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NATURAL RESOURCES DEFENSE COUNCIL v. UNITED STATES

August 28, 1984

NATURAL RESOURCES DEFENSE COUNCIL, INC., and INDUSTRIAL UNION DEPARTMENT, AMERICAN FEDERATION OF LABOR - COUNCIL OF INDUSTRIAL ORGANIZATIONS, Plaintiffs, against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, WILLIAM D. RUCKELSHAUS, as Administrator, U.S. Environmental Protection Agency, and JOHN A. MOORE, as Assistant Administrator for Pesticides and Toxic Substances, U.S. Environmental Protection Agency, Defendants; THE CHEMICAL MANUFACTURERS ASSOCIATION, Intervenor-Defendant, and THE AMERICAN PETROLEUM INSTITUTE, Intervenor-Defendant.


The opinion of the court was delivered by: DUFFY

OPINION & ORDER

KEVIN THOMAS DUFFY,D.J.:

 Defendants, the United States Environmental Protection Agency and certain Agency officials (collectively "EPA") move to dismiss or in the alternative for summary judgment dismissing plaintiffs' complaint in this action. Plaintiffs Natural Resources Defense Council, Inc. and the Industrial Union Department of the American Federation of Labor - Council of Industrial Organizations (collectively "NRDC") cross-move for partial summary judgment on the issue of liability.Additionally, the intervenor-defendants, the American Petroleum Institute ("API") and the Chemical Manufacturers Association ("CMA"), have provided memoranda in support of EPA's motion to dismiss or for summary judgment. For the reasons that follow, EPA's motions are denied in part and granted in part, and plaintiffs' motion is granted in part and denied in part.

 BACKGROUND

 Plaintiffs brought this action seeking an order requiring the EPA's compliance with provisions of the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq. ("TSCA" or "the Act"). TSCA was enacted in response to what Congress perceived as the unreasonable risks associated with the increasing marketing of chemical products whose potential toxicity was as yet untested. See U.S. Code Cong. & Ad. News 4493, 94th Cong., 2d Sess. (1976).

 Presently, the Nations' population and environment provide testing grounds for determining the effects a toxic substance has on human or environmental health. The authority contemplated by the Toxic Substances Control Act would establish requirements for testing substances believed to pose an unreasonable risk before they are dispersed by various means throughout the environment and are difficult, if not impossible, to control.

 H. Rep. No. 94-41, Toxic Substances Control Act, Hearing Before the Subcommittee on Consumer Protection and Finance of the Committee on Interstate and Foreign Commerce, 94th Cong., 1st Sess. 213 (1975). TSCA, 15 U.S.C. § 2603 provides for EPA issuance of rules requiring testing of chemicals which may present unreasonable risks of injury to human health or the environment.The testing required by such rules is to be carried out and financed by the manufacturers and/or processors of the chemical substances.See TSCA, 15 U.S.C. § 2603(b)(3). In section 2603(e) of the Act, Congress established an expert panel of government scientists, known as the "Interagency Testing Committee" ("ITC"). ITC is directed to select and recommend to EPA a list of those chemicals whose potential risks to health and the environment are determined to warrant "priority consideration by the agency for the promulgation of a rule. . . ." 15 U.S.C. § 2603(e)(1)(A). Thereafter the EPA is required within twelve months of the date on which the substances are first designated to "either initiate a rulemaking proceeding under subsection (a) . . . or if such a proceeding is not initiated within such period, publish in the Federal Register the [EPA] Administrator's reason for not initiating such a proceeding." 15 U.S.C. § 2603(e)(1)(B).

 A test rule "shall" be promulgated if EPA finds that:

 (A)(i) the manufacture, distribution in commerce, processing, use, or disposal of a chemical substance or mixture . . . may present an unreasonable risk of injury to health or the environment,

 (ii) there are insufficient data and experience upon which the effects of such manufacture . . . on health or the environment can reasonably be determined or predicted, and

 (iii) testing of such substance or mixture with respect to such effects is necessary to develop such data; or

 (B)(i) a chemical substance or mixture is or will be produced in substantial quantities, and (I) it enters or may reasonably be anticipated to enter the environment in substantial quantities or (II) there is or may be significant or substantial human exposure to such substance or mixture.

 (ii) there are insufficient data and experience upon which the effects of the manufacture . . . on health or the environment can reasonably be determined or predicted, and

 (iii) testing of such substance or mixture with respect to such effects is necessary to develop such data.

 15 U.S.C. § 2603(a)(1).

 The final test rule must identify, inter alia, the (chemicals) to be tested, the specific effects for which testing must be done, *fn1" the test standards or protocols, and the deadlines for test completion and submission of data. See id. § 2603(b)(1). To formulate a final rule, EPA is required first to publish proposed rules with these characteristics, soliciting public commentary. See Administrative Procedure Act ("APA"), 5 U.S.C. § 553 (notice and comment provision); see also 15 U.S.C. § 2603(b)(5).

 The central issue in this case is whether EPA's implementation of TSCA with respect to sixteen ITC - designated chemicals satisfies this statutory mandate to either initiate rulemaking or to publish EPA's reasons for not initiating such proceedings.Plaintiffs' sixteen - claim complaint divides into four categories: (1) that EPA violated the TSCA by accepting negotiated voluntary testing programs instead of proposing formal test rules (Claims One to Four); (2) that EPA unlawfully delayed test rulemaking by issuing an Advance Notice of Proposed Rulemaking ("ANPR") for one chemical category instead of proposing a test rule (Claim Five); (3) that EPA violated TSCA by proposing test rules in two phases with the first phase omitting proposed testing standards and deadlines (Claims Six to Eleven), and (4) that EPA violated TSCA by unreasonably delaying final promulgation of test rules for certain ITC - designated chemical substances (Claims Twelve to Sixteen).I will address the parties' motions in the context of each of the four separate categories.

 DISCUSSION

 I. Negotiated Voluntary Testing Agreements

 A. Description

 In late 1981 and early 1982, EPA announced in the Federal Register that it would consider accepting voluntary testing programs in certain circumstances. These programs would be negotiated and conducted by manufacturers or processors of ITC designated chemical substances in lieu of initiating a rulemaking proceeding. See 47 Fed. Reg. 335 (Jan. 5, 1982); 46 Fed. Reg. 53775 (Oct. 30, 1981). EPA asserts that it adopted this new policy based upon the belief that such agreements would provide the required health and environmental effect test data in an expeditious manner. See Affidavit of Don R. Clay (EPA Office Director for the Office of Toxic Substances) P27 at 12.

 According to EPA, after ITC designates priority lists of chemical substances in the Federal Register, EPA conducts two public meetings scheduled at ten and sixteen weeks after the ITC designation. Id. PP16, 18 at 8, 9. At the second meeting, EPA announces its preliminary decision whether to require testing. If EPA determines that no testing is necessary, it publishes a Federal Register notice describing its reasoning. If it determines that testing is necessary, EPA begins work on atest rule and "simultaneously [invites] industry initiation of negotiations for the purpose of developing a negotiated testing program." Id. P19 at 9.

 By week twenty-four, EPA requires that its scientists and the industry representatives have reached preliminary agreement on a testing program. Id. P21 at 10. Between weeks sixteen and twenty-four EPA apparently holds informal meetings with industry to attempt to reach this negotiated test agreement. Id. P20 at 10. EPA reviews the manufacturers' study plans which include test standards and schedules for submission of test data. Acceptable proposals are published and the ensuing comments are reviewed before publication of EPA's final decision to adopt a negotiated voluntary testing agreement.Id. PP22-26 at 10-12.

 Plaintiff's first four claims are based on ITC's designation, between November 1980 and May 1982, of four chemicals warranting priority rulemaking consideration and review by EPA. *fn2" In the two to four years since their designations, EPA has not initiated rulemaking proceedings; rather, within twelve months of each of the designations EPA accepted or tentatively accepted voluntary testing programs negotiated with industry. *fn3"

 B. Jurisdictional Defenses

 Plaintiffs brought this action pursuant to 15 U.S.C. § 2619(a)(2) which provides that "any person may commence a civil action . . . against the [EPA] Administrator to compel the Administrator to perform any duty under this Act which is not discretionary." EPA contends that it has no mandatory duty to issue test rules and therefore its discretionary acts are not subject to review by a citizen-suit civil action.

 "While it is intended that a recommendation of the [ITC] be given great weight by the Administrator, it should be emphasized that the decision to require testing rests with the Administrator." H. R. Conf. Rep. No. 94-1679, 94th Cong., 2d Sess. 62 (1976), reprinted in 1976 U.S. Code Cong. & Ad. News 4539, 4547.It is the province of EPA to evaluate the criteria of section 2603(a)(1)(A) or (a)(1)(B) to determine whether testing is appropriate.Section 2603(e)(1)(B) provides the agency with a choice of either initiating a rulemaking proceeding or publishing its reasons for not doing so. It is evident, however, that the Administrator's duty to choose either to initiate rulemaking proceedings or to publish its reasons for not doing so is a mandatory choice that it must make. *fn4" Thus, plaintiffs may invoke section 2619(a)(2) to review whether EPA carried out this nondiscretionary act. *fn5"

 C. Negotiated Testing Programs and TSCA

 At the outset, EPA notes that with respect to each of the four chemicals in Claims One through Four of plaintiffs' complaint there have been no formal findings that the threshold requirements for initiating rulemaking proceedings have been met. For example, there has been no express finding that there is insufficient data on these chemicals presenting an unreasonable risk of injury to public health or to the environment. See section 2603(a). EPA asserts that it is under no obligation to make such determinations. In addition, EPA contends that even if the standards were applied to plaintiffs' first four claims, the facts demonstrate that "testing . . . is [not] necessary to develop [data revealing] the effects . . . of such substance . . . on health or on the environment. . . ." 15 U.S.C. § 2603(a)-(1)(A)(ii), (iii). Because EPA has arranged to obtain testing data by the negotiated voluntary agreements, defendant maintains that testing is no longer necessary to develop such data.

 Although it does not appear that publication of findings concerning the threshold determinations is obligatory, I find for the reasons that follow that EPA's program of negotiating voluntary testing agreements subverts the statutory scheme.

 Both in the legislative history of TSCA and on the face of the statute, Congress has evinced its intention that chemicals on which there is insufficient data will be tested pursuant to formal rulemaking.See Legislative History of the Toxic Substances Control Act, House Committee of Interstate in Foreign Commerce, 94th Cong., 1st Sess. 158, 162-63, 166, 171-73, 254, 410, 424, 668, 674, 722-23, 747 (1976) ("TSCA Legislative History"). For example, in the Legislative History the House Report summarizes:

 Briefly, the bill will

 -- Require manufacturers and processors of potentially harmful substances and mixtures to test the substances and mixtures, as required by rules issued by the Administrator of the Environmental Protection Agency, so that ...


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