Playing fair: The need for parity in challenging EPA’s decisions on the safety of chemicals under TSCA

Richard Denison, Ph.D.is a Lead Senior Scientist.

As Senate and House negotiators are working to reconcile their Toxic Substances Control Act (TSCA) reform bills, in addition to resolving the higher-profile issues, there is a need to pay attention to the important details.  This post gives one example of an issue that may seem esoteric, but goes to the core of how the new law would actually function and hence needs to be addressed.

Doesn’t it make sense that someone who believes EPA erred in determining that a chemical is safe be able to challenge that decision in a manner that is on par with a challenge of an EPA decision that a chemical is not safe?

Yet this parity is a feature only of the Senate’s TSCA reform legislation, not the House’s.  Here’s why:  

Under the Senate bill:

  • EPA determinations that a chemical does not meet the safety standard trigger a risk management rule; once issued, that rule and the underlying determination are subject to judicial review under the “substantial evidence” standard of TSCA’s Section 19(c).
  • This is in parity with how EPA determinations that a chemical meets the safety standard are treated:  Such determinations must be made by order, and those orders are not only expressly subject to judicial review under TSCA Section 19, but are subject to review under the “substantial evidence” standard of Section 19(c).

In contrast, under the House bill:

  • EPA determinations that a chemical presents an unreasonable risk trigger a risk management rule, which is subject to judicial review under the “substantial evidence” standard of Section 19(c), the same as in the Senate bill.
  • However, EPA determinations that a chemical does not or will not present an unreasonable risk would most likely only be subject to the “arbitrary and capricious” standard of judicial review.  That is because:
    • The House bill does not specify how such determinations are to be made and does not require them to be made by rule, and only rules under Section 6 are subject to Section 19.
    • While the House bill specifies that such determinations are final agency actions, this designation would not subject them to judicial review under TSCA Section 19. They could be challenged under the Administrative Procedures Act (APA), but that law applies the lower “arbitrary and capricious” standard of judicial review.

Bottom line:

  • Under the House bill, if challenged in court, EPA would have to defend its decision that a chemical is not safe by showing it was based on “substantial evidence.” In contrast, for a decision that a chemical is safe, EPA would only need to show that the decision was not “arbitrary and capricious.”
  • That means industry would have an easier time getting a court to overturn an EPA “not-safe” determination than, say, a health or environmental group would have to get a court to overturn an EPA “safe” determination.
  • Under the Senate bill, both types of determinations would get equal treatment in any court challenges.

I suspect this discrepancy is inadvertent and hence can be readily fixed in reconciling the two bills.  But it needs to get fixed.

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