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Walker v. EPA

ELR Citation: 23 ELR 20370
Nos. No. H-91-1798, 802 F. Supp. 1568/35 ERC 1648/(S.D. Tex., 08/04/1992)

The court holds that the U.S. Environmental Protection Agency's (EPA's) decision under §21 of the Toxic Substances Control Act (TSCA) denying a petition to revise the definition of "polychlorinated biphenyls" (PCBs) was not arbitrary and capricious. A products manufacturer filed a TSCA §21 petition seeking to amend the regulatory definition of "PCB" 40 C.F.R. §761.3, to exclude the less chlorinated biphenyls, monochlorobiphenyls, dichlorobiphenyls, and trichlorobiphenyls. EPA published its reasons for denying the petition in the Federal Register on May 22, 1991, and the manufacturer filed an action seeking to compel EPA to initiate the requested rulemaking. The court first holds that it has jurisdiction over the action, because TSCA §21 explicitly grants jurisdiction to review denials of petitions to the U.S. district courts. The court next observes that in contrast to the detailed description of de novo review available for denials of TSCA §21 petitions to issue new rules, TSCA §21 provides no description of the type of review available to denials of petitions to amend or repeal rules. Absent a statutory command to employ a particular standard of review for denials of petitions to amend or repeal rules, the court concludes that the Administrative Procedure Act's arbitrary and capricious standard of review is appropriate. In a footnote, the court observes that Congress intended that review of petitions for amendment or repeal of rules receive different treatment because existing rules were already subject to review under TSCA §19. The court next holds that the manufacturer has not demonstrated a need for extra-record discovery. The manufacturer alleged neither that the administrative record before the court is incomplete, nor that EPA engaged in improper behavior or bad faith. The court further concludes that EPA properly exercised its discretion in reviewing relevant scientific data and literature. Although an EPA predecisional memorandum states that the Agency did not review scientific references cited in the petition, it is not conclusive evidence that EPA failed to review the cited literature before issuing its decision. Moreover, the manufacturer did not analyze the data from the cited references or correlate it with the contentions in the petition. Next, the court concludes that the manufacturer incorrectly concludes that EPA denied the petition because it failed to address the question of PCB bioaccumulation in bottom-feeding fish. Instead, the petition denial resulted from EPA's resolution of a conflict in the evidence. Finally, the court holds that the manufacturer made no showing that the requested rule change is necessary to protect health and the environment from unreasonable risks of injury posed by toxic substances, as required by TSCA §21(b)(1).

Counsel for Plaintiff
David R. Walker
Royston, Razor, Vickery & Williams
2200 Texas Commerce Tower, Houston TX 77002
(713) 224-8380

Counsel for Defendants
Daniel D. Hu, Ass't U.S. Attorney
U.S. Attorney's Office
440 Louisiana St., 8th Fl., Houston TX 77002
(713) 238-9400