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Natural Resources Defense Council v. EPA

Citation: 14 ELR 20819
No. No. 83 Civ. 8844 (KTD), 595 F. Supp. 1255/21 ERC 1625/(S.D.N.Y., 08/23/1984)

The court holds that the Environmental Protection Agency (EPA) violated the mandate of the Toxic Substances Control Act (TSCA) that it either initiate rulemaking proceedings to require testing of toxic substances on the Interagency Testing Committee (ITC) list or publish its reasons for not requiring testing. The court first addresses challenges to EPA's policy of accepting negotiated voluntary testing agreements from industry rather than publishing rules requiring testing. Though the decision under TSCA § 4 whether to require testing rests within the Administrator's discretion, it is mandatory that the Administrator make the choice; therefore EPA's actions are subject to review by citizen suit under TSCA § 20(a)(2). The court holds that EPA's program of negotiating voluntary testing agreements subverts TSCA's statutory scheme. Congress intended that ITC-listed chemicals on which there is insufficient data be tested pursuant to formal rulemaking, and the court rejects EPA's assertion that its failure to make threshold findings that testing is necessary shields it from the requirement to promulgate a rule or publish reasons. EPA's negotiation of testing agreements constitutes a de facto finding of testing necessity. Though the court recognizes that negotiation of test protocols may be useful if undertaken within the statutory framework, it holds that EPA had no authority to abandon the mandated rulemaking procedure in favor of negotiation without rulemaking. In addition to violating TSCA, the EPA procedure circumvented several other statutes — including one requiring that foreign governments be notified of decisions to require testing of chemicals — and clouded the reviewability of the process by the courts.

The court next addresses plaintiffs' challenge to EPA's use of an advance notice of proposed rulemaking (ANPR) to putatively initiate rulemaking proceedings on fluoroalkenes within TSCA's 12-month deadline for initating rulemaking. EPA's termination of the fluoroalkene rulemaking proceeding after initiation of the instant lawsuit does not moot plaintiffs' claim, since EPA continues to assert that its use of an ANPR was legal. The court holds that EPA's interpretation of the initiation-of-rulemaking requirement to include ANPRs is a reasonable and permissible interpretation of TSCA on a question to which Congress did not directly speak. The court leaves open, however, the possibility that EPA's failure to act on the ANPR for three years may be unreasonably delayed agency action in violation of the Administrative Procedure Act (APA).

The court deals similarly with the plaintiffs' challenge to EPA's two-phase rulemaking process. After first holding that EPA's selection of two-phase rulemaking is a final agency action ripe for review in district court, the court holds that EPA need not complete rulemaking within one year, it need only initate it. EPA's treatment of phase one rules as sufficient to initiate rulemaking is a reasonable and permissible interpretation of TSCA. Again, however, the court reserves judgment on whether the seven-year lapse of time since publication of phase one rules without further agency action constitutes agency action unreasonably delayed.

Finally, the court addresses plaintiffs' claims that agency action has been unreasonably delayed on test rules proposed over six years ago with no subsequent action. Initially, the court holds two of plaintiffs' claims moot because EPA has published notice that the proposed test rules would be withdrawn. Although TSCA does not explicitly set deadlines for final rule promulgation, the court holds that TSCA, through the APA, imposes a standard of reasonableness on EPA's timing. This standard of reasonableness does not require proof of bad faith, but only an unreasonable agency delay. The lapse of three and four years since proposed rulemakings for the chemicals — themselves promulgated only after EPA was sued to compel compliance — with no formal rulemaking constitutes unreasonable delay of agency action. EPA's asserted decision to await completion of industry testing programs constitutes EPA accepance of de facto voluntary testing programs, which is inadequate to fulfill the statutory mandate.

Counsel for Plaintiffs
Eric A. Goldstein, Jacqueline M. Warren, James Thornton
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Defendants
R. Nicholas Gimbel; Rudolph W. Giuliani, U.S. Attorney
One St. Andrew's Plaza, New York NY 10007
(202) 791-0055

Andrew G. Gordon
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-7213

Michael W. Steinberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3144

Counsel for Defendants-Intervenors
Robert M. Sussman, John Seymour
Richards, O'Neil & Allegaert
660 Madison Ave., New York NY 10021
(212) 207-1200

David F. Zoll, Sanford E. Gaines
Chemical Manufacturers Association
2501 M St. NW, Washington DC 20037
(202) 887-1100

Jerome Marshak
Shereff, Friedman, Hoffman & Goodman
919 Third Ave., New York NY 10022
(202) 758-9500

Stark Ritchie, General Counsel; Martha A. Beauchamp, John C. Chambers
American Petroleum Institute, 1720 L St. NW, Washington DC 20005
(202) 457-7000