Beveridge & Diamond
 

Citizens’ Petitions Under TSCA Seek to Change EPA’s Agenda

Beveridge & Diamond, P.C., April 28, 2009

Like some other environmental statutes, the Toxic Substances Control Act (“TSCA”) contains a citizens’ petition provision requiring EPA to respond to requests that it conduct rulemaking or take other action under TSCA.  Recently, the Sierra Club and other non-governmental organizations (“NGOs”) have used this provision to attempt to force EPA to alter its regulatory priorities so as to address issues of interest to the particular NGOs.  The petitioners have had varying degrees of success, with EPA directly or in litigation.  This article provides background on the provision, section 21 of TSCA, and then reviews how several citizens’ petitions have fared. 

TSCA Section 21:   An Overview

Congress included a citizens’ petition provision in TSCA specifically so that EPA might be prodded into action:

The responsiveness of government is a critical concern and the citizens’ petition provision will help to protect against lax enforcement.[1]

The provision was modeled on that in the Consumer Product Safety Act (“CPSA”), passed in 1972.[2]  Ironically, five years later, Congress repealed the citizens’ petition provision in the CPSA.[3]   

 Under section 21, any person may petition the Administrator to initiate a proceeding for the issuance, amendment, or repeal of a rule under section 4, 6, or 8 or an order under section 5(e) or 6(b)(2).  A petition filed under section 21 must be filed with EPA Headquarters and must include the facts supporting EPA action under one of the applicable sections of TSCA.[4]  EPA must either grant or deny the petition within 90 days of the filing of the petition.[5]  If EPA grants the petition, EPA must promptly commence a proceeding under the appropriate section of TSCA.[6]  If EPA instead denies the petition, EPA must publish its reasons for denying the petition in the Federal Register.[7]

A petitioner may file an action in a district court if EPA either denies a petition or EPA fails to either grant or deny a petition within 90 days of the filing of the petition.[8]  A court must order EPA to initiate the action requested by the petitioner if the petitioner demonstrates by a preponderance of the evidence the following elements.  For a petition for a rule under section 4 or an order under section 5, the petitioner must show that: (I) information available to EPA “is insufficient to permit a reasoned evaluation of the health and environmental effects of the chemical substance” in question, and (II) without such information the substance “may present an unreasonable risk to health or the environment” or the substance is or will be produced in substantial quantities and enters or may be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure to the substance.[9] 

For a petition brought to compel the issuance of a rule under section 6 or 8, or an order under section 6(b)(2), a petitioner must prove that there is a reasonable basis for concluding that a rule or order is necessary to protect health or the environment against an unreasonable risk of injury to health or the environment.[10]  A court may allow EPA to defer issuance of a rule or order sought by a petitioner if a court makes two findings:  the extent of the risk to health or the environment alleged by the petitioner is less than the extent of the risks which EPA is addressing under TSCA, and EPA has insufficient resources to take the action sought by the petitioner.[11]   A court may award costs and attorneys fees if it determines that such an award is appropriate.[12] 

Recent Petitions Brought Under Section 21

Lead in Toy Jewelry

In 2006, the Sierra Club submitted a petition requesting EPA to take various actions under TSCA related to lead in toy jewelry.  Specifically, it petitioned EPA to require reporting of data on lead in toy jewelry under section 8, to submit a report to the Consumer Product Safety Commission (“CPSC”) under section 9, to issue a significant new use rule under section 5(a), and to issue quality control orders under section 6(b).[13]  EPA denied the requests for actions under sections 5(a) and 9 for the simple reason that under section 21, a petition cannot request that EPA act under sections 5(a) and 9.[14]  EPA denied the remaining requests for action under sections 6(b) and 8(d).[15]   

The Sierra Club and Improving Kids' Environment filed a lawsuit under the judicial review provision of section 21 challenging EPA's denial of the petition.[16]  The parties reached a settlement in which EPA agreed to submit a letter to the CPSC stating that EPA had reviewed information that raises questions about the adequacy of quality control measures by companies importing and/or distributing children's jewelry.[17]  EPA also agreed to send letters to companies informing them of the potential lead risks from consumer products and of their possible obligations under the Consumer Product Safety Act and under TSCA.  Ultimately, EPA issued a final rule under section 8(d) requiring manufacturers of consumer products intended for use by children who also manufacture lead or lead compounds to report certain health and safety data to EPA.[18] 

Pursuant to the settlement agreement, EPA sent letters to 120 companies.[19]  Subsequently, the Sierra Club sent its own letters to 10 companies notifying them of the Sierra Club's intent to sue under section 20 of TSCA (citizens’ civil actions) if the companies did not comply with section 8(e) reporting regarding lead and lead compounds in consumer products used by children.[20]  Subsequently, some but not all of them made submissions under section 8(e).  There is no indication that the Sierra Club actually did file suit against any of those who received letters.

The Sierra Club's use of section 21 to address the presence of lead in children's toys became largely moot with the passage of the Consumer Product Safety Improvement Act (“CPSIA”), which set new limits on the amount of lead that a children's product may contain.[21]  Since passage of the CPSIA, EPA has shown little interest in the lead-in-products issue.

Nonylphenol Ethoxylates

On June 6, 2007, a number of organizations, including the Sierra Club, the Pacific Coast Federation of Fishermen's Associations, and unite here, submitted a section 21 petition requesting EPA to require studies of nonylphenol ethoxylates (“NPEs”) and nonylphenol (“NP”) under section 4, to require labeling of products containing NP and NPEs under section 6, and to limit the use of NP and NPEs under section 6.[22]  NPEs are widely used in industrial and residential laundry detergent.  EPA granted the petition in part and denied it in part.  EPA granted the petitioners' request to issue a rule under section 4 for chronic aquatic toxicity testing for NPEs to the extent of agreeing to issue an advance notice of proposed rulemaking (“ANPR”).[23]  EPA has not yet published the ANPR.

EPA denied the petitioners' remaining six requests for testing under section 4.  In addition, EPA denied the request to impose controls on the use of NP and NPEs under section 6.[24]  On October 24, 2007, the petitioners filed a lawsuit challenging EPA's denial of the petition.[25]  According to the Sierra Club website, this case is in court-ordered mediation.[26]

Air Fresheners

On September 19, 2007, the Sierra Club, the National Center for Healthy Housing, the Alliance for Healthy Homes, and the Natural Resources Defense Council (“NRDC”) submitted a petition requesting EPA to take various actions under TSCA with respect to air fresheners.[27] NRDC had issued a report earlier that year about the presence of phthalates and other harmful chemicals in some air fresheners.[28]  EPA denied all of the petitioners’ requests.[29]  EPA denied the request to call-in allegations of adverse reactions to air fresheners, explaining that a call-in under section 8(c) is not accomplished through a rule and therefore cannot be the subject of a section 21 petition.[30]  EPA denied the remaining requests for action under sections 4, 6, and 8(d).[31]   

After EPA's denial of the petition, three of the four petitioners filed a lawsuit against EPA under the judicial review provisions of section 21.[32]  On December 12, 2008, the plaintiffs voluntarily dismissed the case through a filing stating that “the parties have resolved the dispute in this litigation through negotiations,” but without further explanation.[33] [m1] 

Formaldehyde Emissions from Composite Wood Products

On March 24, 2008, EPA received a petition from several nonprofit organizations (including the Sierra Club) and individuals which asked EPA to use its section 6(a) authority to adopt the California Air Resources Board (“CARB”) standard for formaldehyde emissions from composite wood products.[34]  EPA denied the specific relief requested by the petition, as EPA declined to adopt a nationwide standard based on the CARB standard.[35]  EPA concluded that the petitioners had failed to present facts necessary to show that a rule was necessary under section 6(a).  However, EPA announced its intention to initiate rulemaking to determine what steps would be necessary to protect against any risks from formaldehyde emissions from wood products.  EPA explained in its November 2008 regulatory plan:

OPPTS has responded to the [section 21] petition and has initiated the development of an advanced notice of proposed rule-making (ANPRM) to investigate whether and what type of regulatory or other action might be appropriate to protect against risks posed by formaldehyde emitted from pressed wood products.  OPPTS is working to publish the ANPR and plans to hold five stakeholder meetings to solicit comments by the end of 2008.  OPPTS is also working with ORD to develop a hazard characterization for formaldehyde and to initiate peer review early in 2009.  In addition, OPPTS has embarked on a study of substitutes to formaldehyde used in pressed wood, and plans to initiate an industry survey to better understand the use of formaldehyde within the pressed wood market.  OPPTS plans to determine the appropriate course of regulatory action in 2009 based on the ANPRM and supporting work.[36] 

EPA published the ANPR on December 3, 2008.[37]  Shortly thereafter, it announced it was launching a field survey.[38]  In light of this activity, no lawsuit has been filed over EPA’s denial of the petition. 

Natural Rubber Latex Adhesives

An informative contrast to the Sierra Club petitions involves natural rubber latex adhesives.  On April 25, 2008, EPA received a petition from Michael J. Dochniak[39] asking EPA to establish regulations under TSCA to prohibit the use of natural rubber latex adhesives having a total protein content greater than 200 micrograms per dry weight of latex.[40]  EPA denied the petition on the grounds that the petition did not include facts establishing that the adhesives pose an unreasonable risk, that banning the adhesives would reduce the incidence of latex allergies, and that banning the use of the adhesives would be the least burdensome way to protect against any risk.[41] 

The petitioner does not appear to be affiliated with any organization, and he did not file a lawsuit challenging EPA’s denial of his petition.  By contrast, organizations such as the Sierra Club have used their greater resources to follow up their petitions by filing lawsuits under section 21.  These organizations may have filed the petitions expecting EPA to deny most of their requests, but hoping to use subsequent litigation to reach a favorable settlement with EPA.  As Michael J. Dochniak’s petition shows, simply filing a section 21 petition is unlikely to change EPA’s priorities for implementing TSCA.

Assessment

NGOs have been fairly successful at using section 21 petitions and lawsuits to force EPA to take action under TSCA.  The petitions themselves have achieved some results, even though the resulting EPA action has not necessarily been the action requested in the petitions, and the follow-on litigation has also produced results favorable to the NGOs.

These petitions have come at a cost to EPA, both in considering and responding to the petitions themselves, and in dealing with any resulting litigation.  More significant may be the programmatic actions EPA commits to undertake in response to the petitions and lawsuits.  These actions have resource costs of their own, and they divert administrative resources from the agenda EPA has set for itself.

These section 21 petitions were all filed during the Bush Administration, and one can ask whether such petitions will continue during the Obama Administration.  Despite the change in administrations, NGOs will probably continue to file petitions.  EPA rarely has precisely the same agenda as advocacy groups and, even when EPA does have the same goals as NGOs, EPA rarely acts as quickly as NGOs would prefer.  Thus, the recent trend of filing a petition under section 21, and then filing a lawsuit challenging EPA's denial of the petition, may well continue.


[1] S. Rep. No. 94-698 at 13 (1976), reprinted in H. Comm. on Interstate and Foreign Commerce, Legislative History of the Toxic Substances Control Act at 169 (1976).

[2] Id. at 12, Legis. Hist. at 168, referring to Pub. L. 92-753 (1972), § 10, 86 Stat. 1217.

[3] Consumer Product Safety Amendments of 1981, § 1210, Title XII, Subtitle A of the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35 (1981), 95 Stat. 721.

[4] TSCA § 21(b)(1), 15 U.S.C. § 2620(b)(1).

[5] TSCA § 21(b)(3), 15 U.S.C. § 2620(b)(3).

[6] TSCA § 21(b)(3), 15 U.S.C. § 2620(b)(3).

[7] TSCA § 21(b)(3), 15 U.S.C. § 2620(b)(3).

[8] TSCA § 21(b)(4)(A), 15 U.S.C. § 2620(b)(4)(A).  Such an action must be filed within 60 days of EPA's denial of the petition, or within 60 days after the expiration of the 90 day period in which EPA failed to either grant or deny the petition. 

[9] TSCA § 21(b)(4)(B)(i), 15 U.S.C. § 2620(b)(4)(B)(i).

[10] TSCA § 21(b)(4)(B)(ii), 15 U.S.C. § 2620(b)(4)(B)(ii).

[11] TSCA § 21(b)(4)(B), 15 U.S.C. § 2620(b)(4)(B).

[12] TSCA § 21(b)(4)(C), 15 U.S.C. § 2620(b)(4)(C).

[13] EPA, TSCA Section 21 Petition; Notice of Receipt, 71 Fed. Reg. 30,921 (May 31, 2006). 

[14] EPA, TSCA Section 21 Petition; Response to Citizen's Petition, 71 Fed. Reg. 42,640 (July 27, 2006); see also TSCA §21(a), 15 U.S.C. § 2620(a). 

[15] 71 Fed. Reg. 42,640, 42,641. 

[16] See Sierra Club v. Johnson, Case No. 3:06-cv-5641-PJH (N.D. Cal. filed Sept. 14, 2006), available at http://www.sierraclub.org/environmentallaw/lawsuits/0322.asp.

[17] See Settlement Agreement, April 13, 2007, Sierra Club v. Johnson, Case No. 3:06-cv-5641-PJH (N.D. Cal. filed Sept. 14, 2006), available at http://www.sierraclub.org/environmentallaw/lawsuits/0322.asp. 

[18] See EPA, Health and Safety Data Reporting; Addition of Certain Chemicals, 73 Fed. Reg. 5,109 (Jan. 29, 2008); codified at 40 C.F.R. § 716.120.  Only four submissions were made in response to that section 8(d) rule.  See Docket No. EPA-HQ-OPPT-2007-0487 at www.regulations.gov.

[19] For additional information on EPA’s actions, see http://www.epa.gov/
lead/pubs/toyjewelry.htm
.

[20] See Sierra Club, Press Release, Sierra Club Takes the Next Step in Protecting Kids from Lead (July 25, 2007), available at http://www.sierraclub.org/environmentallaw/lawsuits/docs/
scjulyleadpr.pdf

[21] See Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, 122 Stat. 3016 (2008).

[22] EPA, TSCA Section 21 Petition on Nonylphenol and Nonylphenol Ethoxylates; Notice of Receipt, 72 Fed. Reg. 37,530 (July 10, 2007). 

[23] EPA, TSCA Section 21 Petition on Nonylphenol and Nonylphenol Ethoxylates; Response to Citizens' Petition, 72 Fed. Reg. 50,954 (Sept. 5, 2007).

[24] Id. at 50,958-59. 

[25] Sierra Club v. Johnson, Case No. 3:07-cv-05435-MMC (N.D. Cal. filed Oct. 24, 2007)

[26] See Sierra Club, Toxics: Laundry, available at http://www.sierraclub.org/toxics/laundry/

[27] EPA, Air Fresheners; TSCA Section 21 Petition; Notice of Receipt, 72 Fed. Reg.  60,016 (Oct. 23, 2007).  The Federal Register notice says both that the organizations petitioned EPA on September 19 and on September 20.  The notice confuses the date on which the petitioners mailed the petition, September 19, with the date on which EPA received the petition, September 20.  See Letter from Charles M. Auer, EPA to Ed Hopkins, Sierra Club, et al. (Oct. 1, 2007), Document ID EPA-HQ-OPPT- 2007-1016-003, available at www.regulations.gov.

[28] Alison Cohen et al., NRDC, Clearing the Air, Hidden Hazards of Air Fresheners (Sept. 2007), available at http://www.nrdc.org/health/home/airfresheners/contents.asp.

[29] EPA, Air Fresheners; TSCA Section 21 Petition; Notice, 72 Fed. Reg. 72,886 (Dec. 21, 2007).

[30] Id. at 72,891.

[31] EPA supplied several reasons for denying the petitioners' requests, including: the petition did not contain facts establishing that air fresheners present an unreasonable risk to health or the environment,  EPA did not believe that treating air fresheners as a category was appropriate, the petition did not provide a basis for estimating the cost of the proposed rule, and the petition did not establish that the proposed rule was the least burdensome way to protect against any risk.  Id.

[32] Sierra Club v. Johnson, Case No. 3:08-cv-0956 (N.D. Cal. filed Feb. 15, 2008).

[33] Order for Voluntary Dismissal, Document 35-2, Dec. 12, 2008, Sierra Club v. Johnson, Case No. 3:08-cv-0956 (N.D. Cal. filed Feb. 15, 2008).

[34] EPA, Formaldehyde Emissions from Composite Wood Products; TSCA Section 21 Petition; Notice of Receipt, 73 Fed. Reg. 22,369 (Apr. 25, 2008).

[35] EPA, Formaldehyde Emissions from Composite Wood Products; Disposition of TSCA Section 21 Petition, 73 Fed. Reg. 36,504 (June 27, 2008).

[36] Regulatory Information Service Center, Introduction to The Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions, 73 Fed. Reg. 71,106, 71,259 (Nov. 24, 2008).

[37] EPA, Formaldehyde Emissions from Pressed Wood Products, 73 Fed. Reg. 73,620 (Dec. 3, 2008).

[38] EPA, Agency Information Collection Activities; Proposed Collection; Comment Request; Pressed Wood Manufacturing Industry Survey, 73 Fed. Reg. 79,083 (Dec. 24, 2008).

[39] According to his webpage, Michael J. Dochniak works for a company called Mallard Adhesives LLC and he believes that exposure to natural rubber latex adhesives is linked to autism.  See Website of Michael J. Dochniak, available at http://www.autismdoc.org/page2.html.

[40] EPA, Hevea brasiliensis Natural Rubber Latex Adhesives; TSCA Section 21 Petition; Notice of Receipt, 73 Fed. Reg. 22,368 (Apr. 25, 2008).

[41] EPA, Natural Rubber Latex Adhesives; Disposition of TSCA Section 21 Petition, 73 Fed. Reg. 32,573 (June 9, 2008).

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