Fluoride Case Ruling May Open Door To More TSCA Petitions, Attorneys Say

January 4, 2018

The recent federal court ruling allowing environmentalists to sue EPA for rejecting their petition seeking Toxic Substances Control Act (TSCA) rules on fluoridation could open the door to new citizen petitions to the agency under section 21 of the law seeking rules on other substances.

“The fluoridation case may signal to environmental groups that the courts may be receptive to granting section 21 petitions or at a minimum that EPA’s reasons for a denial will be closely scrutinized,” Herb Estreicher, an attorney and chemist with the law firm of Keller and Heckman, tells Inside EPA.

“As a result, we may see more section 21 petitions from environmental groups and a greater willingness to challenge an EPA denial in the courts.”

An environmentalist attorney appears to echo Estreicher's view. “The judge squarely rejected EPA’s approach and underscored the important role of section 21 under the law. I think the decision will be very helpful in future section 21 cases,” the attorney tells Inside EPA.

At the same time, several attorneys say they expect that the decision will have a limited effect on environmentalists' ongoing challenges to framework rules implementing TSCA reform, where, like the fluoride case, the court is weighing the question of which uses EPA must consider when assessing chemicals for possible regulation. They say the ruling in the fluoride case will have little bearing in the framework rules cases because they hinge on different sections of the statute.

“I’m not concerned that the decision will somehow undermine the position in the framework rule challenges that the law requires risk evaluations to address all conditions of use. That issue was not before the court and wasn’t decided,” the environmentalist lawyer says.

Late last month, Judge Edward Chen of the U.S. District Court for the Northern District of California denied EPA's request to dismiss Food & Water Watch Inc., et al, v. EPA, the suit challenging it's petition's denial.

Chen ruled that the new TSCA law allows citizens to petition EPA under TSCA section 21 to regulate single uses of substances, a stance at odds with the agency's position in this case that petitioners must address all uses of a substance when bringing a petition to the agency.

This argument, included in the denial issued early in the Trump administration, is consistent with the Obama EPA interpretation that the agency must evaluate all conditions of use when evaluating chemicals' risks.

But in overruling EPA, Chen's decision in the fluoride case appears to support the agency's framework rules that grant EPA discretion to determine which uses to evaluate for possible regulation under section 6 authority.

'Fairly Scathing Rebuke'

Since the ruling, some observers have indicated that Chen's approach could have bearing in environmentalists' pending challenge to the framework rules.

In those cases, a key question is what “uses” EPA must consider when evaluating chemicals for possible regulation.

While the Obama EPA's proposed section 6 rules required the agency to assess all uses, the Trump EPA's final version grants EPA discretion to determine which uses to consider, though agency officials have largely ruled out assessing legacy uses as well as uses regulated by other agencies, such as the Occupational Safety and Health Administration.

The law firm Bergeson & Campbell describes the ruling as a “fairly scathing rebuke of EPA’s legal positions,” in a Dec. 22 blog post, adding that it “essentially rejected EPA’s interpretation that a citizen petition must evaluate all conditions of use of a chemical substance in a TSCA Section 6(b) risk evaluation.”

The blog also notes “interesting issues” the ruling raises for the environmentalists' challenges to the TSCA framework rules. Those suits “challenge EPA’s view that fewer than all conditions of use must be considered in a risk evaluation, the very position the court in Food & Water Watch rejected for purposes of Section 21 petitions challenging EPA’s interpretation of a citizen’s legal burden under TSCA Section 6(a). Given that the judicial challenge to the risk evaluation final rule is being heard in the U.S. Court of Appeals for the Ninth Circuit, this district court decision is particularly relevant.”

But others argue the section 21 case will have little significance in environmentalists' challenges to EPA's framework rules, issued under section 6. Several attorneys say they consider Chen's ruling specific to TSCA section 21 citizens' petitions.

They questioned whether the ruling could be applied more broadly to EPA's risk evaluation and management responsibilities contained in section 6, even though environmentalists' challenges to the framework rules will be heard in the same Ninth Circuit.

“I think the decision is cogent and persuasive on the statutory construction issues it addresses, but I question whether it will have much collateral effect on cases not involving a Section 21 petition,” one attorney familiar with the fluoride suit tells Inside EPA. “Perhaps it may provide some modest support for EPA’s construction that EPA may focus a section 6(b) risk assessment on, or a manufacturer may request such a risk assessment for, only those conditions of use that are of particular interest or concern.”

And Estreicher says the decision “provides Judge Chen's interpretation of ‘conditions of use’ but the 9th Circuit will make its own decision.”

No Conflict

Michael Connett, the plaintiffs attorney in Food & Water Watch suggested even before the judge ruled that the case would not be at cross purposes with other environmental groups who have challenged the Trump EPA's final framework rules.

There isn't “any conflict between the position taken by the environmentalists (i.e., that EPA must consider all uses when conducting risk evaluations under 6(b)), and our position here that citizen petitioners need only address one use,” Connett says now.

Two of the environmental groups suing EPA over the framework rules, the Natural Resources Defense Council and Safer Chemicals Healthy Families, filed an amici brief in the fluoride case, joining plaintiffs in opposing EPA's motion to dismiss the suit.

Connett points to the amici arguments that “if EPA determines that a chemical does not present an unreasonable risk under the conditions of use, then section 18 of TSCA limits the ability of states to regulate or restrict any use of that chemical. It is imperative, therefore, that EPA consider all conditions of use as a finding of no risk will impact the right of state to regulate all uses. By stark contrast, any ruling by the EPA (or a district court) on a specific use identified in a citizen petition will have NO effect whatsoever on the rights of states to regulate uses not at issue in the petition.”

Connett adds that the state pre-emption issue isn't the only reason his clients' suit harmonizes with environmentalists' suits on the rules.

Similarly, the environmentalist attorney says that the fluoride case, “EPA’s interpretation of 'conditions of use' under section 6(b) was not the basis for the court’s reading of section 21, nor was it endorsed by the court. I think the main relevance of that interpretation in the decision was to highlight the contradictions in EPA’s arguments and to explain why its reading of section 21 was not entitled to deference.” -- Maria Hegstad (mhegstad@iwpnews.com)

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