TSCA Rulemaking Litigation Consolidated in Ninth Circuit
DECEMBER 14, 2017
The U.S. Court of Appeals for the Fourth Circuit elected to a transfer a challenge to a Toxic Substances Control Act (TSCA) implementation rule to the Ninth Circuit, consolidating the legal challenges and rejecting EPA’s request to maintain the lawsuit in the Fourth Circuit. The Ninth Circuit previously denied a motion to transfer in November.
A coalition of environmental groups filed a petition for review in August, challenging EPA’s final TSCA regulations for risk prioritization and risk evaluation.
The petition alleges these two TSCA framework rules fail to provide the protections against unsafe chemicals that Congress required in the risk prioritization and risk evaluation provisions of the amended TSCA law, which the petitioners argue are intended to ensure that unreasonable risks to health and the environment are fully assessed and eliminated.
The petitioners contend the final rules are arbitrary and capricious, an abuse of discretion, and are in excess of EPA’s statutory jurisdiction and authority.
The environmental and public health groups are concerned with particular aspects of EPA’s final rules, including the limit to the scope of the “conditions of use” that the Agency must consider when designating a substance as either “high” or “low” priority and when conducting a risk evaluation, if deemed “high” priority.
The groups assert that the statute requires that EPA consider all conditions of use and cannot, in the petitioners’ estimation, “cherry pick” what uses the Agency will consider during prioritization and evaluation.
ILMA and other industry groups commented to EPA on its proposed rule that it must be reasonable in its interpretation of known, intended, or reasonably foreseen uses and must not get bogged down in a “fishing excursion” and scour for every possible use of a substance, no matter how unlikely it may be.
EPA responded to ILMA’s and similar comments stating, “EPA has re-interpreted the provisions related to the conditions of use and determined that the statute provides the Agency with discretion to determine the appropriate conditions of use to analyze within a risk evaluation. Consequently, EPA may, on a case-by-case basis, exclude certain activities that EPA has determined to be conditions of use in order to focus its analytical efforts on those exposures that are likely to present the greatest concern, and consequently merit an unreasonable risk determination.”
Another lawsuit was filed challenging the TSCA Inventory Reset Rule in the D.C. Circuit; however, neither side has requested that this case be transferred.