A federal court in the District of Columbia has dismissed a challenge filed by environmental groups to EPA’s refusal to ban lead shot and bullets under the Toxic Substances Control Act (TSC A). Ctr. for Biological Diversity v. Jackson, No. 10-2007 (D.D.C. 9/29/11). EPA’s refusal came after three environmental groups filed a petition in August 2010 asking the agency to ban the use of lead in hunting ammunition and fishing tackle. EPA issued its first response to the petition in August 2010, saying that it lacked authority to regulate firearms and ammunition under TSC A. The agency issued a second response in November 2010, refusing to ban lead in fishing equipment on the ground that the ban was not necessary to protect against an unreasonable risk of injury to health or the environment.
Following the second EPA letter, plaintiffs filed their lawsuit, contending in part that EPA’s authority to regulate firearms was set out in TSC A, which directs the agency to regulate potentially harmful chemicals if non-toxic substitutes were available. EPA filed a partial motion to dismiss, arguing that the portion of the lawsuit relating to lead shot and bullets should be dismissed for lack of subject matter jurisdiction because the lawsuit was filed 88 days after the agency issued its letter refusing to bar lead shot.
The agency, joined by the National Rifle Association and others, argued that the first letter, relating to lead shot and bullets, had triggered the 60-day time limit set forth in section 21 of TSC A for challenging the denial of a petition by EPA. Although the court recognized that section 21 does not expressly address the issue, it deferred to EPA’s expertise in interpreting TSC A. The court did not reach the issue of whether TSC A provides authority to regulate lead shot or bullets or plaintiffs’ claims relating to lead in fishing tackle.