Posted on January 30, 2019 by Lynn L. Bergeson
EPA has maintained a frantic pace implementing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the 2016 amendments to the Toxic Substances Control Act (TSCA). Less publicized, but as significant, are the spate of judicial challenges occasioned by new TSCA. There are, as reported previously in this space, the ongoing challenges to the foundational TSCA “framework rules,” federal appellate challenges to the core TSCA rules brought under TSCA Section 19(a). Newer actions under other TSCA provisions have been brought more recently.
On January 14, 2019, in the U.S. District Court for the District of Vermont, the Vermont Public Interest Group and others sued EPA under TSCA Section 20(a) to compel it to perform its “mandatory duty” to address the alleged imminent threat to human health posed by paint removal products containing methylene chloride. This is the first test of the scope of EPA’s mandatory duties under TSCA Sections 6(a) and 7. Section 20(a) provides that “any person may commence a civil action … against the Administrator to compel the Administrator to perform any act or duty under this Act which is not discretionary.” Plaintiffs allege that EPA has not performed its mandatory duty under TSCA Sections 6(a) (authorizing EPA to regulate substances that present an unreasonable risk of injury to health or the environment) and TSCA Section 7 (authorizing EPA to commence civil actions for seizure and/or relief of imminent hazards). EPA proposed a rule in 2017 under TSCA Section 6 to prohibit the manufacture, processing, and distribution of methylene chloride for consumer and most types of commercial paint and coating removal. Except for extending the comment period multiple times, no further action has been taken to issue the rule in final.
In another regulatory action, on December 21, 2018, EPA denied a TSCA Section 21 petition requesting that EPA amend the TSCA Chemical Data Reporting (CDR) rule to increase asbestos reporting, exclude asbestos from certain exemptions, and lift Confidential Business Information claims on asbestos information reported under the CDR rule. Due to the government shutdown, the notice has not yet been published in the Federal Register, but EPA has posted a prepublication version. It is unclear whether petitioners will appeal EPA’s decision, but chances are they will.
In another TSCA Section 21 denial action, litigation did follow. In 2017, EPA denied a Section 21 petition requesting that EPA regulate under TSCA Section 6 the fluoridation of drinking water based on petitioners’ concern that ingestion of fluoride poses an unreasonable risk to humans. EPA denied the petition and petitioners appealed. On December 21, 2017, the U.S. District Court for the Northern District of California ruled that EPA had wrongly dismissed the petition based on EPA’s argument that petitioners were required to demonstrate under Section 21 that all conditions of use of fluoride posed an unreasonable risk, not just the fluoridation of drinking water.
For TSCA aficionados, the two Section 21 petitions raise a host of interesting TSCA issues beyond the scope of this blog. These include, among others, EPA’s interpretation of “conditions of use,” a term new to TSCA since Lautenberg, and what standard of review applies under Section 21, whether de novo or review of the administrative record. The key take-away here is that these actions reflect the commitment of EPA detractors to use TSCA Sections 19, 20, and 21, the courts, and every other means available to oppose the Administration’s TSCA implementation efforts. When and how the courts will respond is unclear. These cases will be closely watched, and more are expected.