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Section 21 Petitions: Empowering Environmental Advocacy?

Explore the potential impact of Section 21 Petitions under TSCA, including recent cases and the increased likelihood of success. Learn how these petitions can empower environmental advocacy.

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Section 21 Petitions: Empowering Environmental Advocacy?

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  1. Section 21 Petitions – A Looming Threat? January 10, 2018

  2. Please Don’t Forget to Dial-In: Conferencing Number: (800) 768-2983 Access Code: 434 4318 (View the slides via webinar, and the sound via phone)

  3. Herbert Estreicher, J.D., Ph.D. Herbert Estreicher, J.D., Ph.D. has a broad practice in international environmental regulatory law. He has an interdisciplinary approach combining law and science. He represents leading manufacturers of chemicals, pesticides, insect repellents, food additives, and consumer products before Federal and State regulatory agencies. He helps clients secure and maintain chemical approvals and pesticide registrations in the U.S., Canada, Europe, and Korea, advises clients on TSCA Reform, the CEPA challenge program, Korea REACH, and provides advice on European chemical directives and initiatives, such as the EU Biocidal Products Regulation, and the EU REACH regulation. estreicher@khlaw.com • 202.434.4334

  4. Eric Gotting Eric Gotting serves as a partner in the firm’s litigation and environmental practice groups specializing in complex civil and appellate matters, as well as internal investigations and regulatory compliance. He focuses on a broad range of legal issues, including administrative law, agency enforcement actions, toxic torts, product liability, general business litigation, and regulatory compliance. He works with a diverse set of industries, including chemicals, plastics, pesticides, fuels/pipeline, food/packaging, consumer goods, telecommunications, and e-cigarettes/e-liquids. Mr. Gotting is a former Am Law 50 litigation partner and U.S. Department of Justice trial attorney. gotting@khlaw.com • 202.434.4269

  5. What is Section 21 of TSCA • Under TSCA section 21, any person may petition EPA to initiate a proceeding for the issuance, amendment, or repeal of a rule or in some cases an order under: • Section 4 -- rules or orders requiring chemical testing; • Section 6 -- rules imposing regulatory controls on chemicals; • Section 8 -- rules requiring information; or, • Section 5(e) or 5(f) -- orders affecting new chemical substances.

  6. Section 21 Petitions Continued • EPA is required to grant or deny the petition within 90 days. • If EPA grants the petition, EPA must promptly commence an appropriate proceeding. • If EPA denies the petition, the reasons for denial must be published in the Federal Register. • Petitioner may file an action in a U.S. district court if EPA either denies a petition or EPA fails to either grant or deny a petition within 90 days.

  7. Section 21 Petitions Continued (2) • The court can undertake a de novo review. • To prevail a petitioner must show by a preponderance of the evidence (more likely than not) that there are sufficient facts to justify a rulemaking (or proceeding on whether to issue an order) under the relevant statutory standard. • A court may allow EPA to defer issuance of a rule or order if the court makes two findings: (1) the extent of the alleged risk to health or the environment is less than the extent of the other risks which EPA is addressing under TSCA, and (2) EPA has insufficient resources to take the action sought by the petitioner. • A court may award costs and attorneys fees to prevailing petitioner.

  8. Who Brings Section 21 Petitions and What Are They About? • Generally brought by Env’t Groups • Generally seeking Section 6 bans; Section 4 test rules; Section 8(a) PAIR rules. • Some examples: • CO2 Ocean Acidification • Mercury/Recordkeeping and Reporting • Polyvinyl Chloride (PVC) Disposal • Lead in Shot and Bullets • Hydraulic Fracking Chemicals • Formaldehyde in Pressed Wood See https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/tsca-section-21

  9. Section 21 Petitions under the Old and the Amended TSCA • Under the old TSCA Section 21 Petitions for a Section 6 or Section 4 rule were generally never successful but Petitions for Section 8(a) rules enjoyed more success. • Why was this the case? • Section 21 is one of the few TSCA provisions not substantively amended by the LCSA but the new TSCA increases the likelihood of successful Section 21 petitions: (1) EPA will soon gain experience promulgating Section 6 rules. (2) EPA can now issue Section 4 test orders. (3) There is arguably a reduced threshold for Section 5(e) orders. (4) There is unprecedented interest by Env’t Groups about all things TSCA.

  10. Section 21 Fluoridation Litigation: Background • Food & Water Watch, Inc. v. EPA, Case No. 3:17-cv-02162 (N.D. Cal.) • Seeks Section 6(a) rule banning fluoridation of drinking water supplies • EPA denied previous Section 21 petition • Petitioners filed lawsuit asking court to review EPA’s denial • EPA filed a motion to dismiss based on procedural grounds • Petitioners failed to identify specific fluoridation chemicals/category • Petitioners failed to address “all” conditions of use for fluoridation chemicals • Court denied EPA’s motion to dismiss • Petitioners sufficiently identified the chemicals/category • Section 21 petitions do not need to identify “all” conditions of use • Environmental and consumer non-profits filed amicus brief • Court cited amicus brief in support of denial • Industry did not file an amicus brief • Next battle is over scope of “de novo” review • Is it limited to the administrative record?

  11. Section 21 Fluoridation Litigation: Takeaways • Will see increase in litigation under Section 21 • Difficult for EPA to avoid trial on the merits • NGOs get second bite at the apple under de novo review • Increased uncertainty when judge, not EPA, makes decision • Industry should consider intervening in litigation • Impact of limiting “de novo” review to administrative record • Industry should consider filing amicus briefs in support of denial

  12. Final Thoughts • Like it or not the Courts will playing a central role in deciding how EPA implements the New TSCA. • Industry must be engaged to ensure the development of a sound body of jurisprudence. • Court decisions affirming EPA rules under the current Administration will not be subject to rollback by a change in Administration.

  13. The Next TSCA 30/30:Wednesday, February 14th For more information on past and future TSCA 30/30 programs, please visit www.khlaw.com/tsca3030 and www.TSCAReformCenter.com for the most up-to-date TSCA news

  14. THANK YOU Gotting@khlaw.com 202.202.4269 Estreicher@khlaw.com 202.434.4334

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