United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
DOCKET NO. 16
M. CHEN UNITED STATES DISTRICT JUDGE.
Plaintiffs are a group of nonprofit
public health and environmental organizations that promote
awareness of the risks associated with asbestos in our
environment. This suit against the Environmental Protection
Agency (“EPA”) and its Acting Administrator,
Andrew Wheeler, challenges the EPA's denial of their
petition to initiate rulemaking. Docket No. 1. This action is
brought under the Toxic Substance Control Act
(“TSCA”) which provides under some circumstances
de novo review of the EPA decision. The suit also
asserts a claim under the Administrative Procedure Act
(“APA”). Pending before the Court is the
EPA's motion to dismiss the FAC's APA claim for lack
of subject matter jurisdiction. The EPA's motion
initially did not challenge Plaintiffs' TSCA claim,
although the scope of the claim is now at issue.
enacted the TSCA in 1976 to create a national program for
assessing and managing the risks of chemicals to human health
and the environment. Section 2(b) of the TSCA requires the
following from the EPA: (1) “adequate information
should be developed with respect to the effect of chemical
substances and mixtures on health and the environment”
and (2) “adequate authority should exist to regulate
chemical substances and mixtures which present an
unreasonable risk of injury to health or the
environment.” 15 U.S.C. § 2601(b)(1)-(2). However,
“authority over chemical substances and mixtures should
be exercised in such a manner as not to impede unduly or
create unnecessary economic barriers to technological
innovation while fulfilling the primary purpose of this
chapter to assure that such innovation and commerce in such
chemical substances and mixtures do not present an
unreasonable risk of injury to health or the
environment.” Id. at § 2601(b)(3).
6(a) provides the EPA with authority to regulate substances
that present “an unreasonable risk of injury” to
human health or the environment. 15 U.S.C. § 2605(a).
Section 6(a) also lists examples of chemical lifecycle phases
(e.g., manufacturing, processing, usage, and
disposal, etc.) which the EPA is authorized to regulate.
Id. Moreover, Section 6(a) provides that “[i]f
the [EPA] Administrator determines . . . that the . . . use .
. . of a chemical substance presents an unreasonable risk of
injury to health or the environment, the Administrator shall
by rule” impose one or more authorized restrictions,
which include limiting or banning the manufacture or
distribution of the chemical for a particular use.
8(a)(1) provides that the EPA “shall promulgate
rules” that require each person who manufactures or
processes a chemical substance to submit a report as the
“Administrator may reasonably require.” 15 U.S.C.
§ 2607(a). The EPA is prohibited, however, by Section
8(a)(5)(A) from requiring reporting that is
“unnecessary or duplicative” and must apply the
reporting obligations under Section 8(a) only to those
persons who are likely to have the relevant information.
Id. at § 2607(a)(5)(A)-(C). In 2011, pursuant
to its authority under Section 8(a)(1), the EPA promulgated
the Chemical Data Reporting (“CDR”) rule that
required reporting for all chemicals manufactured or imported at
a site in the amount of 25, 000 pounds or more in a given
reporting year from 2012 onward. See 40 C.F.R.
22, 2016, Congress amended the TSCA with the Frank R.
Lautenberg Chemical Safety for the 21st Century Act
(“LCSA”). The amendment established a new
integrated process under Section 6:
The Administrator shall designate as a high-priority
substance a chemical substance that the Administrator
concludes . . . may present an unreasonable risk of injury to
health or the environment because of a potential hazard and a
potential route of exposure under the conditions of use,
including an unreasonable risk to a potentially exposed or
susceptible subpopulation identified as relevant by the
15 U.S.C. § 2605(b)(1)(B)(i).
6(b)(2)(A) required the EPA to initiate risk evaluations on
ten chemical substances within six months after the enactment
of the LCSA. The EPA designated asbestos as one of the ten
chemicals to undergo risk evaluation. See 81 Federal
Register 91927 (“As amended, the law requires that risk
evaluation be initiated on 10 chemical substances drawn from
the 2014 update of the TSCA Work Plan for Chemical
Assessments”). According to the EPA, that evaluation is
ongoing. After 2016, “any chemical substance that is
the subject of a rule proposed or promulgated under TSCA
[Section 6]” is subject to a 2, 500-pound volume
threshold for reporting. 40 C.F.R. § 711.8(b).
21 contains a citizen-petition process under which the public
can seek to compel the EPA to engage in its rulemaking
authority. 15 U.S.C. § 2620(a). If unsuccessful at the
agency level, Section 21 enables the petitioner to file a
civil action in federal district court for review of the
EPA's determination. The standard of review at the
district court is dependent on the relief sought in the
petitions seeking the issuance of a new rule, Section
21(b)(4)(A) provides, “[i]f the Administrator denies a
petition filed under this section . . . [, ] the petitioner
may commence a civil action in a district court of the United
States to compel the Administrator to initiate a rulemaking
proceeding as requested in the petition.” 15 U.S.C.
§ 2620(b)(4)(A). The standard of review for new-rule
petitions is further prescribed by Section 21(b)(4)(B), which
provides, “[i]n an action under subparagraph (A)
respecting a petition to initiate a proceeding to
issue a rule , the petitioner shall be
provided an opportunity to have such petition considered by
the court in a de novo proceeding.” (emphasis
21 does not offer guidance as to the standard of review for
petitions seeking the amendment or repeal of existing rules.
However, case law analyzing Section 21's legislative
history in this regard is instructive. In Environmental
Defense Fund v. Reilly, the plaintiffs petitioned the
EPA under Section 21 to promulgate rules to prevent the
release of dioxins and furans into the environment. 909 F.2d
1497, 1449 (D.C. Cir. 1990). Specifically, they sought
record-keeping and reporting requirements so they could
monitor results. Id. The EPA denied the petition.
Id. As with Plaintiffs here, the plaintiffs in
Reilly then filed suit in district court seeking
de novo review under Section 21-but they also sought
concurrent relief under the APA. The district court granted
the EPA's motion for summary judgment with respect to the
APA claims reasoning that there was “an inherent
illogic to [plaintiffs'] contention that a petition
denial is simultaneously subject to both de novo and
APA review . . . .” Id. at 1500. The
plaintiffs appealed, but they settled the underlying Section
21 claim with the EPA that remained in the district court.
Id. at 1500-01. Still, the D.C. Circuit decided the
issue of “not whether APA review is available singly in
lieu of Section 21 review, but whether [plaintiffs] are
entitled to both.” Id. at 1505.
Reilly court ultimately held that “Congress
did not intend to authorize simultaneous utilization of two
remedies.” Id. In so doing, the court went
through an analysis of Section 21's legislative history
to determine whether Congress intended to have two channels
of judicial review. The court speculated that “[b]ut
for the presence of Section 21, [plaintiffs] might have
qualified for APA review of EPA's denial of their
rulemaking petition by invoking the presumption of
reviewability . . . .” Id. at 1505. In
distinguishing Section 21 review and APA review, the court
Less hospitable treatment of petitions to amend or repeal is
warranted, then, since “the [agency] already will have
addressed the general subject matter in an existing rule or
order and [its] determination will have been subject to
review under section 19 of th[e] Act.” . . . the
conferees do not intend that [EPA] be subjected to constant
petitions challenging rules or orders for which adequate
judicial review is provided under section 19. Therefore, if
[EPA] denies a petition to amend or repeal an action under
section 4, 5(e), 6, or 8, [Section 21] permits
review of such denial only under the Administrative Procedure
Id. (quoting S.Rep. No. 94-1302, 94th Cong., 2d
Sess. 98 (1976); H.R.Conf.Rep. No. 1679, 94th Cong., 2d Sess.
98 (1976), reprinted in  U.S.Code Cong. &
Admin.News 4583) (emphasis added) (alterations in original).
December 19, 2016, the EPA announced that asbestos would be
one of ten chemicals selected for initial risk evaluations,
as required by the LCSA. FAC ¶¶ 30, 31.
2017, Plaintiffs notified the EPA that a company called
Occidental Chemical Corporation failed to report its asbestos
imports that totaled several hundred tons, which violated its
obligations to the CDR. In response to Plaintiffs'
notice, the EPA penned a letter to Occidental Chemical
Corporation on July 28, 2017, informing it that asbestos
imports were not subject to reporting because such reporting
is not required for “naturally occurring chemical
substances” under 40 C.F.R. section 711.6(a)(3).
Id. ¶ 35. This letter led to Plaintiffs'