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Safer Chemicals, Healthy Families v. U.S. Environmental Protection Agency

ELR Citation: 49 ELR 20183
Nos. 17-72260, 17-72501, 17-72968, 17-73290, 17-73383, and 17-73390, (9th Cir., 11/14/2019)

The Ninth Circuit dismissed in part, granted in part, and denied in part petitions to review EPA's 2017 Risk Evaluation Rule, which established a process for evaluating the risks of chemical substances. Environmental and health groups argued the rule violated TSCA's requirement that EPA evaluate risks associated with a chemical's use collectively, by allowing the Agency to issue a final determination that a chemical substance did not pose an unreasonable risk after having looked at only one or a few of its conditions of use. The court found it lacked jurisdiction to review the claim because it was unclear, due to the rule's ambiguous text, whether EPA would actually conduct risk evaluations in the manner the groups claimed. The groups also argued the rule expressed an impermissible intent to exclude some conditions of use from the scope of risk evaluation, in violation of TSCA's requirement that EPA consider all of a chemical's conditions of use when conducting an evaluation. The court concluded that the claim failed on the merits because the rule did not in fact assert discretion to exclude conditions of use from evaluation. Lastly, the groups challenged the rule's exclusion of legacy activities—legacy uses, associated disposals, and legacy disposals—when considering conditions of use. The court found that EPA's exclusion of legacy uses and associated disposals contradicted the plain text of TSCA's definition of "conditions of use," but that its exclusion of legacy disposals did not. It therefore dismissed in part, granted in part, and denied in part the groups' petitions.