TSCA Citizen Suits – Not the Same as It Ever Was

Citizen suits under U.S. environmental laws have historically been viewed as providing a vehicle for action against the U.S. Environmental Protection Agency (EPA or Agency), often compelling the Agency to take an action that a plaintiff believes is statutorily required. However, the regulated community should recognize that citizen suit provisions appearing in a number of environmental statutes authorize actions against any person, and can result in court-ordered penalties, attorney’s fees, and governmental enforcement actions.

For example, the Toxic Substances Control Act (TSCA) contains citizen suit provisions that can be used against private individuals and companies [1]. These provisions are being used with increasing frequency by non-governmental organizations (NGO) in a variety of contexts and in several recent actions. Companies, therefore, would be well-advised to be aware of TSCA’s citizen suit provisions and take all necessary and proper actions to mitigate their impacts.

TSCA
TSCA section 20(a) provides that:

- Any person may commence a civil action …

1. against any person (including (A) the United States, and (B) any other governmental instrumentality or agency … who is alleged to be in violation of [most TSCA rules and orders] to restrain such violation, or
2. against the Administrator to compel the Administrator to perform any act or duty under this chapter which is not discretionary.

A subparagraph (a)(1) action may be brought in U.S. district court for the district in which the alleged violation has occurred or the defendant resides, or the location of the defendant’s principal place of business. A subparagraph (a)(2) may be brought in U.S. district court of D.C. (DDC), or U.S. district court for judicial district where plaintiff is domiciled.

To bring an action under section 20(a)(1) to “restrain” a violation, plaintiff must provide notice to the EPA Administrator and alleged violator at least 60 days in advance in a “60-day letter.” Similarly, an action under section 20(a)(2) to “compel” EPA to take an action in most cases cannot be brought until 60 days after plaintiff has given notice to Administrator of the alleged failure to act.

If EPA is not a party to such an action, it may intervene as a matter of right. In issuing a final order, a court is permitted to award costs of suit and reasonable fees for attorneys and expert witnesses if determined to be appropriate. A reviewing court can do the same. Section 20(a) was materially unchanged by the 2016 Lautenberg Chemical Safety Act (LCSA), which otherwise drastically amended TSCA.

Section 20(a)(1) has been used several times over the past several years. For example, the Center for Environmental Health (CEH) has used §20(a)(1) against a number of companies by searching publicly available commercial databases to obtain chemical import records and then by comparing those records against the companies’ TSCA section 8(a) Chemical Data Reporting (CDR) reports to ascertain whether non-reporting appeared to have occurred [2]. The CEH suits were typically focused on high-volume “toxic” chemicals. CEH sent 60-day letters, and, if no response was received, filed complaints. None of these cases were litigated; settlements were reached. We are also seeing increasing activity by CEH in connection with TSCA section 6 risk management rules, violations of which can result in substantial monetary penalties.

Commencement of a citizen action can effectively create a war on two fronts. One adverse party is, of course, the plaintiff NGO. The other is EPA, which can commence an enforcement action (e.g., issue a subpoena or conduct an inspection) if potential or actual non-compliance is brought to its attention. These cases are also frequently covered by the trade press. CEH also typically issues a press release each time it settles one of these cases.

Section 20 has also been used by CEH/Public Employees for Environmental Responsibility (PEER), which, in a widely publicized matter, alleged that EPA failed to perform a non-discretionary duty under TSCA section 4(f) to initiate action under TSCA to prevent/reduce risks from PFOA allegedly formed when fluorinating plastic containers. This followed the 5th Circuit decision in Inhance Technologies L.L.C. v. EPA.

TSCA section 20(a)(2) has also been used to seek to compel EPA to:

• Disclose TSCA section 5 premanufacture notice (PMN)-related information in the interest of “transparency” (Environmental Defense Fund v. EPA, No. 17-1201 (D.C. Cir. 2019))
• Finalize a ban on methylene chloride (Labor Council for Latin American Advancement v. EPA (No. 1:19-CV-01538) (S.D.N.Y. 2019))
• Address the use and disposal of “legacy” section 6(b) asbestos risk evaluation (Asbestos Disease Awareness Organization (ADAO) et al. v. Regan, (No 3:21-cv-03716-SK) (N.D. Cal. 2021))
• Complete 22 overdue section 6(b) risk evaluations (Community In-Power and Development Ass’n et al. v. EPA (No. 1:23-cv-02715) (D.D.C. 2023))

TSCA section 20(a)(1) actions will certainly continue, particularly as TSCA CDR submission information continues to be publicly released in four-year intervals. Of note, the most recent, 2024 CDR data, was just released on April 20, 2026 [3]. Notably with respect to CDR, TSCA itself contains no statute of limitations, but in the 1994 decision in 3M Company (Minnesota Mining and Manufacturing) v. Browner, the U.S. Court of Appeals for the D.C. Circuit held that 28 U.S.C. § 2462, the five-year statute of limitations generally applicable to federal civil penalties, applies to administrative penalty proceedings under TSCA [4]. Thus, one often sees an uptick in these types of actions just before five years have elapsed from the time the past cycle of CDR reports were due [5].

While such actions will continue, they necessarily will be limited to situations in which TSCA non-compliance (or at least potential non-compliance) can plausibly be discovered by an entity other than EPA. Accordingly, CDR was an obvious choice for NGOs, as both CDR data (from EPA) and import data (from commercial databases) are publicly accessible. In contrast, the manufacture or import of a substance not on the TSCA Inventory, for example, typically would be more difficult to discover for a private entity, as would, for example, violations of TSCA section 12(b) export notification requirements (although some export data is tracked by the U.S. Department of Commerce).

Another provision of TSCA allowing for citizens’ petitions is section 21. TSCA section 21 provides that any person may petition EPA to initiate a proceeding for the issuance, amendment, or repeal of a rule or order under sections 4, 5, 6, or 8 [6].EPA is required to respond to the petition within 90 days by either granting the petitioner’s request and commencing a rulemaking action or by publishing the Agency’s reasons for denying the petition in the Federal Register [7]. EPA’s denial of a Section 21 petition or failure to respond within 90 days of filing are final agency actions subject to U.S. District Court review.  

A TSCA section 21 petition filed by the Food & Water Watch (FWW) and other NGOs in 2016 and subsequent litigation stand to impact the breadth and scope of TSCA citizens’ petitions. By way of background, in November 2016, FWW and other groups filed a section 21 petition with EPA, arguing that the addition of fluoride to drinking water presents unreasonable risk under TSCA section 6 and requesting the Agency initiate a risk management rulemaking to prohibit the fluorination of drinking water [8]. The Agency denied the petition and NGO-petitioners challenged EPA’s denial in the U.S. District Court for the Northern District of California (N.D. Cal.) [9].

In September 2024, and following a lengthy legal battle, Judge Chen of the N.D. Cal. authored an extensive opinion finding that the fluorination of drinking water presents unreasonable risk of reduced IQ in children and directed EPA to initiate a rulemaking under TSCA section 6(a) to address the unreasonable risk [10]. EPA appealed the N.D. Cal. ruling to the U.S. 9th Circuit on procedural and jurisdictional grounds and is currently awaiting the court’s decision [11]. If the U.S. 9th Circuit upholds the lower court’s ruling, it will mark the first time EPA will be required by a court to initiate rulemaking in response to a TSCA section 21 citizen’s petition. The 2016 FWW fluoride petition and subsequent challenge of EPA’s denial demonstrate how NGOs can utilize citizens’ petitions and the courts to effectuate stringent Agency regulation under TSCA. Under the second Trump administration’s “deregulatory agenda,” industry groups should anticipate pushback from NGOs in the form of citizens’ petitions under section 21. If a section 21 petition stands to negatively impact your company’s products, we encourage getting involved by submitting comments on a petition posted in the Federal Register or intervening in support of EPA when a petition seeking stringent regulation is denied.

[1] Other environmental statutes contain substantially similar provisions. See, e.g., CAA § 304(a)(2), CWA § 505(a)(2), etc. 
[2] See 40 C.F.R. Part 711.
[3] See EPA Empowers Americans with 2024 Chemical Data Reporting Information | US EPA.
[4] 17 F.3d 1453 (D.C. Cir. 1994).
[5] Absent a “tolling” situation, the statute of limitations for the 2020 CDR expired on January 29, 2026.
[6] 15 U.S.C. § 2620(a).
[7] 15 U.S.C. § 2620(b)(3).
[8] 82 Fed. Reg. 11,878 (Feb. 27, 2017).
[9] Id. Food & Water Watch v. EPA (Case No. 3:17-cv-02162-EMC). 
[10] Id., 2024 WL 4291497 (N.D. Cal. Sept. 24, 2024). 
[11] Food & Water Watch v. EPA (Case No. 26-1365).