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Environmental Defense Fund v. Thomas

Citation: 17 ELR 20724
No. No. 85-0973, 657 F. Supp. 302/25 ERC 1777/(D.D.C., 03/30/1987)

The court rules that the Environmental Protection Agency's (EPA's) denial of citizen petitions under § 21 of the Toxic Substances Control Act (TSCA) is not subject to judicial review under the Administrative Procedure Act. The court initially holds that plaintiffs' suit seeking review of EPA's denial of their § 21 petition that requested EPA to regulate dioxins and dibenzofurans was timely filed. The court rules that Rule 6(a) of the Federal Rules of Civil Procedure governs the calculation of § 21's time limits. Plaintiffs' complaint, which was filed four days after the 60-day filing period in § 21 expired, was nevertheless timely filed, since Rule 6(a) provides for extensions when the last day of a statutory time period falls on a weekend or holiday. The court holds that plaintiffs' suit was not mooted when EPA issued testing rules under TSCA § 4 for those isomers for which it believed there was insufficient data. Plaintiffs had requested EPA to issue testing rules for these substances if it declined to take any or all of the other actions requested in its lengthy petition. Plaintiffs' request for testing rules was not intended as an alternative to their request for rulemaking under § 6.

The court next holds that plaintiffs are not entitled to review under the APA of EPA's reasons for denying their petition. This construction is not inconsistent with TSCA § 21(b)(5), which provides that the right to de novo judicial review of a petition denial is in addition to other remedies provided by law. In addition to their right to de novo review of petition denials, petitioners may also seek review under the APA if EPA grants the petition but issues a rule with which petitioners are dissatisfied. Subjecting a petition denial to both de novo and APA review would shift the burden of proof established by Congress for showing unreasonable risk of injury from petitioners to EPA. Further, § 21 contains no substantive standards required for APA review that would govern EPA's consideration of citizen petitions. The court rejects plaintiff's argument that the substantive criteria governing petition denials are found in those sections of TSCA under which EPA is requested to act. These sections require EPA to make certain findings before it acts, not before it declines to act. The requirement under § 21 that EPA publish its reasons for denying a petition in the Federal Register does not imply that the justifications are subject to APA review. Since the ultimate issue in a § 21 petition is one of fact, the need for de novo review isnot obviated by the presence of certain purely legal issues in plaintiffs' complaint. EPA's construction of the statute does not grant greater procedural rights to manufacturers than to citizen groups. Moreover, denying APA review of § 21 petition denials is consistent with TSCA's legislative history. Finally, the court dismisses plaintiffs' claim that EPA has failed to perform a nondiscretionary duty under TSCA. Plaintiffs have failed to identify any nondiscretionary duty arising from EPA's denial of plaintiffs' request for regulation of the disposal of wastes based on the agency's determination that the risks could be addressed under other regulatory authorities.

[Plaintiffs' memorandum in support of their motion for summary judgment is digested at ELR PEND. LIT. 65883.]

Counsel are listed at 17 ELR 20283.