section 6 is also more rigorous than Section 5: It requires the EPA to conduct a cost-benefit analysis, weighing the negative effects of the chemical substance against the benefits of the substance and the economic consequences of prohibiting or limiting the substance. See id. § 2605(c)(2)(A)–(C). No such analysis is required under Section 5. >We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed, abiding the APA’s procedural guardrails, under TSCA’s Section 6 by conducting inter alia the appropriate cost-benefit analysis required for ongoing uses—a proposition even Inhance concedes. The EPA is just not allowed to skirt the framework set by Congress by arbitrarily deeming Inhance’s decades-old fluorination process a “significant new use.” See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 105–06 (2015).
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Dalewyn 3y ago
Note that the court told the EPA to use the correct law, not that the basis for their actions was wrong: >the conservative fifth circuit court of appeals court overturned the ban. The judges did not deny the containers’ health risks, but said the EPA could not regulate the buckets under the statute it used. >The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Inhance has produced the containers for decades and argued that its process is not new, so it is not subject to the regulations. The EPA argued that it only became aware that Inhance’s process created PFOA in 2020, so it could be regulated as a new use, but the court disagreed. >The fifth circuit judges wrote that the EPA would have to regulate the containers under Section 6 of the Toxic Substances Control Act (TSCA), which the judges and Inhance claim would require the EPA to take into account the economic impact on Inhance. I agree with this ruling, laws should be enforced as-written by Executive Branch departments and agencies such as the EPA. Rewriting laws is the job of the Legislative Branch.
- czig 3y ago
  I’m not sure if I agree with this. If the EPA didn’t become aware of PFOA being used due to their negligence, then I would say the fault is on them. However, if they didn’t find out about it due to subversion on behalf of Inhance to hide them using PFOAs, then I would disagree with the ruling. I wish the article provided more information about the specific arguments
  - Dalewyn 3y ago
    >PFOA being used I think you're misunderstanding something. Inhance used (and uses) their fluorination process "for decades", but the fact it generated PFOA only became known in 2020 (edit: article is wrong; was cited by EPA in 2022). Because the law states "new" use, the court threw out the EPA's "we found PFOA coming out of this in 2020 (edit: 2022, see above edit), this is new use" argument as hogwash. I agree with this ruling, because I presume this is all English.
    - galleywest200 3y ago
      Wouldn't this incentivize companies to just hide emissions like this, then cry "it is not new" when eventually found out?
yareal 3y ago
Watching the empire crumble in real time is an extremely challenging place to be. Seeing our government say, "yes, there's obvious risk to human health, and it's a totally preventable risk, but we hate the epa more than we care about good outcomes" is tragic. Combined with the criminal attitude from the company manufacturing these things. "We know this is harmful, but we've been doing it for over a decade so we can't stop now."
- deleted 3y ago
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- vundercind 3y ago
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  - yareal 3y ago
    We haven't had a good president in my lifetime. (40+ years) My original post isn't a condemnation of a party, it's a condemnation of both parties working together to line their pockets while the ship sinks.
    - vundercind 3y ago
      Oh, total agreement. Even Obama was pretty damn bad (gonna end those pointless, expensive wars that’re still killing people? No? Just… gonna keep doing that for some reason? Huh, weird choice, but ok. Could we at least close Guantanamo like you said you would? Also no? Ok well I guess at least we helped destabilize the Maghreb for no reason, great, love that, oh and look you’ve intervened in Syria juuuuust enough to keep it going but not enough to end it the way we’d prefer, causing untold misery, how very hopeful!) Carter’s the last one who might have been good, but was dealt a shit hand and then had dirty tricks at America and Americans’ expense played against him by his reelection opponent, so, hard to say if he’d have turned it around and become effective. Wasn’t effective with the years he did have, though.
      - seanmcdirmid 3y ago
ikekkdcjkfke 3y ago
[flagged]
jt2190 3y ago
> The EPA may not contort the plain language of [the Toxic Substances Control Act (TSCA)]’s Section 5 to deem a forty-year-old ongoing manufacturing process a “significant new use” subject to the accelerated regulatory process provided by that part of the statute. In other contexts, “new” may have nuanced meanings, but its meaning in the statute before us is plain, and plainly prohibits the EPA’s December 2023 orders aimed at Inhance. > We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed, abiding the APA’s procedural guardrails, under TSCA’s Section 6 by conducting inter alia the appropriate cost-benefit analysis required for ongoing uses—a proposition even Inhance concedes. The EPA is just not allowed to skirt the framework set by Congress by arbitrarily deeming Inhance’s decades-old fluorination process a “significant new use.” See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 105–06 (2015). Ruling of the U.S. 5th Circuit: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pdf https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd... “EPA overstepped its authority in PFAS order: Appeals court“: https://coastalreview.org/2024/03/court-halts-epa-orders-for-company-to-stop-pfas-byproduct/ https://coastalreview.org/2024/03/court-halts-epa-orders-for...
calgarymicro 3y ago
> The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Inhance has produced the containers for decades and argued that its process is not new, so it is not subject to the regulations. The EPA argued that it only became aware that Inhance’s process created PFOA in 2020, so it could be regulated as a new use, but the court disagreed. So basically, any company that begins using a process that produces large quantities of hazardous chemicals is now incentivized to hide it until that process is no longer 'new' so that substantial new use rules won't apply to them? I'm sure there's no way this could go wrong.
- thaumasiotes 3y ago
  Well, at that point they'd be in direct violation of the requirement you just quoted: > The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Which seems unlikely to help them.
  - calgarymicro 3y ago
    That requirement only exists once the EPA has created the rule. What the 5th Circuit has just said is that if you've been using a hazardous process for a while by the time the EPA creates such a rule, even if the EPA and public did not know about it, then SNURs can't be applied. In this case, the EPA tried to regulate PFAS in 2020, but since Inhance had been using them since the 80s (without anyone knowing), the rule was struck down. So any company that begins using a hazardous process is incentivized to keep that secret for long enough that the EPA can no longer create an SNUR regulating it.
xyst 3y ago
This is wild. The argument to vacate the EPA order hinges primarily on dictionary definition of “new”. Pulling the same shit as SCOTUS did to undo Roe v Wade. Since the fluorination process is a “decades old” process. Therefore it doesn’t apply under the “significant new use regulation” of PFAS. Therefore, company did not need to submit application (even though PFAS is clearly generated or used…) I am not a lawyer, so could be completely wrong here https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pdf https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...
- dmvdoug 3y ago
  You are correct. And they specifically ignored what the statute actually says in order to get there. It's super clear from the statutory text that "significant new use" is just "a use" the EPA has determined meets certain listed criteria. In other words, it's not "a new use" the EPA determines is significant. Nor is it "a significant use" that the EPA determines is new. It's just a use of a chemical that the Administrator determines meets certain criteria, and the statute just happens to call that a "significant new use." I mean, it really couldn't be clearer from the statutory text and structure. Which makes the 5th Circuit utterly ignoring it even more egregious. Statutory interpretation?! We don't need no stinking statutory interpretation. We have dictionaries!
  - thaumasiotes 3y ago
    > In other words, it's not "a new use" the EPA determines is significant. Nor is it "a significant use" that the EPA determines is new. It's just a use of a chemical that the Administrator determines meets certain criteria, and the statute just happens to call that a "significant new use." Well, you didn't mention the criteria. The terminology might be clearer after looking at them: > §2604(a)(2) A determination by the Administrator that a use of a chemical substance is a significant new use with respect to which notification is required under paragraph (1) shall be made by a rule promulgated after a consideration of all relevant factors, including— > (A) the projected volume of manufacturing and processing of a chemical substance, > (B) the extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance, > (C) the extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance, and > (D) the reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance. Factor (A) asks whether the use is significant. (And, at the very least, strongly implies that the use must be new - the inquiry is into "projected volume", not realized volume.) Factors (B) and (C) ask whether it's new - if you're considering a process that has been going on for decades, it cannot change the type or form, or increase the duration or magnitude, of exposure to the output of that process, because people (and the environment, etc...) already have the type and level of exposure that is the result of that process. [They also ask whether it's significant, by considering relative levels of exposure ("change in magnitude or duration") as opposed to absolute levels of manufacturing.] This tends to imply that an insignificant new use could grow into a significant old use over time (as manufacturing volume ramps up), and that in such a case, the EPA should have the option to deem that growth a "significant new use" (relying on factors (A) and (C)), but I don't get the impression that that was the argument here?
efitz 3y ago
[flagged]
- sethherr 3y ago
  From your ML summary: > The suit references forthcoming research indicating that PFAS (polyfluoroalkyl substances) may leach from HDPE plastic containers into everyday products. From the article: > A peer-reviewed study in 2011 found Inhance’s containers leached the toxic compounds into their contents. This is why people trusting ML rewrites is sad. Obviously this seems less cut and dried if you hallucinate new “facts” The final paragraph is even more error riddled. Check the actual article content: > Since 2020, Inhance appears to have repeatedly lied to regulators and customers about whether PFAS leached from its containers, and for several years resisted EPA’s demands to submit its process for review. If you think reading this rewrite is a good use of time, you’re wrong. Please don’t post lies that a computer told you because you like them more than journalism.
Aachen 3y ago
For anyone else who always wondered what this circuit thing is and what happened to versions one through four: appeal courts in the USA seem to be numbered one through eleven, each having a few states they serve, and the group of states is called a "circuit". The word apparently has a meaning of a geographic region, so that's where that comes from (I only heard the word used for electric circuits, besides seeing this Nth court name a few times now). The judges in higher courts (like these, it seems) are chosen by the currently elected president whenever seats in the court become vacant, if I remember correctly. What's still unclear to me is why the article consistently calls it "the conservative fifth circuit court" as though that is part of its name (or as though there is another nonconservative one), whereas Wikipedia uses no such phrasing that I can find. Is that an artifact of the news medium being of "the other side" and wanting to emphasise that most of the judges were chosen by a party they don't like? Or are most judges party members, or how is this label decided? And isn't the whole point of being a judge that you're impartial, are they subtly alleging the court is partial to whatever laws are made by one of the two major parties or something? Edit: I'm not sure what this reads like to y'all but it was meant as a genuine question with what I've already figured out for anyone else who doesn't know this (probably most international visitors, I figured)
- dmvdoug 3y ago
  First, the name "circuit" comes from the old practice of judges "riding circuit." Their circuit was the geographic territory assigned to them. They'd be responsible for hearing appeals in that limited geographic region, and they'd literally ride around the area (on an established schedule) hearing appeals from cases that came up in different parts of their assigned area. It was a way of providing easier access to appellate courts than requiring everyone come to one centralized place in the region. Second, about the structure of the courts: in the federal judiciary, there are federal district courts (roughly, where trials happen), federal circuit courts, and the Supreme Court. There federal circuit courts are courts of appeal that sit one level above the district courts. There are 13 federal circuits. There are the First through the Eleventh Circuits, as you note. There's also the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit), as well as the U.S. Court of Appeals for the Federal Circuit (the Federal Circuit). That last one is extremely unhelpfully named, since they're all "federal circuits." The Federal Circuit hears certain types of cases specially designated for it to hear (for instance, patent appeals and appeals from two lower federal courts established for specialty jurisdiction). The numbered circuits and the D.C. Circuit are geography-based. If you're wondering why D.C. needs its own circuit, consider the metric fuckton of administrative rules and regulations made by the federal government. That mainly happens in D.C. It's more complicated than that, of course, because Congress will write into certain statutes that the D.C. Circuit has jurisdiction over appeals of challenges to those statutes. Other times, litigants may choose to sue an agency in one of the other regions. Third, the 5th Circuit is unquestionably and unarguably conservatively aligned, just as the 9th Circuit used to be unquestionably and unarguably liberally/progressively aligned. The label is decided by looking at both outcomes and reasons given for those outcomes. Pick a hot political topic. Pick a legal case involving that topic in some way. It's extremely predictable how the 5th Circuit will rule. None of this is controversial. The controversy would come from taking the next step: if you say, "Well, they're mostly right." That makes you a conservative, and that enlists you in political controversy. Because as a factual matter, they have a historically fairly high reversal rate (i.e., among the 5th Circuit cases the Supreme Court grants cert. on, the 5th Circuit gets reversed ~80+% of the time), so they're not right in the sense that the Supreme Court agrees and thus their rulings are usually the law of the land.)
dmvdoug 3y ago
This ruling is both crazy and par for the course for the 5th Circuit. I live in the 11th Circuit, which is notably nutty, but the 5th Circuit proudly outshines us in the firmament of madness. Here's why the decision is crazy: The panel essentially relies on ordinary meaning analysis of "significant new use" to decide that this (the company fluorinating its products) can't be a significant new use because it has been in business for 40+ years and that surely is not "new." The court goes that route because it says "significant new use" is not defined in the statute, 15 U.S.C. § 2604 [0]. Let's open our hymnals just to make sure that's true. § 2604(a)(1)(A)(i) is a prohibition on manufacturing a "new chemical substance" unless certain procedures are followed allowing the EPA to make a determination about it. Ok, this is definitely not a case about a new chemical substance. The statute talks about "significant new use" in the next subparagraph, § 2604(a)(1)(A)(ii): no person may "manufacture or process any chemical substance for a use which the Administrator has determined, in accordance with paragraph (2), is a significant new use." Reread that subparagraph. It is up to the EPA Administrator to determine whether "a use" is a "significant new use." Well, how is s/he supposed to do that? "[I]n accordance with paragraph (2)," i.e., by following 15 U.S.C. § 2604(a)(2). In other words, whether some "use" is a "significant new use" is determined within the statutory boundaries erected in 2604(a)(2). "Significant new use" just means "a use meeting criteria listed under 2604(a)(2)." There is no other meaning for the term. It's a statutory term of art. You could call it a BongoBoomBah. If the Administrator determines that manufacturing or processing a chemical for a use is a BongoBoomBah, then no person may manufacture or process that chemical for that use. How does the Administrator decide a use is a BongoBoomBah? Look at 2604(a)(2): the Administrator promulgates a rule "after a consideration of all relevant factors, including" four specifically identified factors. If the Administrator promulgates a rule that the use is a BongoBoomBah after following the statutory guidelines, the use just is a BongoBoomBah, end of story. But the 5th Circuit doesn't bother with any of that. They look at the definitions section, see "significant new use" isn't specifically defined, then throw up their hands and say, well, new means new, so if it's not a new use, it can't be a significant new use, ergo case dismissed. No parsing of the actual statutory text or structure. It's gotcha jurisprudence. But it's the 5th Circuit, so... par for the course. [0] https://www.law.cornell.edu/uscode/text/15/2604 https://www.law.cornell.edu/uscode/text/15/2604
- 3y ago
deleted 3y ago
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rayiner 3y ago
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aaomidi 3y ago
One of the reasons for Medicare for all is that these sorts of bans would have a direct financial benefit for health coverage. So would better cities, better biking infrastructure, etc etc. Our inability to regulate toxic materials entering our bodies is going to be the downfall of this country.

116 points by mdp2021 3y ago

Solvency 3y ago

Corruption, end to end.

yieldcrv 3y ago
> The judges did not deny the containers’ health risks, but said the EPA could not regulate the buckets under the statute it used. I’m curious your thought process on how you made that conclusion. I’m starting to feel like I should just accept that the legal community matches how I view the world, and it’s a more relevant and powerful way to view the world.
- Solvency 3y ago
  It's sophmoric to go "well, akshually, the law says..." when we're talking about corrupt bureaucrats with a history of enabling, covering up, and abetting in rampant environmental disasters (eg: https://en.wikipedia.org/wiki/Santa_Susana_Field_Laboratory https://en.wikipedia.org/wiki/Santa_Susana_Field_Laboratory). Cool, you're at stage 2 of viewing the world, which is really just trying to use faux rationality to cognitively disassociate from the nonsense evil going on in the world. Stage 3 is letting decades of this nonsense erode this "academic" view and saying enough is enough. I don't care what bureaucratic legalese these assholes are guarding their motives with, it's all 100% down to money. Money is flowing here between corporations and government, and that's the ultimate incentive behind these decisions.
  - yieldcrv 3y ago
    the EPA bringing reaching the same conclusion the way the court pointed out is completely fine by me what I can't get behind is your version where the authority you like can do anything you like in any way. you're assuming this is an example of "corrupt bureaucrats with a history of enabling, covering up, and abetting in rampant environmental disasters" and this is copypasta for any topic where something was curbed.

unglaublich 3y ago

"The fifth circuit judges wrote that the EPA would have to regulate the containers under Section 6 of the Toxic Substances Control Act (TSCA), which the judges and Inhance claim would require the EPA to take into account the economic impact on Inhance. The company has said a ban on its fluorination process would put it out of business." With that mindset we would still have Asbestos factories around. The economic situation of polluters should be completely outweighed by the health and environmental concerns of the population.

Dalewyn 3y ago
That actually is exactly what the court told the EPA to do. >TSCA section 6(b)(4) requires EPA to establish, by rule, a process to conduct risk evaluations. Specifically, EPA is directed to use this process to “determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by the Administrator, under the conditions of use.” https://www.federalregister.gov/d/2023-23428/p-52 https://www.federalregister.gov/d/2023-23428/p-52 Also, this was even linked right below the paragraph you cited.
- shadowfacts 3y ago
  The article says, "However, Peer noted Section 6 states health risks should be weighed “without consideration of costs or other non-risk factors”." Peer is not the court, it's a non-profit involved in the litigation. You can read the opinion, and the court doesn't tell the EPA to use section 6, just that they can't use section 5: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pdf https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...
  - Dalewyn 3y ago
    >the court doesn't tell the EPA to use section 6, Yes they do: >Second, the EPA may regulate chemical substances under Section 6. See 15 U.S.C. § 2605. The mandate of Section 6 is broader than Section 5, in that Section 6 applies to all chemical substances, not just new chemical substances or significant new uses of a chemical substance. See id. § 2605(a). However, the rulemaking process under Section 6 is also more rigorous than Section 5: It requires the EPA to conduct a cost-benefit analysis, weighing the negative effects of the chemical substance against the benefits of the substance and the economic consequences of prohibiting or limiting the substance. See id. § 2605(c)(2)(A)–(C). No such analysis is required under Section 5. >We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed, abiding the APA’s procedural guardrails, under TSCA’s Section 6 by conducting inter alia the appropriate cost-benefit analysis required for ongoing uses—a proposition even Inhance concedes. The EPA is just not allowed to skirt the framework set by Congress by arbitrarily deeming Inhance’s decades-old fluorination process a “significant new use.” See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 105–06 (2015).

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Dalewyn 3y ago

Note that the court told the EPA to use the correct law, not that the basis for their actions was wrong: >the conservative fifth circuit court of appeals court overturned the ban. The judges did not deny the containers’ health risks, but said the EPA could not regulate the buckets under the statute it used. >The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Inhance has produced the containers for decades and argued that its process is not new, so it is not subject to the regulations. The EPA argued that it only became aware that Inhance’s process created PFOA in 2020, so it could be regulated as a new use, but the court disagreed. >The fifth circuit judges wrote that the EPA would have to regulate the containers under Section 6 of the Toxic Substances Control Act (TSCA), which the judges and Inhance claim would require the EPA to take into account the economic impact on Inhance. I agree with this ruling, laws should be enforced as-written by Executive Branch departments and agencies such as the EPA. Rewriting laws is the job of the Legislative Branch.

czig 3y ago
I’m not sure if I agree with this. If the EPA didn’t become aware of PFOA being used due to their negligence, then I would say the fault is on them. However, if they didn’t find out about it due to subversion on behalf of Inhance to hide them using PFOAs, then I would disagree with the ruling. I wish the article provided more information about the specific arguments
- Dalewyn 3y ago
  >PFOA being used I think you're misunderstanding something. Inhance used (and uses) their fluorination process "for decades", but the fact it generated PFOA only became known in 2020 (edit: article is wrong; was cited by EPA in 2022). Because the law states "new" use, the court threw out the EPA's "we found PFOA coming out of this in 2020 (edit: 2022, see above edit), this is new use" argument as hogwash. I agree with this ruling, because I presume this is all English.
  - galleywest200 3y ago
    Wouldn't this incentivize companies to just hide emissions like this, then cry "it is not new" when eventually found out?

yareal 3y ago

Watching the empire crumble in real time is an extremely challenging place to be. Seeing our government say, "yes, there's obvious risk to human health, and it's a totally preventable risk, but we hate the epa more than we care about good outcomes" is tragic. Combined with the criminal attitude from the company manufacturing these things. "We know this is harmful, but we've been doing it for over a decade so we can't stop now."

deleted 3y ago
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vundercind 3y ago
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- yareal 3y ago
  We haven't had a good president in my lifetime. (40+ years) My original post isn't a condemnation of a party, it's a condemnation of both parties working together to line their pockets while the ship sinks.
  - vundercind 3y ago
    Oh, total agreement. Even Obama was pretty damn bad (gonna end those pointless, expensive wars that’re still killing people? No? Just… gonna keep doing that for some reason? Huh, weird choice, but ok. Could we at least close Guantanamo like you said you would? Also no? Ok well I guess at least we helped destabilize the Maghreb for no reason, great, love that, oh and look you’ve intervened in Syria juuuuust enough to keep it going but not enough to end it the way we’d prefer, causing untold misery, how very hopeful!) Carter’s the last one who might have been good, but was dealt a shit hand and then had dirty tricks at America and Americans’ expense played against him by his reelection opponent, so, hard to say if he’d have turned it around and become effective. Wasn’t effective with the years he did have, though.
    - seanmcdirmid 3y ago

ikekkdcjkfke 3y ago

[flagged]

jt2190 3y ago

> The EPA may not contort the plain language of [the Toxic Substances Control Act (TSCA)]’s Section 5 to deem a forty-year-old ongoing manufacturing process a “significant new use” subject to the accelerated regulatory process provided by that part of the statute. In other contexts, “new” may have nuanced meanings, but its meaning in the statute before us is plain, and plainly prohibits the EPA’s December 2023 orders aimed at Inhance. > We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed, abiding the APA’s procedural guardrails, under TSCA’s Section 6 by conducting inter alia the appropriate cost-benefit analysis required for ongoing uses—a proposition even Inhance concedes. The EPA is just not allowed to skirt the framework set by Congress by arbitrarily deeming Inhance’s decades-old fluorination process a “significant new use.” See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 105–06 (2015). Ruling of the U.S. 5th Circuit: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pdf https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd... “EPA overstepped its authority in PFAS order: Appeals court“: https://coastalreview.org/2024/03/court-halts-epa-orders-for-company-to-stop-pfas-byproduct/ https://coastalreview.org/2024/03/court-halts-epa-orders-for...

calgarymicro 3y ago

> The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Inhance has produced the containers for decades and argued that its process is not new, so it is not subject to the regulations. The EPA argued that it only became aware that Inhance’s process created PFOA in 2020, so it could be regulated as a new use, but the court disagreed. So basically, any company that begins using a process that produces large quantities of hazardous chemicals is now incentivized to hide it until that process is no longer 'new' so that substantial new use rules won't apply to them? I'm sure there's no way this could go wrong.

thaumasiotes 3y ago
Well, at that point they'd be in direct violation of the requirement you just quoted: > The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Which seems unlikely to help them.
- calgarymicro 3y ago
  That requirement only exists once the EPA has created the rule. What the 5th Circuit has just said is that if you've been using a hazardous process for a while by the time the EPA creates such a rule, even if the EPA and public did not know about it, then SNURs can't be applied. In this case, the EPA tried to regulate PFAS in 2020, but since Inhance had been using them since the 80s (without anyone knowing), the rule was struck down. So any company that begins using a hazardous process is incentivized to keep that secret for long enough that the EPA can no longer create an SNUR regulating it.

xyst 3y ago

This is wild. The argument to vacate the EPA order hinges primarily on dictionary definition of “new”. Pulling the same shit as SCOTUS did to undo Roe v Wade. Since the fluorination process is a “decades old” process. Therefore it doesn’t apply under the “significant new use regulation” of PFAS. Therefore, company did not need to submit application (even though PFAS is clearly generated or used…) I am not a lawyer, so could be completely wrong here https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pdf https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...

dmvdoug 3y ago
You are correct. And they specifically ignored what the statute actually says in order to get there. It's super clear from the statutory text that "significant new use" is just "a use" the EPA has determined meets certain listed criteria. In other words, it's not "a new use" the EPA determines is significant. Nor is it "a significant use" that the EPA determines is new. It's just a use of a chemical that the Administrator determines meets certain criteria, and the statute just happens to call that a "significant new use." I mean, it really couldn't be clearer from the statutory text and structure. Which makes the 5th Circuit utterly ignoring it even more egregious. Statutory interpretation?! We don't need no stinking statutory interpretation. We have dictionaries!
- thaumasiotes 3y ago
  > In other words, it's not "a new use" the EPA determines is significant. Nor is it "a significant use" that the EPA determines is new. It's just a use of a chemical that the Administrator determines meets certain criteria, and the statute just happens to call that a "significant new use." Well, you didn't mention the criteria. The terminology might be clearer after looking at them: > §2604(a)(2) A determination by the Administrator that a use of a chemical substance is a significant new use with respect to which notification is required under paragraph (1) shall be made by a rule promulgated after a consideration of all relevant factors, including— > (A) the projected volume of manufacturing and processing of a chemical substance, > (B) the extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance, > (C) the extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance, and > (D) the reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance. Factor (A) asks whether the use is significant. (And, at the very least, strongly implies that the use must be new - the inquiry is into "projected volume", not realized volume.) Factors (B) and (C) ask whether it's new - if you're considering a process that has been going on for decades, it cannot change the type or form, or increase the duration or magnitude, of exposure to the output of that process, because people (and the environment, etc...) already have the type and level of exposure that is the result of that process. [They also ask whether it's significant, by considering relative levels of exposure ("change in magnitude or duration") as opposed to absolute levels of manufacturing.] This tends to imply that an insignificant new use could grow into a significant old use over time (as manufacturing volume ramps up), and that in such a case, the EPA should have the option to deem that growth a "significant new use" (relying on factors (A) and (C)), but I don't get the impression that that was the argument here?

efitz 3y ago

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sethherr 3y ago
From your ML summary: > The suit references forthcoming research indicating that PFAS (polyfluoroalkyl substances) may leach from HDPE plastic containers into everyday products. From the article: > A peer-reviewed study in 2011 found Inhance’s containers leached the toxic compounds into their contents. This is why people trusting ML rewrites is sad. Obviously this seems less cut and dried if you hallucinate new “facts” The final paragraph is even more error riddled. Check the actual article content: > Since 2020, Inhance appears to have repeatedly lied to regulators and customers about whether PFAS leached from its containers, and for several years resisted EPA’s demands to submit its process for review. If you think reading this rewrite is a good use of time, you’re wrong. Please don’t post lies that a computer told you because you like them more than journalism.

Aachen 3y ago

For anyone else who always wondered what this circuit thing is and what happened to versions one through four: appeal courts in the USA seem to be numbered one through eleven, each having a few states they serve, and the group of states is called a "circuit". The word apparently has a meaning of a geographic region, so that's where that comes from (I only heard the word used for electric circuits, besides seeing this Nth court name a few times now). The judges in higher courts (like these, it seems) are chosen by the currently elected president whenever seats in the court become vacant, if I remember correctly. What's still unclear to me is why the article consistently calls it "the conservative fifth circuit court" as though that is part of its name (or as though there is another nonconservative one), whereas Wikipedia uses no such phrasing that I can find. Is that an artifact of the news medium being of "the other side" and wanting to emphasise that most of the judges were chosen by a party they don't like? Or are most judges party members, or how is this label decided? And isn't the whole point of being a judge that you're impartial, are they subtly alleging the court is partial to whatever laws are made by one of the two major parties or something? Edit: I'm not sure what this reads like to y'all but it was meant as a genuine question with what I've already figured out for anyone else who doesn't know this (probably most international visitors, I figured)

dmvdoug 3y ago
First, the name "circuit" comes from the old practice of judges "riding circuit." Their circuit was the geographic territory assigned to them. They'd be responsible for hearing appeals in that limited geographic region, and they'd literally ride around the area (on an established schedule) hearing appeals from cases that came up in different parts of their assigned area. It was a way of providing easier access to appellate courts than requiring everyone come to one centralized place in the region. Second, about the structure of the courts: in the federal judiciary, there are federal district courts (roughly, where trials happen), federal circuit courts, and the Supreme Court. There federal circuit courts are courts of appeal that sit one level above the district courts. There are 13 federal circuits. There are the First through the Eleventh Circuits, as you note. There's also the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit), as well as the U.S. Court of Appeals for the Federal Circuit (the Federal Circuit). That last one is extremely unhelpfully named, since they're all "federal circuits." The Federal Circuit hears certain types of cases specially designated for it to hear (for instance, patent appeals and appeals from two lower federal courts established for specialty jurisdiction). The numbered circuits and the D.C. Circuit are geography-based. If you're wondering why D.C. needs its own circuit, consider the metric fuckton of administrative rules and regulations made by the federal government. That mainly happens in D.C. It's more complicated than that, of course, because Congress will write into certain statutes that the D.C. Circuit has jurisdiction over appeals of challenges to those statutes. Other times, litigants may choose to sue an agency in one of the other regions. Third, the 5th Circuit is unquestionably and unarguably conservatively aligned, just as the 9th Circuit used to be unquestionably and unarguably liberally/progressively aligned. The label is decided by looking at both outcomes and reasons given for those outcomes. Pick a hot political topic. Pick a legal case involving that topic in some way. It's extremely predictable how the 5th Circuit will rule. None of this is controversial. The controversy would come from taking the next step: if you say, "Well, they're mostly right." That makes you a conservative, and that enlists you in political controversy. Because as a factual matter, they have a historically fairly high reversal rate (i.e., among the 5th Circuit cases the Supreme Court grants cert. on, the 5th Circuit gets reversed ~80+% of the time), so they're not right in the sense that the Supreme Court agrees and thus their rulings are usually the law of the land.)

dmvdoug 3y ago

This ruling is both crazy and par for the course for the 5th Circuit. I live in the 11th Circuit, which is notably nutty, but the 5th Circuit proudly outshines us in the firmament of madness. Here's why the decision is crazy: The panel essentially relies on ordinary meaning analysis of "significant new use" to decide that this (the company fluorinating its products) can't be a significant new use because it has been in business for 40+ years and that surely is not "new." The court goes that route because it says "significant new use" is not defined in the statute, 15 U.S.C. § 2604 [0]. Let's open our hymnals just to make sure that's true. § 2604(a)(1)(A)(i) is a prohibition on manufacturing a "new chemical substance" unless certain procedures are followed allowing the EPA to make a determination about it. Ok, this is definitely not a case about a new chemical substance. The statute talks about "significant new use" in the next subparagraph, § 2604(a)(1)(A)(ii): no person may "manufacture or process any chemical substance for a use which the Administrator has determined, in accordance with paragraph (2), is a significant new use." Reread that subparagraph. It is up to the EPA Administrator to determine whether "a use" is a "significant new use." Well, how is s/he supposed to do that? "[I]n accordance with paragraph (2)," i.e., by following 15 U.S.C. § 2604(a)(2). In other words, whether some "use" is a "significant new use" is determined within the statutory boundaries erected in 2604(a)(2). "Significant new use" just means "a use meeting criteria listed under 2604(a)(2)." There is no other meaning for the term. It's a statutory term of art. You could call it a BongoBoomBah. If the Administrator determines that manufacturing or processing a chemical for a use is a BongoBoomBah, then no person may manufacture or process that chemical for that use. How does the Administrator decide a use is a BongoBoomBah? Look at 2604(a)(2): the Administrator promulgates a rule "after a consideration of all relevant factors, including" four specifically identified factors. If the Administrator promulgates a rule that the use is a BongoBoomBah after following the statutory guidelines, the use just is a BongoBoomBah, end of story. But the 5th Circuit doesn't bother with any of that. They look at the definitions section, see "significant new use" isn't specifically defined, then throw up their hands and say, well, new means new, so if it's not a new use, it can't be a significant new use, ergo case dismissed. No parsing of the actual statutory text or structure. It's gotcha jurisprudence. But it's the 5th Circuit, so... par for the course. [0] https://www.law.cornell.edu/uscode/text/15/2604 https://www.law.cornell.edu/uscode/text/15/2604

3y ago

deleted 3y ago

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rayiner 3y ago

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aaomidi 3y ago

One of the reasons for Medicare for all is that these sorts of bans would have a direct financial benefit for health coverage. So would better cities, better biking infrastructure, etc etc. Our inability to regulate toxic materials entering our bodies is going to be the downfall of this country.