NGOs Take EPA to Court Over TSCA Framework Rules

In the first major legal challenges to the new TSCA, NGOs have filed petitions seeking court review of the US EPA’s final framework rules for prioritisation and risk evaluation.

The move follows sharp criticism of two key procedural rules released on 22 June. NGOs and Democratic lawmakers have decried that, as finalised, these deviate drastically from the proposals set forth in the final days of the Obama administration and have, they say, been bent in industry’s favour. NGOs have also questioned the neutrality of Nancy Beck – a former American Chemistry Council staffer recently appointed to an EPA leadership role – and the part she may have played in shifting certain provisions.

"Just last year, Congress voted overwhelmingly to overhaul America’s chemical safety law to better protect the public from toxic chemicals," said Richard Denison, lead senior scientist at petitioning organisation the Environmental Defense Fund. "Our legal challenges seek to hold EPA to the law and ensure that the public is protected as Congress intended."

Petitioners have claimed in court documents, filed last Friday, that the two rules are:

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

in excess of statutory jurisdiction, authority, or limitations; and

without observance of procedure required by law.

Concerns

Chief among petitioners’ concerns is the agency’s reversal of its approach to a substance’s ‘conditions of use’. Whereas proposals issued by the EPA in January had called for its evaluation of all such conditions, the final rule gives it discretion to exclude from its analysis certain uses.

Mike Belliveau, executive director of the Environmental Health Strategy Center, said the Trump administration’s EPA "deliberately bypassed the law’s clear requirement" that all uses be considered in an evaluation.

And the Natural Resources Defense Council said in a blog post that the rules' allowing the EPA to "pick and choose" which uses it considers will lead to "incomplete analysis… [that is] likely to be wrong and could lead the EPA to conclude that a chemical does not pose an unreasonable risk when it actually does."

NGOs have also faulted the removal of the pre-prioritisation step, that the agency will no longer default to a ‘high priority’ designation and the adoption of industry-suggested scientific definitions.

"The EPA’s newly adopted rules – overseen by a former high-level chemical industry official with head-spinning conflicts of interest – will leave children, communities and workers vulnerable to dangerous chemicals," said Eve Gartner, an attorney at Earthjustice. "This lawsuit is about one thing: holding the Trump EPA to the letter of the law and ensuring it fulfils its mandate to protect the public."

But the ACC's Mike Walls said the EPA "has exercised its discretion appropriately in publishing well-designed framework rules", and that they are "consistent with the intent of Congress".

"The petitions for review are, in our view, without merit," he added.

The three sets of petitions were filed by:

the Environmental Defense Fund;

the NRDC, together with the Alliance of Nurses for Healthy Environments and Cape Fear River Watch; and

a dozen organisations represented by Safer Chemicals, Healthy Families and Earthjustice, including Environmental Working Group, the Sierra Club and the Union of Concerned Scientists.