A pending petition for rulemaking under the Toxic Substances Control Act (TSCA) could represent the latest test of the scope of TSCA’s citizen petition provisions. Denial of this petition would tee up a precedent-setting court battle addressing citizens’ ability to force EPA to exercise its TSCA section 8 authority to require chemical data reporting. And while the petition on its face is focused on requiring additional information collection, it could have important implications for EPA’s implementation of TSCA’s amended provisions regarding regulation of existing chemicals under section 6.

In its September 25, 2018, petition, the Asbestos Disease Awareness Organization (ADAO) is requesting that EPA amend its Chemical Data Reporting (CDR) rule in order to require greater reporting and disclosure of data on the production, importation and processing of asbestos and asbestos-containing products. The CDR rule, promulgated under TSCA section 8(a) and codified at 40 C.F.R. part 711, requires manufacturers and importers of more than threshold amounts of certain chemical substances to submit reports on the volume imported or manufactured, number of workers exposed, site operations information, downstream uses of the substance and potential for downstream exposure. The rule currently does not require reporting for naturally occurring substances (like asbestos) or for the manufacture or import of a chemical as an impurity, byproduct or part of an article. ADAO’s petition seeks to carve out asbestos from these exclusions, to lower the applicable reporting threshold for asbestos from 2,500 pounds per year to 10 pounds per year, to require reporting for asbestos processors as well as manufacturers and importers and to make all subsequent reports submitted on asbestos under the CDR rule publicly available regardless of any claims of protection for confidential business information.

ADAO submitted its petition pursuant to section 21 of TSCA, which allows citizens to request EPA action under various provisions of the statute, including section 8’s reporting provisions. The law requires EPA to respond to such a petition within 90 days. If EPA grants the petition, it must promptly begin proceedings to carry out the requested action. And if it denies the petition—or fails to respond within the allotted time—the petitioner may file suit in federal district court, where a judge will decide whether to compel EPA to take the requested action. Any such suit must be filed within 60 days after EPA’s denial. In the present case, EPA must respond to ADAO’s petition by December 24, 2018.

A pending case involving EPA’s denial of another petition illustrates the potential breadth of the judicial review afforded by TSCA section 21 where EPA denies a petition. In Food & Water Watch, Inc. v. EPA, a public health group is challenging EPA’s denial of a petition to ban the use of drinking water fluoridation chemicals under section 6 of TSCA. That case, filed in the Northern District of California, is the first citizens’ petition lawsuit filed after Congress amended TSCA in 2016. The parties have sparred over the correct interpretation of section 21, particularly with respect to the scope of judicial review provided. Section 21(b)(4)(B) states that where EPA denies a petition for issuance of a new rule, the court will consider that petition in a “de novo proceeding.” The parties disagreed as to the nature of that proceeding, including what information the court may consider. EPA argued that the court’s review in such cases should be limited to de novo consideration (i.e., without deference to EPA’s conclusions) of the administrative record before the agency, as is provided by the Administrative Procedure Act (APA) in some cases. But the court agreed with the petitioners that because TSCA provides a de novo proceeding rather than de novo review, a section 21 challenge involving a petition for a new rule is not limited to the administrative record. As a result, the court opened the door for these cases to include discovery, expert testimony and submission of scientific studies that were not presented to EPA in the underlying citizens’ petition, although the court also recognized that there will necessarily be some limitations on the additional evidence that petitioners may develop. The parties are currently engaged in discovery, with expert discovery closing in March 2019 and a bench trial set for August 2019.

If EPA denies ADAO’s petition to amend the CDR rule, TSCA’s citizen petition provisions may be put to the test again, with the potential for new precedent-setting rulings on important interpretive issues. One major question will be whether denial of ADAO’s petition is subject to the same “de novo proceeding” as in Food & Water Watch. Section 21(b)(4)(B) only provides for such a proceeding in cases involving “a petition to initiate a proceeding to issue a rule” under certain TSCA provisions. But ADAO’s petition seeks the amendment of a rule, not the issuance of a new one. And in Food & Water Watch, the court stated that petitions to amend or repeal a prior rule are subject to more limited “APA-like” review rather than the special “de novo” proceeding provided in section 21(b)(4)(B). ADAO may attempt to dispute this interpretation in the hopes of broadening the scope of the court’s inquiry and minimizing any deference to EPA’s conclusions.

Further, if ADAO is successful in extending the special review provisions of section 21(b)(4)(B) to its petition, it could raise additional questions about what standard of review should apply in the case. While most challenges to agency action under TSCA are governed by the APA’s standard of review, in cases governed by section 21(b)(4)(B), a different standard governs. No court has ever directly addressed how that standard of review applies to a petition for action under section 8(a) of TSCA. But based on their text alone, they appear to be in conflict.

Under section 21, a petition for rulemaking must “set forth the facts which it is claimed establish that it is necessary to issue, amend, or repeal” a rule. TSCA § 21(b)(1). Presumably this refers to the statutory criteria governing action under section 8. But once the petition is denied, the standard of review that applies in a de novo proceeding is stated differently: the petitioner must “demonstrate[] to the satisfaction of the court by a preponderance of the evidence that … the chemical substance or mixture to be subject to such rule or order presents an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation, under the conditions of use.” TSCA § 21(b)(4)(B)(ii). In other words, if the petitioner can show the chemical presents an unreasonable risk, the court can force EPA to take action.

While this standard of review aligns with the criteria for EPA to regulate existing chemicals under section 6, it appears to be inconsistent with section 8(a), which generally grants EPA the discretion to require “such reports[] as the Administrator may reasonably require” without reference to the level of risk from any particular chemical. TSCA does not command EPA to require reporting for every chemical that presents an unreasonable risk. It is also inconsistent with section 14 (ADAO’s claimed authority for overriding claims of confidential business information), which, as relevant, only provides exemptions to its confidentiality protections where disclosure is “necessary to protect health or the environment” against an unreasonable risk or is “relevant” to a TSCA proceeding. Put simply, there appears to be a disconnect between the standard governing EPA’s implementation of these provisions and the standard by which a court in a special de novo proceeding may force EPA to act under these provisions.

Depending on how a court resolves this conflict, any litigation over ADAO’s petition could have important implications for EPA’s ongoing risk evaluation for asbestos. If the court holds that section 21(b)(4)(B) does govern its review of ADAO’s petition, then it might proceed to determine at trial whether asbestos presents an “unreasonable risk of injury to health or the environment” under the conditions of use. But this is precisely the question that EPA is currently attempting to answer in its still-pending risk evaluation for asbestos under section 6, which is not due until at least December 2019. The result could be a bizarre scenario in which there are two parallel proceedings—one before EPA based on information developed through notice-and-comment rulemaking, and another before a district court judge in a “de novo proceeding” based on evidence developed by the parties through discovery and expert testimony—potentially reaching separate conclusions on the risks of asbestos under various conditions of use. Indeed, under that scenario it’s possible the court could rule on the “unreasonable risk” question before EPA’s statutory deadlines for conducting the risk evaluation have even expired, creating an end run around TSCA’s carefully designed regulatory framework.

Of course, this just one potential reading of section 21, and the court’s decision in Food & Water Watch indicates that ADAO’s petition would most likely be the subject of a more limited APA-like review that better harmonizes TSCA’s various provisions. But in light of the significant issues involved, industries affected by TSCA should be closely watching the proceedings involving ADAO’s petition in 2019.