5 ms·

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

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?
- dmvdoug 3y ago
  > Factor (A) asks whether the use is significant. You're making the mistake of thinking "significant" here has some independent semantic meaning that must be read into the text. First, it doesn't; it's a descriptive label of the kinds of a "new use" that, if the Administrator determines fits the four criteria, is subject to statutory requirements. Second, A says nothing about significance. It says the Administrator must take into account the projected volumes involved. As for the rest, I think what's tripping everyone up is that "use" isn't just any old use out in the world. The Code of Federal Regulations defines in great and painful detail what kinds of uses are subject to regulation: see 40 CFR Part 721, subpart B (https://www.law.cornell.edu/cfr/text/40/part-721/subpart-B https://www.law.cornell.edu/cfr/text/40/part-721/subpart-B). Manufacturers have to submit a notice of the uses they are putting the chemicals to. That gets reviewed by EPA. If EPA approves, that use (or the corresponding part in 40 CFR 720) is added to the chemical's listing in subpart E (see https://www.law.cornell.edu/cfr/text/40/part-721/subpart-E https://www.law.cornell.edu/cfr/text/40/part-721/subpart-E). But if EPA finds out that a chemical is being used in practice in a way that matches subpart B, but isn't listed in subpart E because no one sent the required notifications, they can take various actions to force compliance (under various penalties). When the manufacturer complies and submits the appropriate notifications, the use gets added to the chemical listing in subpart E.
  - thaumasiotes 3y ago
    > You're making the mistake of thinking "significant" here has some independent semantic meaning that must be read into the text. Well, I explicitly said the opposite about "new"... is there any part of my comment that makes you think I had a different opinion about "significant"? Did you read more than those 8 words? > Second, A says nothing about significance. It says the Administrator must take into account the projected volumes involved. The only way for these two sentences to be compatible with each other is if you don't know what "significant" means. How do you imagine projected volumes would be taken into account?

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?

dmvdoug 3y ago
> Factor (A) asks whether the use is significant. You're making the mistake of thinking "significant" here has some independent semantic meaning that must be read into the text. First, it doesn't; it's a descriptive label of the kinds of a "new use" that, if the Administrator determines fits the four criteria, is subject to statutory requirements. Second, A says nothing about significance. It says the Administrator must take into account the projected volumes involved. As for the rest, I think what's tripping everyone up is that "use" isn't just any old use out in the world. The Code of Federal Regulations defines in great and painful detail what kinds of uses are subject to regulation: see 40 CFR Part 721, subpart B (https://www.law.cornell.edu/cfr/text/40/part-721/subpart-B https://www.law.cornell.edu/cfr/text/40/part-721/subpart-B). Manufacturers have to submit a notice of the uses they are putting the chemicals to. That gets reviewed by EPA. If EPA approves, that use (or the corresponding part in 40 CFR 720) is added to the chemical's listing in subpart E (see https://www.law.cornell.edu/cfr/text/40/part-721/subpart-E https://www.law.cornell.edu/cfr/text/40/part-721/subpart-E). But if EPA finds out that a chemical is being used in practice in a way that matches subpart B, but isn't listed in subpart E because no one sent the required notifications, they can take various actions to force compliance (under various penalties). When the manufacturer complies and submits the appropriate notifications, the use gets added to the chemical listing in subpart E.
- thaumasiotes 3y ago
  > You're making the mistake of thinking "significant" here has some independent semantic meaning that must be read into the text. Well, I explicitly said the opposite about "new"... is there any part of my comment that makes you think I had a different opinion about "significant"? Did you read more than those 8 words? > Second, A says nothing about significance. It says the Administrator must take into account the projected volumes involved. The only way for these two sentences to be compatible with each other is if you don't know what "significant" means. How do you imagine projected volumes would be taken into account?