Safer Chem Healthy Families v. Usepa ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAFER CHEMICALS, HEALTHY No. 17-72260
FAMILIES; et al.,
Petitioners,
MEMORANDUM*
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; ANDREW WHEELER,**
Administrator, United States Environmental
Protection Agency,
Respondents,
AMERICAN CHEMISTRY COUNCIL; et
al.,
Respondents-Intervenors.
ENVIRONMENTAL DEFENSE FUND, No. 17-72501
Petitioner,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; ANDREW WHEELER,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Andrew Wheeler has been substituted for his predecessor, Scott Pruitt,
under Fed. R. App. P. 43(c)(2).
Administrator, United States Environmental
Protection Agency,
Respondents,
AMERICAN CHEMISTRY COUNCIL; et
al.,
Respondents-Intervenors.
ALLIANCE OF NURSES FOR HEALTHY No. 17-72968
ENVIRONMENTS; et al.,
EPA No.
Petitioners, EPA-HQ-OPPT-2016-0636
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Respondent,
AMERICAN CHEMISTRY COUNCIL; et
al.,
Respondents-Intervenors.
ALLIANCE OF NURSES FOR HEALTHY No. 17-73290
ENVIRONMENTS; et al.,
EPA No.
Petitioners, EPA-HQ-OPPT-2016-0654
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY,
2
Respondent,
AMERICAN CHEMISTRY COUNCIL; et
al.,
Respondents-Intervenors.
ENVIRONMENTAL DEFENSE FUND, No. 17-73383
Petitioner, EPA No.
EPA-HQ-OPPT-2016-0654
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; ANDREW WHEELER,
Administrator, United States Environmental
Protection Agency,
Respondents,
AMERICAN CHEMISTRY COUNCIL; et
al.,
Respondents-Intervenors.
SAFER CHEMICALS, HEALTHY No. 17-73390
FAMILIES; et al.,
EPA No.
Petitioners, EPA-HQ-OPPT-2016-0654
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; ANDREW WHEELER,
Administrator, United States Environmental
Protection Agency,
3
Respondents,
AMERICAN CHEMISTRY COUNCIL; et
al.,
Respondents-Intervenors.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted May 16, 2019
Seattle, Washington
Before: O’SCANNLAIN and FRIEDLAND, Circuit Judges, and PAULEY,***
District Judge.
Petitioners challenge two rules promulgated by the Environmental
Protection Agency (“EPA” or the “Agency”) under the Toxic Substances Control
Act (“TSCA” or the “Act”)—specifically, EPA’s Prioritization Rule and its Risk
Evaluation Rule (collectively, the “Framework Rules”). Petitioners argue that
various provisions of the Framework Rules violate TSCA’s requirements,
including, as relevant here, TSCA’s mandate that EPA consider all “reasonably
available” information in carrying out the Act.1 EPA seeks voluntary remand on
***
The Honorable William H. Pauley III, United States District Judge for
the Southern District of New York, sitting by designation.
1
TSCA requires that “the Administrator . . . take into consideration
information relating to a chemical substance or mixture, including hazard and
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three of the provisions that Petitioners have challenged. We grant EPA’s requested
remand of those three provisions. We hold that we have jurisdiction over
Petitioners’ challenges to two other information-gathering provisions, but that the
challenges lack merit.2
1. “[C]ourts [generally] only refuse voluntarily requested remand when the
agency’s request is frivolous or made in bad faith.” Cal. Cmtys. Against Toxics v.
EPA, 688 F.3d 989, 992 (9th Cir. 2012); see also Ethyl Corp. v. Browner, 989 F.2d
522, 524 (D.C. Cir. 1993) (“We commonly grant [agency remand] motions,
preferring to allow agencies to cure their own mistakes rather than wasting the
courts’ and the parties’ resources reviewing a record that both sides acknowledge
to be incorrect or incomplete.”).
EPA asks the court to vacate and remand one of the challenged provisions in
the Petition for Review—40 C.F.R. § 702.31(d), which criminally penalizes
submission of inaccurate or incomplete information to EPA. All parties agree that
remand and vacatur of this rule is appropriate. Because we conclude that this
request is neither frivolous nor made in bad faith, we agree that remand with
vacatur is appropriate.
exposure information, under the conditions of use, that is reasonably available to
the Administrator.” 15 U.S.C. § 2625(k).
2
We resolve the remainder of Petitioners’ claims in a concurrently filed
opinion.
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EPA seeks remand without vacatur on two other information-gathering
provisions challenged by Petitioners. Both fall within 40 C.F.R. § 702.37, which
relates to manufacturer requests for risk evaluations. Specifically, EPA seeks
remand on what it calls the “relevancy” provision, which requires manufacturers to
include certain relevant information in a risk evaluation request (§ 702.37(b)(4)),
and the “consistency” provision, which requires that such information be consistent
with certain scientific standards (§ 702.37(b)(6)). As with 40 C.F.R. § 702.31(d),
we conclude that EPA’s request for remand is not frivolous or made in bad faith.
EPA asserts that it “believes that [Petitioners’] concerns about these [two]
provisions can be addressed through modifications to the language of the
regulations,” and it contends that “the unintended consequences of the Relevancy
and Consistency Provisions that Petitioners allege are not serious,” because “[e]ven
if a manufacturer were to rely on those provisions to withhold information, EPA
has independent authority to collect that information or require development of
new information as needed to conduct its risk evaluations.” Accepting EPA’s
representation that it can address Petitioners’ concerns, we agree with EPA that
remand without vacatur is appropriate with respect to the challenged provisions of
40 C.F.R. § 702.37. See Cal. Cmtys. Against Toxics, 688 F.3d at 992 (holding that
“[a] flawed rule need not be vacated,” and “‘when equity demands, the regulation
can be left in place while the agency follows the necessary procedures’ to correct
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its action” (quoting Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th
Cir. 1995))).
2. With respect to the two remaining information-gathering provisions on
which EPA does not seek voluntary remand, the Agency argues that Petitioners
lack standing to challenge the provisions and that Petitioners’ challenges fail on the
merits. We hold that we have jurisdiction because Petitioners allege sufficient
theories of injury to support standing but that the challenges fail on the merits.
Petitioners challenge 40 C.F.R. § 702.9(b) as erecting a “screen” that
excludes some “reasonably available information” from EPA’s consideration.
Petitioners argue that they are injured by this provision because it means that “EPA
need never notify the public that the information exists, preventing the public from
assessing it and commenting on its significance.” But 40 C.F.R. § 702.9(b)
describes only the Agency’s “expectation” that it will consider scientific evidence
“consistent with” the standards in 15 U.S.C. § 2625(h). It does not categorically
remove any types of evidence from consideration, and it does not require the
Agency to violate the requirement in TSCA that the Agency consider all relevant
information. Contrary to Petitioners’ assertion, this provision therefore does not
screen or exclude any information from the Agency’s consideration.
Petitioners also challenge 40 C.F.R. § 702.5(b) and (e), two subsections of a
provision dealing with EPA’s selection of chemicals as either high- or low-priority
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substances. Petitioners argue that these provisions violate TSCA because, under
their terms, EPA will only consider whether it has sufficient information for
purposes of prioritization, and not for purposes of risk evaluation. But nothing in
these provisions categorically prevents EPA from obtaining and considering
sufficient information to conduct both a prioritization and a risk evaluation for
each chemical substance. These provisions notwithstanding, EPA may, during
prioritization, obtain further risk-related information. In fact, the preamble to the
Prioritization Rule suggests that EPA will do just that: “EPA expects to consider
the existence and availability of risk-related information on a candidate chemical
substance before initiating the prioritization process.” Procedures for Prioritization
of Chemicals for Risk Evaluation Under the Toxic Substances Control Act, 82 Fed.
Reg. 33,753, 33,758 (July 20, 2017) (emphasis added). Thus, neither of these
subsections actually prevents EPA from—or indicates that it will not—consider all
reasonably available information for purposes of both prioritization and risk
evaluation. Petitioners’ challenge therefore fails.
EPA’s motion for partial voluntary remand is GRANTED. 40 C.F.R.
§ 702.31(d) is VACATED AND REMANDED and 40 C.F.R. § 702.37(b)(4) and
(b)(6) are REMANDED. Petitioners’ remaining challenges to the
information-gathering provisions are DENIED.
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