EPA: Courts should limit scope when reviewing citizen petitions under TSCA

Fluoride case may set a precedent

In reviewing citizen petitions for chemical regulation under the US Toxic Substances Control Act (TSCA), courts should only consider information originally presented to the EPA in administrative proceedings, the agency has argued.

The EPA made the argument in connection with a lawsuit brought by a group of NGOs demanding that the agency ban the addition of fluoride to drinking water. This case could end up setting precedent for how the judiciary handles citizen petitions under TSCA, and may also have implications for a separate legal dispute over the EPA’s implementation of TSCA’s risk evaluation mandates.

In a December ruling, the court rejected both the agency’s request to dismiss the case and its contention that citizen petitions must address all potential conditions of use, rather than demanding action against one use of a chemical.

The administrative action underlying the case is the EPA’s February 2017 denial of a petition by organisations campaigning against fluoridation of drinking water. The agency argued that other uses must be addressed as well as disputing the scientific evidence of neurotoxicity that the NGOs presented.

The issue, addressed by legal papers submitted in January, is whether the NGOs can submit information beyond that already presented in their petition to the EPA and demand that the agency provide additional information to the court.

Section 21, the part of TSCA providing for citizen petitions, states that when the EPA denies one, "the petitioner shall be provided an opportunity to have such petition considered by the court in a de novo proceeding."

The EPA argues that the words "such petition" should limit consideration to information in the administrative record.

The NGOs’ interpretation would allow a petitioner to argue one set of facts and then seek a judicial order for regulation "based on a completely different set of facts," the EPA says in its filing. In addition, the EPA says, the NGOs have not identified what additional facts they wish to present or seek.

The NGOs contend that a "de novo proceeding" by definition involves creation of a new record, and that Section 21 draws a distinction between administrative proceedings and the higher level of evidence "required to prevail in district court."

Broader Implications

A separate group of NGOs filed petitions in August 2017 for court review of the final framework rules, arguing they do not faithfully implement the 2016 TSCA amendments.

One of the major issues in dispute is what "conditions of use" must be considered in risk evaluation. In that case, the NGOs are arguing that TSCA requires consideration of all possible uses – the interpretation the EPA wishes to apply to citizen petitions in the fluoride case.

The proceedings in the fluoride case may take on additional importance as it is being argued in a federal district court in California. The US Court of Appeals for the Ninth Circuit would hear an appeal of the eventual decision. This is the court that will decide the TSCA framework cases.