24 ELR 10015 -- How to Handle Difficult Chemicals: The Unused Tool in EPA's Chemical Toolbox -- Section 7 of the Toxic Substances Control Act

How to Handle Difficult Chemicals: The Unused Tool in EPA's Chemical Toolbox -- Section 7 of the Toxic Substances Control Act

Michael J. Walker and Jamie C. Eisenfeld

Editors' Summary: After TSCA was enacted in 1976, some commentators described it as the most powerful of all the environmental laws. Congress intended it to provide for the comprehensive and direct control of commercial chemicals' potential health or environmental effects in a true cradle-to-grave tracking system. Indeed, it was the single law addressing toxic substances that could cover all areas of environmental regulation, supplementing sections of existing toxic substances laws. In the 17 years since its enactment, however, TSCA has not fulfilled these goals or expectations. Despite the insightful and potentially far-reaching authority that TSCA places at EPA's disposal, the Agency has not used that authority to move aggressively to curtail the use, distribution, and disposal of toxic threats. One section of TSCA that EPA has significantly underused is TSCA 7, the imminent hazard provision.

This Article addresses the inadequate implementation of 7. The author briefly reviews TSCA's overall statutory enforcement scheme, noting impediments to the implementation and application of 7. Next, in analyzing considerations critical to decisions to file 7 actions, the author provides an overview of the few decisions and administrative actions involving 7 and suggests how EPA can perhaps better use 7. The author also suggests how EPA can better decide when a 7 action is more appropriate and suitable than other TSCA enforcement activity. The author concludes that EPA needs to identify and eliminate impediments to its 7 authority by developing clear guidelines for 7 actions, and redelegate decisionmaking authority within EPA over imminent hazards.

Michael J. Walker is the Enforcement Counsel for TSCA and FIFRA in the Office of Enforcement, U.S. Environmental Protection Agency, Washington, D.C. The opinions expressed are not necessarily those of EPA. Ms. Eisenfeld researched this Article while working as a law clerk in the Toxics Litigation Division at EPA. Ms. Eisenfeld is a graduate of Arizona State University Law School and she is a member of the Pennsylvania Bar.

[24 ELR 10015]

Prior to the enactment of the Toxic Substances Control Act (TSCA)¹ in 1976, no comprehensive statute authorized direct control of industrial chemicals for their potential health or environmental effects. Instead, toxic chemicals were sporadically regulated by specialized provisions of existing federal statutes that focused on other environmental concerns.² Congress intended for TSCA to fill the numerous regulatory gaps³ in the control of commercial chemicals and to provide a true cradle-to-grave tracking system for the protection of public health.⁴

In the 17 years since its enactment, however, TSCA's several insightful and potentially far-reaching provisions have not been fully implemented, preventing even partial achievement of the Act's goals. These failures appear to stem from both philosophical differences in implementation strategy and statutory shortcomings that are rooted in differences between the Senate and House bills and which arose from last minute compromises that allowed TSCA finally to become law -- six years after the legislation's initial 1970 proposal by Senators Hart and Magnuson.

Section 7 of TSCA, the imminent hazard provision, is one of TSCA's more progressive provisions, yet it has been significantly underused. The U.S. Environmental Protection Agency (EPA and/or Agency) has never published guidelines for § 7 in the Code of Federal Regulations. Consequently, complaints filed in federal district court seeking injunctive relief based on § 7 are rare, though limited judicial decisions and consent decrees based on § 7 allegations exist.⁵

[24 ELR 10016]

Examination of the imminent hazard provision's absence from TSCA's enforcement scheme reveals that developing the fast restrictive action authorized by Congress under § 7 as a presence in that scheme will, at least, hinge on the curing of distinct institutional burdens and associated delays that have potentially compromised its enforcement potential. Identifying and alleviating the burdens and delays will require proactive attention to the threats that TSCA-regulated chemicals pose to human health and the environment. This Article addresses the inadequate implementation of § 7 by noting two of these impediments and exploring considerations that a person seeking to implement § 7 more fully will need to heed.

This Article briefly reviews TSCA's statutory enforcement scheme. This Article then notes two of the impediments to the implementation and application of § 7. Next, this Article reveals considerations essential to decisions to file § 7 actions. This inquiry provides an overview of the few decisions and administrative actions involving § 7 and suggests how EPA perhaps can better use § 7. This Article concludes by suggesting ways in which to decide when a § 7 action is more appropriate and suitable than other TSCA enforcement activity.

TSCA's Statutory Enforcement Scheme

TSCA was enacted by Congress in an effort to "prevent unreasonable risks of injury to health or the environment associated with the manufacture, processing, distribution in commerce, use, or disposal of chemical substances."⁶ Congress was particularly concerned with preventing unreasonable risks to health and the environment before both the manufacture of chemicals and their entrance into the market.⁷ Therefore, much of the legislation includes requirements that apply early on in the life of a chemical, such as premarket testing and notification.

TSCA §§ 4, 5, and 6 have become the Act's most important substantive provisions, providing authority for the bulk of EPA's regulatory activity regarding the control of chemicals subject to TSCA. Section 4 establishes broad authority for promulgating test rules for chemicals. Section 5 provides for premanufacture review of new chemicals being prepared for introduction into commercial production or import into the United States. The statute also gives significant regulatory authority to EPA via the § 6 rulemaking provisions. Section 6 allows EPA by rule to impose certain requirements and restrictions on commercial chemicals where the Agency finds "a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use, or disposal of a chemical substance … presents or will present an unreasonable risk of injury to health or the environment."⁸ EPA also may prohibit "or otherwise regulate" any manner of the chemical's commercial use or method of disposal.⁹

Congress also gave EPA significant new authority through § 7. Entitled "Imminent Hazards," § 7 authorizes EPA¹⁰ to seek directly temporary or permanent relief in district court against certain persons involved with an imminently hazardous chemical, and, further, to seize such a chemical.¹¹ Section 7, unlike § 6, does not require that EPA first promulgate a rule, follow notice-and-comment procedures, or publish a Federal Register statement or findings before restricting hazardous chemical use. Apparently, Congress believed the imminence of a potential or actual hazard requires faster action than can be taken using the rulemaking procedure.

Impediments to Implementation of § 7

The enforcement mechanism of § 7 has been underused. The absence of § 7 from TSCA enforcement activity derives significantly, and clearly, from institutional burdens and subsequent delays that have compromised its potential strength.

Delegation of Authority

One clear institutional burden stems from the delegation to the already overburdened Assistant Administrator for Pesticides and Toxic Substances at EPA of authority to determine whether a § 7 imminent hazard exists.¹² The delegation causes obvious delays. Further delays no doubt result from the application of the Assistant Administrator's personal views to the determination of what constitutes a § 7 imminent hazard. Thus, the delegation conflicts with the speed and efficiency that Congress intended § 7 actions to wield.

The need for fast action to address imminent hazards requires that the imminent hazard determination be made at a lower level, where better substantive knowledge of the chemical threat and current exposure or risk pattern exists. The existing statute and present EPA delegations of authority, however, do not permit redelegation to operating divisions or regions. Nonetheless, the Office of Pesticides and Toxic Substances "will consider a review of the concurrence requirement in the future after more experience is gained with the use of § 7 imminent-hazard actions and criteria can be developed for those cases which will not require immediate rulemaking."¹³ Despite the promise that this statement holds, experience with § 7 actions remains minimal and adequate criteria have not been developed.

Authority to Bring TSCA § 7 Actions

Another potential impediment to filing a § 7 action in district court arises from a division of authority between imminent hazard determination decisionmaking and authority to file the § 7 action. As noted, EPA is vested with the authority to determine whether a § 7 imminent hazard exists, and it must do so prior to the commencement of any court action. [24 ELR 10017] Congress also authorized the EPA Administrator to represent EPA directly in a § 7 action, although it need not directly represent EPA. Once the imminent hazard determination is made, the Assistant Administrator for Enforcement and the Regional Administrators may, in turn, request that the U.S. Attorney General represent EPA in the § 7 action,¹⁴ because the Administrator has delegated this authority to EPA attorneys, as well as to the U.S. Attorney General.

For all practical purposes EPA has surrendered the authority to go to court on its own behalf, and indeed, presently, all enforcement actions filed in U.S. District Court to which EPA is a party are processed through the U.S. Department of Justice (DOJ), Environment and Natural Resources Division.¹⁵ As a 1977 agreement between DOJ and EPA states, the "Attorney General … shall have control over all cases to which the Environmental Protection Agency … or the Administrator of the Environmental [Protection] Agency … is a party."¹⁶ Under this agreement, the DOJ has 60 days to review all civil referrals.¹⁷ Although the DOJ may not question the determination of the existence of an imminent hazard, for which authority is vested with EPA, it may decline to take cases submitted to it by EPA¹⁸ through the assertion of legal, policy, or procedural concerns.

This division of authority is problematic. The DOJ might decline to take § 7 cases, especially in new areas or where their legal staff determine that there is insufficient supporting evidence, because it has a high institutional premium on bringing "winning" cases. This legitimate preference for "clear-cut winners" is not limited to TSCA matters. If the DOJ refuses to take a § 7 case, it is impractical and questionable whether EPA attorneys may, in the alternative, represent EPA considering the government-wide policy that only the U.S. Attorney General or her designees can represent the United States in district courts.¹⁹ Consequently, rather than make affirmative imminent hazard determinations only to be abandoned by the DOJ, EPA has refrained from making affirmative § 7 determinations. This caution perhaps limits EPA's exposure to criticism leveled at its lack of authority to follow through concerning actions in which it has announced the presence of an imminent hazard.

Considerations in Pressing a § 7 Claim

Definition of a § 7 Imminent Hazard

TSCA § 7 claims hinge on the presence of an "imminent hazard." Therefore, it is important to understand the reach of the term's definition. A review of the current definition and its derivation is useful toward this end, as is examination of similar language in other statutes.

* Current Statutory Definition of an Imminently Hazardous Chemical. Disagreements between the House and Senate concerning the definition of an imminent hazard under TSCA § 7 eventually concluded in compromise. The definition currently reads:

the term "imminently hazardous chemical substance or mixture" means a chemical substance or mixture which presents an imminent and unreasonable risk of serious or widespread injuryto health or the environment. Such a risk to health or the environment shall be considered imminent if it is shown that the manufacture, processing, distribution in commerce, use, or disposal of the chemical substance or mixture, or that any combination of such activities, is likely to result in such injury to health or the environment before a final rule under section [6] of this title can protect against such risk.²⁰

"Manufacture" includes not only production of the chemical itself, but importation of the substance into the United States.²¹

* Senate Version. The Senate defined an imminent hazard in the Senate Report as "a situation involving an unreasonable risk of death, serious illness or serious personal injury, or serious environmental harm which will occur prior to the completion of an administrative hearing or other proceedings authorized under any other section of this bill."²² Under the Senate bill, an imminent hazard would exist when evidence

sufficient to show that a situation exists in which the continued use of a substance or mixture would be likely to result in unreasonable adverse effects on the environment or an unreasonable hazard to the survival of an endangered species. An unreasonable adverse effect is defined to mean an unreasonable risk to man or the environment taking into account the economic, social, and environmental costs and benefits of the use of the substance or mixture.²³

* House Version. Under the House amendment, an imminently hazardous chemical substance or mixture was defined as one which

causes or significantly contributes to an imminent and unreasonable risk of serious or widespread harm to health or the environment. Such risk shall be considered imminent if it is shown that the manufacture, processing, distribution in commerce, use or disposal of a substance or mixture is likely to result in an unreasonable risk of serious or widespread harm to health or the environment before a final rule under section 6 can protect against the risk.²⁴

* Conference Substitute. In conference, the House version was accepted. Thus, an imminently hazardous chemical need [24 ELR 10018] not be serious if it is widespread.²⁵ Congress did not intend "widespread" injury to be limited to a geographically widespread risk. Instead, "an unreasonable risk of harm affecting a substantial number of people, even though it is within a rather limited geographic area, should be deemed adequate to satisfy the requirement of an unreasonable risk of widespread injury to health."²⁶ Congress also did not intend that actual injury to health or the environment must occur before a § 7 imminent hazard is found, having noted that "while the reasonable risk of injury must be imminent, the physical manifestations of the injury itself need not be."²⁷ Thus, an imminent hazard may be found at any point in the chain of events which may ultimately result in injury.²⁸

One clarification originating in the Senate version was added to the final substitute. It authorizes relief against persons who use or dispose of an imminently hazardous substance or mixture and persons who manufacture, process, or distribute in commerce such substances and mixtures. According to the committee conference report:

If the Administrator has not used the authority provided in section 6(d)(A)(i) to make a section 6(a) rule immediately effective in order to protect against an imminently hazardous substance or mixture, the Administrator must bring an action under section 7. The conferees have imposed such a nondiscretionary duty upon the Administrator to insure that protection is provided against imminently hazardous substances, mixtures, and articles containing such substances and mixtures.²⁹

* Similar Language in Other Statutes. Other environmental statutes contain provisions that concern "imminent hazards."³⁰ For example, the Federal Food, Drug, and Cosmetic Act (FFDCA)³¹ allows the Secretary of Health and Human Services to suspend immediately the approval of any drug application if she finds "that [it poses] an imminent hazard to the public health."³² Where an imminent hazard is not present, the Secretary shall withdraw approval only after due notice and an opportunity for a hearing has been given to the applicant.³³

Similarly, § 6 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),³⁴ allows the EPA Administrator to suspend a pesticide's registration while a cancellation hearing is pending, to "prevent an imminent hazard to human health."³⁵ Although Congress did not refer to FIFRA's imminent hazard provision when promulgating TSCA § 7, FIFRA § 6 nevertheless provides guidance as to the meaning of "imminently hazardous chemical." FIFRA defines "imminent hazard" as:

a situation which exists when the continued use of a pesticide during the time required for cancellation proceedings would be likely to result in unreasonable adverse effects on the environment or will involve unreasonable hazard to the survival of a species declared endangered or threatened by the Secretary [of Interior] pursuant to the Endangered Species Act of 1973.³⁶

The District of Columbia Circuit Court of Appeals has held that a FIFRA imminent hazard is not limited to a concept of crisis: "It is enough if there is substantial likelihood that serious harm will be experienced during the year or two required in any realistic projection of the administrative process."³⁷ In a subsequent case, the court stated that "it is not necessary to have evidence on … a specific use or area in order to be able to conclude on the basis of substantial evidence that the use of [a pesticide] in general is hazardous."³⁸ "Reliance on general data, consideration of laboratory experiments on animals, etc." has been held to be a sufficient basis for an order canceling or suspending the registration of a pesticide determined to be imminently hazardous under FIFRA.³⁹ FIFRA § 6 suspensions of certain uses of pesticides, such as heptachlor and chlordane,⁴⁰ and aldrin and dieldrin (used to control corn pests),⁴¹ have also been upheld by the D.C. Circuit.

Despite ambiguities, perhaps the FFDCA and FIFRA definitions of imminent hazard can assist the application of TSCA § 7 actions. This could be accomplished through a comprehensive assessment of existing toxicological or epidemiological research data, tied clearly to the imminent hazard that the chemical, in its use or misuse pattern, allegedly represents. As demonstrated through the discussion of the FFDCA and FIFRA litigation, the standard to be applied should be a preponderance of the evidence -- a standard readily achievable under TSCA.

Federal Court Authority to Require EPA to Promulgate a § 6 Rule Once § 7 Relief Has Been Granted

TSCA § 7(a)(1) clearly states that a § 7 action may be taken notwithstanding the existence of a § 6 rule. But whether EPA must begin § 6 rulemaking proceedings after § 7 restrictive action has been taken, and whether a § 6 rule must be promulgated following a § 7 action, is unclear.⁴² The result of this ambiguity has obvious ramifications: fewer resources are exhausted if a § 6 action is taken alone than if a § 7 action is taken and must be followed by a § 6 rule.

Section 6(a)(2) is clear about Congress' intent that EPA must commence a § 7 action in district court if an imminent [24 ELR 10019] hazard exists and EPA has not made a § 6(a) rule immediately effective.⁴³ Congress stated in the House Conference Report:

If the Administrator has not used the authority provided in section 6(d)(2)(A)(i) to make a section 6(a) rule immediately effective in order to protect against an imminently hazardous substance or mixture, the Administrator must bring an action under section 7. The conferees have imposed such a nondiscretionary duty upon the Administrator to insure that protection is provided against imminently hazardous substances, mixtures, and articles containing such substances and mixtures.⁴⁴

The most logical interpretation of this language and Congress' intent is that EPA must commence either § 6 or § 7 action, but not necessarily both. If an imminent hazard exists and a § 6(a) rule has not been promulgated, EPA must act under § 7. The language suggests that if a § 6 rule action has begun and an imminent hazard is then found, EPA may begin a § 7 action at that moment to deal more quickly with the situation. Once a § 7 district court order has been granted, a § 6 rule is unnecessary.

Case law supports this interpretation. In United States v. Commonwealth Edison Co.,⁴⁵ the district court stated:

The imminence of the hazard posed by the use or disposal of a chemical is defined in part with reference to the likelihood that the injury will occur before a regulation can be promulgated to protect against the harm, § [7(f)]. This does not mean that the EPA administrator can bring an action under § [7] only when a regulation is to be promulgated.… Requiring the EPA to couple new regulations with every § [7] action would both complicate enforcement efforts and lead to an ever-growing regulatory scheme of impenetrable complexity.⁴⁶

Nonetheless, the filing of a § 7 action remains a rare event, but perhaps not inexplicably. No standard or procedure has been set forth to guide the process of determining whether an imminent hazard exists. No standard operating procedure exists to examine the possibility of a risk of widespread injury regardless of whether a § 6 rulemaking action has begun. The absence of such guidelines has perhaps limited the number of § 7 actions filed by making difficult EPA's choice between initiating a § 6 or § 7 action.

Whether § 7 Restrictive Orders Must Meet the Requirements of the Administrative Procedure Act

Filings of § 7 actions have perhaps also been limited by a belief that § 7 restrictive orders must meet the requirements of the Administrative Procedure Act (APA).⁴⁷ The issue is whether a § 7 restrictive action, without any § 6 rulemaking mandate, fulfills the APA's requirements for rulemaking.⁴⁸ The APA's language indicates, in fact, that the APA's procedural requirements are inapplicable to a § 7 restrictive order.

The APA requires that interested persons be given notice and an opportunity to participate in rulemaking procedures.⁴⁹ But such requirements do not apply "when the agency for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,"⁵⁰ except when notice or a hearing is required by statute. Also, the APA does not require an agency hearing when the situation involves "a matter subject to a subsequent trial of the law and the facts de novo in a court."⁵¹

Thus, the nature and character of a § 7 action suggests that the APA's requirements do not apply. To gain a § 7 order, government must establish that a threat to the environment or to health is both imminent and commensurate to that posed by other substances covered by TSCA. It is reasonable that the APA's requirements not apply because the requirements that the government must satisfy to gain a federal court's grant of a § 7 order "protect[] regulated companies from … arbitrary or frivolous enforcement efforts.…"⁵²

Prior Administrative and Judicial Action Under § 7

EPA has done little with § 7. As noted, guidelines have not been published in the Code of Federal Regulations, and any policy statements that refer to § 7 do so indirectly, focusing instead on another law or section of TSCA. Few federal complaints are based on § 7, and few judicial and administrative decisions interpret or even discuss TSCA's imminent hazard provision.

There has been only one judicial ruling in a § 7-based case,⁵³ and two other § 7 cases have arisen in which consent decrees were approved of and entered in district court prior to trial.⁵⁴ The claims in each case were based on the imminent hazard posed by polychlorinated biphenyls (PCBs). PCBs are chemically stable, fire resistant, electrically resistant, toxic, persistent, and can have long-term adverse effects on humans and the environment. They are the only chemicals mentioned by name in TSCA, and are controlled by TSCA § 6(e).

When seeking a § 7 district court order, EPA has always done so in conjunction with a claim based on § 17.⁵⁵ Section 17(a)(1)(C) allows the government to bring a civil action in federal district court, granting the court jurisdiction to "compel the taking of any action required by or under this chapter."⁵⁶ Essentially, cases based on §§ 7 and 17 use § 7 to obtain relief for chemicals for which no § 6 rules exist [24 ELR 10020] and § 17 to obtain immediate compliance with requirements of existing regulations.

There is no reason to believe, however, that § 7 could not be used unless there is an ongoing violation of existing law. In the Commonwealth Edison Co.⁵⁷ decision, EPA filed a TSCA action in district court against a company for its improper and inadequate cleanup of PCBs and polychlorinated dibenzofurans,⁵⁸ which spilled from the company's ruptured electrical capacitors. The company removed visible traces of the spilled dielectric oil containing the PCBs but did not test the sites to determine the efficacy of the cleanup. EPA site-test results revealed the presence of high levels of PCBs. In its complaint, EPA alleged that the company violated EPA's PCB regulations, promulgated pursuant to § 6(e), and that the spilled oil was an imminently hazardous chemical substance under § 7. Section 17 provided the district court with jurisdiction for the § 6 claims, whereas jurisdiction for the § 7 claim needed no separate authority because such jurisdiction is contained within the imminent hazard provision itself.⁵⁹ The court held that the PCB spills could constitute a § 7 imminent hazard and that the government could bring a § 7 action against the company, notwithstanding the existence of the § 6 PCB regulations.⁶⁰

The court viewed § 7 as a complement to § 17, and as a means to close regulatory gaps, stating:

[Section 7] is best viewed as a complement to § [7]. Section [7] permits the government to bring an action for violation of existing regulations. Section [7] permits the government to close regulatory loopholes by taking action against applications of toxic chemicals whose health and environmental risks are not sufficiently minimized by the regulatory scheme.⁶¹

The court also stated that the focus of a § 7 case should be "upon the seriousness of the real or threatened hazard posed by a toxic chemical or the particular application of a toxic chemical."⁶² By initiating § 7 cases for immediate relief, EPA can better decide what to do, when to act, and in what order, avoiding delay that is inherent in promulgating a regulation to control or restrict a chemical under § 6 of TSCA.

When § 7 Actions for Injunctive Relief Are Appropriate and Suitable

Because a § 7 action is appropriate when a hazard must be dealt with before a final § 6 rule can be issued, the first consideration in determining the appropriateness of a § 7 action is the amount of time it will take EPA to issue a final § 6 rule. EPA shall issue a final § 6 rule "[a]s soon as feasible after the deadline for submittal of reply comments."⁶³ According to the regulations, the estimated time elapsed from the date of the first Federal Register publication of a notice of proposed rulemaking to the deadline for reply comments is 127 days.⁶⁴ In practice, this "as soon as feasible" time allowance can take anywhere from one to several years. For example, a § 6(a) rule for aerosol propellant chlorofluoroalkanes became final 10 months after the proposed rule was published in the Federal Register,⁶⁵ and publication of the final rule for chromium took almost two years.⁶⁶ Witness also that EPA has yet to issue a formaldehyde rule, despite having had published an advanced notice of proposed rulemaking on May 23, 1984.⁶⁷

Although § 6 rulemaking can be time-consuming, TSCA § 5(f) provides that a § 6 proposed rule is effective upon publication if certain activities associated with a toxic chemical present or will present "an unreasonable risk of injury to health or environment before a rule promulgated under section [6] … can protect against such risk."⁶⁸ Section 5(f) allows for an immediately effective rule when a person may manufacture a new chemical substance or manufacture or process any chemical substance for a significant new use.⁶⁹ Therefore, when dealing with new chemicals or new chemical uses, the relevant issue may be the time which elapsed from the point of discovery of the presence of an unreasonable risk of injury to the publication of a proposed rule in the Federal Register.

It is questionable whether going to federal district court for § 7 relief would be faster than publishing a proposed notice of rulemaking in the Federal Register. The lack of EPA-set § 7 guidelines makes difficult the differentiation between a § 5(f) unreasonable risk of injury and a § 7 imminent risk of widespread or serious injury. Despite the fact that the terms' ambiguities make line drawing difficult, however, the statutory language nonetheless suggests that a § 7 risk is more serious than a § 5(f) risk.

Perhaps EPA would choose between a § 6 immediately effective rule and a § 7 injunctive order based on the type of relief each provides. An immediately effective § 6 rule may (1) limit the amount of chemical substance manufactured, processed, or distributed; (2) prohibit the manufacture, processing, or distribution for a particular use; (3) require the chemical or articles containing the substance to be marked with clear and adequate warnings and use instructions; (4) require manufacturers and processors to make and retain records; (5) prohibit or otherwise regulate commercial or disposal methods; and (6) require manufacturers or processors to give notice of the unreasonable risk of injury to distributors and to the public and to replace or repurchase such chemical substance.⁷⁰ If EPA makes a § 6(a) proposed rule immediately effective, § 5(f)'s only limitation on the type of relief available is that an immediately effective § 6(a) rule cannot prohibit all manufacture, process, or distribution of the relevant chemical.⁷¹

[24 ELR 10021]

Section 7 judicial relief is broader. Section 7 relief is prescribed as "temporary or permanent relief as may be necessary to protect health or the environment from the unreasonable risk associated with the chemical substance, mixture, or article."⁷² It is not limited only to persons who may manufacture new chemicals or process any chemical substance for a significant new use. Such relief as may be necessary includes issuance of a mandatory order requiring (1) notification to purchasers of the substance of the associated risk; (2) public notice of such risk; (3) recall; and (4) replacement or repurchase of a chemical substance.⁷³

Based on the broad relief Congress authorized under § 7, complete prohibition of all manufacture, processing, and distribution of the imminently hazardous chemical is an appropriate form of restrictive relief. Therefore, if total prohibition is the specific relief desired by EPA, or if a new chemical or new use is not involved, then a § 7 action is the action of choice and must be filed in district court, it being preferable to publication of an immediately effective § 6 rule.

Conclusion

With the expanding body of scientific and health data suggesting actual or potential serious and imminent toxic threats to human health or the environment, it is critical that EPA have adequate tools and authority to move aggressively to curtail the use, distribution, and disposal of toxic threats. While adequate authority appears to exist in TSCA or other statutes to address longer term concerns by rule or regulation, significant chemical threats that represent imminent hazards can and should be quickly addressed through the federal courts under TSCA § 7.

EPA should identify and eliminate impediments to using its § 7 authority by developing clear guidelines regarding the type of evidence required to prove the existence of an imminent hazard. In addition, the Administrator should consider redelegating decisionmaking authority, and accountability, to EPA officials charged with collecting and monitoring chemicals for risk and threat to public health and the environment. This delegation would include empowering, in appropriate cases, EPA's litigation counsel to represent the Administrator directly in federal causes of action.

Movement toward identifying the most toxic chemicals and removing or controlling their exposure pathways to humans or the environment can be enhanced by clear signals that the Agency is ready, willing, and able to seek injunctive relief under § 7.

1. 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA §§ 2-311 (1976).

2. For example, the Clean Air Act (CAA), which addresses the protection and enhancement of the nation's air resources, authorizes regulation of fuel additives to control exposure to lead and benzene. 42 U.S.C. § 7545, ELR STAT. CAA § 211 (1990).

3. See 1976 U.S.C.C.A.N. 4491.

4. TSCA provides for "preconception" review of chemicals in the cradle-to-grave legislative scheme, requiring premanufacture review before commercial production. See 15 U.S.C. § 2604, ELR STAT. TSCA § 5.

5. Since 1976, only five referrals alleging violations of TSCA § 7 have been referred by EPA to the Department of Justice (DOJ).

6. S. REP. No. 698, 94th Cong., 2d Sess. 1 (1976), reprinted in 1976 U.S.C.C.A.N. 4491.

7. Id. at 5.

8. 15 U.S.C. § 2605(a), ELR STAT. TSCA § 6(a).

9. 15 U.S.C. § 2605(a)(5), (a)(6)(A), ELR STAT. TSCA § 6(a)(5)-(6)(A).

10. Congress, in a move unparalleled in any other federal environmental statute, specifically authorized counsel from EPA to go directly to court to represent the Administrator in a TSCA § 7 proceeding, allowing the Agency to avoid reliance on the DOJ.

11. 15 U.S.C. § 2606, ELR STAT. TSCA § 7(a)-(b).

12. EPA's DELEGATIONS MANUAL, TSCA, § 12-3-E (1986). Historically, limited authority was granted to EPA Regional Administrators who must receive concurrence from an EPA Assistant Administrator in Washington, D.C., before exercising their authority.

13. Id.

14. Id. at § 12-3-F.

15. Administrative actions seeking civil penalties are litigated by EPA's attorneys under Agency procedure rules. 40 C.F.R. pt. 22.

16. Memorandum of Understanding Between the Department of Justice and the U.S. Environmental Protection Agency 2 (June 1977).

17. Id. at 4-5.

18. Id.

19. The language of the Memorandum of Understanding is broad, yet one can argue that the agreement is limited to only cases under the CAA, the Federal Water Pollution Control Act, and the Safe Drinking Water Act. These three statutes are the only ones mentioned in the Memorandum, and the agreement was signed prior to the enactment of other environmental statutes. Whether EPA surrendered its authority in the Memorandum to represent itself in actions brought under other environmental laws is unclear. Even if EPA is found not to have given up such authority in writing, EPA's practice is always to go through the DOJ when EPA is a party in a federal court. Regardless, the Memorandum of Understanding needs to be renegotiated, updated, and clarified.

20. 15 U.S.C. § 2606(f), ELR STAT. TSCA § 7(f).

21. 15 U.S.C. § 2602(7), ELR STAT. TSCA § 3(7).

22. S. REP. No. 698, 94th Cong., 2d Sess. 21 (1976).

23. H.R. REP. No. 1679, 94th Cong., 2d Sess. 77 (1976), reprinted in 1976 U.S.C.C.A.N. 4539, 4562.

24. Id. at 78.

25. Id.

26. Id.

27. Id.

28. Id.

29. Id.

30. See, e.g., Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 355(e) (1993); Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136d(c), ELR STAT. FIFRA § 6(c) (1993).

31. 21 U.S.C. §§ 301-394.

32. 21 U.S.C. § 355(e).

33. Id.

34. 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA §§ 2-31.

35. 7 U.S.C. § 136d(b)(2), ELR STAT. FIFRA § 6(b)(2).

36. 7 U.S.C. § 136(l), ELR STAT. FIFRA § 2(l).

37. Environmental Defense Fund v. U.S. Environmental Protection Agency, 465 F.2d 528, 540, 2 ELR 20228, 20234-35 (D.C. Cir. 1972). Accord Environmental Defense Fund v. U.S. Environmental Protection Agency, 548 F.2d 998, 1005, 7 ELR 20012, 20014-15 (D.C. Cir. 1976); Environmental Defense Fund v. U.S. Environmental Protection Agency, 510 F.2d 1292, 1297, 5 ELR 20243, 20244 (D.C. Cir. 1975).

38. Environmental Defense Fund, 510 F.2d at 1301, 5 ELR at 20246 (quoting Environmental Defense Fund v. U.S. Environmental Protection Agency, 489 F.2d 1247, 1254, 4 ELR 20031, 20035 (D.C. Cir. 1973)).

39. Environmental Defense Fund, 489 F.2d at 1254, 4 ELR at 20035 (D.C. Cir. 1973).

40. Environmental Defense Fund, 510 F.2d at 1292, 5 ELR at 20243.

41. Environmental Defense Fund, 548 F.2d at 998, 7 ELR at 20012.

42. 15 U.S.C. § 2606(a)(1), ELR STAT. TSCA § 7(a)(1).

43. 15 U.S.C. § 2605(a)(2), ELR STAT. TSCA § 6(a)(2).

44. H.R. REP. No. 1679, 94th Cong., 2d Sess. 78 (1976), reprinted in 1976 U.S.C.C.A.N. 4539, 4562-63.

45. 620 F. Supp. 1404, 16 ELR 20187 (N.D. Ill. 1985).

46. Id. at 1411, 16 ELR at 20190.

47. 5 U.S.C. §§ 500-706, ELR STAT. APA §§ 500-706 (1982).

48. 5 U.S.C. §§ 551-559, ELR STAT. APA §§ 551-559.

49. 5 U.S.C. § 553, ELR STAT. APA § 553.

50. 5 U.S.C. § 553(b), ELR STAT. APA § 553(b).

51. 5 U.S.C. § 554(a), ELR STAT. APA § 554(a).

52. United States v. Commonwealth Edison Co., 620 F. Supp. 1404, 1411, 16 ELR 20187, 20190 (N.D. Ill. 1985).

53. Id. at 1404.

54. United States v. Pacific Hide & Fur Depot, Inc., EPA Docket No. SARA 10-83-0002, No. 83-4052 (D. Idaho 1983) (partial consent decree ordered) (complaint based on alleged improper PCB disposal); United States v. Sugarhouse Realty, Inc., EPA Docket No. TSCA 03-86-0015, No. 85-4829 (E.D. Pa. 1986) (order granting consent decree) (TSCA §§ 7 & 17 complaint based on PCB handling, storage, treatment, or disposal).

55. 15 U.S.C. § 2616, ELR STAT. TSCA § 17. See also sources cited supra n.47.

56. 15 U.S.C. § 2616(a)(1)(C), ELR STAT. TSCA § 17(a)(1)(C).

57. Commonwealth Edison Co., 620 F. Supp. at 1404, 16 ELR at 20187 (N.D. Ill. 1985).

58. Dibenzofurans, often identified with PCBs, are not subject to any TSCA § 6 rules, yet they are considered much more toxic and hazardous than PCBs.

59. 15 U.S.C. § 2606(c), ELR STAT. § 7(c).

60. Commonwealth Edison Co., 620 F. Supp. at 1411, 16 ELR at 20190.

61. Id.

62. Id.

63. 40 C.F.R. § 750.9(a) (1977).

64. Id. pt. 750, app. A. to Subpt. A.

65. 42 Fed. Reg. 24536 (1977); 43 Fed. Reg. 11301 (1978) (codified at 40 C.F.R. § 762).

66. 53 Fed. Reg. 10206 (1988); 55 Fed. Reg. 222 (1990) (codified at 40 C.F.R. § 749).

67. 49 Fed. Reg. 21870 (1984).

68. 15 U.S.C. § 2604(f), ELR STAT. TSCA § 5(f).

69. 15 U.S.C. § 2604(a) & (f), ELR STAT. TSCA § 5(a) & (f).

70. 15 U.S.C. § 2605(a)(1)-(7), ELR STAT. TSCA § 6(a)(1)-(7).

71. 15 U.S.C. § 2604(f)(2), ELR STAT. TSCA § 5(f)(2).

72. Id. at 21, 23 ELR at 20033-34.

73. Id.