Not a Lexis Advance subscriber? Try it out for free.

Safer Chems. v. United States EPA

United States Court of Appeals for the Ninth Circuit

May 16, 2019, Argued and Submitted, Seattle, Washington; November 14, 2019, Filed

No. 17-72260, No. 17-72501, No. 17-72968, No. 17-73290, No. 17-73383, No. 17-73390

Opinion

 [*656]  MEMORANDUM3

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.4 EPA seeks voluntary remand on 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 [**16]  lack merit.5

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, 300 U.S. App. D.C. 330 (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.

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 [**17]  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.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

791 Fed. Appx. 653 *; 2019 U.S. App. LEXIS 33999 **; 2019 WL 6041996

SAFER CHEMICALS, HEALTHY FAMILIES; et al., Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; ANDREW WHEELER,1 Administrator, United States Environmental Protection Agency, Respondents, AMERICAN CHEMISTRY COUNCIL; et al., Respondents-Intervenors.ENVIRONMENTAL DEFENSE FUND, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; ANDREW WHEELER, Administrator, United States Environmental Protection Agency, Respondents, AMERICAN CHEMISTRY COUNCIL; et al., Respondents-Intervenors.ALLIANCE OF NURSES FOR HEALTHY ENVIRONMENTS; et al., Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, AMERICAN CHEMISTRY COUNCIL; et al., Respondents-Intervenors.SAFER CHEMICALS, HEALTHY FAMILIES; et al., Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; ANDREW WHEELER, Administrator, United States Environmental Protection Agency, Respondents, AMERICAN CHEMISTRY COUNCIL; et al., Respondents-Intervenors.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] On Petition for Review of an Order of the Environmental Protection Agency. EPA No. EPA-HQ-OPPT-2016-0636. EPA No. EPA-HQ-OPPT-2016-0654. EPA No. EPA-HQ-OPPT-2016-0654. EPA No. EPA-HQ-OPPT-2016-0654.

Safer Chems. Healthy Families v. United States EPA, 2018 U.S. App. LEXIS 19934 (9th Cir., July 18, 2018)

CORE TERMS

provisions, prioritization, challenges, information-gathering, vacatur, reasonably available, bad faith, manufacturer, frivolous, purposes, VACATED, sufficient information, challenged provision, relevant information, chemical substance, categorically, risk-related, Consistency, evaluations, incomplete, regulation, scientific, prevents, merits, screen

Environmental Law, Hazardous Wastes & Toxic Substances, Toxic Substances, Administrative Law, Judicial Review, Remand & Remittitur