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Erik Baptist Discusses EPA’s Expanded Argument in Asbestos-Related TSCA Case

Inside EPA
October 8, 2019

Erik C. Baptist, partner in Wiley Rein’s Environment & Product Regulation Practice, was quoted by Inside EPA in coverage of arguments advanced by the U.S. Environmental Protection Agency (EPA) in litigation involving the Toxic Substances Control Act (TSCA).

The article cited EPA’s September 27 supplemental brief, which presented a new argument to dismiss part of a suit challenging the agency’s denial of a 2018 petition under Section 21 of TSCA that asked EPA to require additional reporting of asbestos data.

The supplemental brief, in Asbestos Disease Awareness Organization (ADAO) v. Wheeler, responds to a federal district court judge’s request for the parties to clarify whether ADAO’s petition asked EPA to revise its existing Chemical Data Reporting (CDR) rule or create a new rule. 

According to the article, EPA argued that because the substance and form of ADAO’s petition sought to amend EPA’s CDR rule, the appropriate judicial review must be limited to TSCA Section 21(b)(4)(A), which governs petitions seeking to revise existing rules, precluding review under the Administrative Procedure Act (APA).

A similar case before the same judge, filed by a group of state attorneys general, also involves a Section 21 petition for additional reporting of asbestos data. That case has been stayed pending a ruling in the ADAO case.

The EPA “appears to be taking a position with a broader interest in mind,” Mr. Baptist told Inside EPA. “I believe the government wants to set up its arguments in the related case brought by the attorneys general.”

“I would predict that the government will subsequently argue that even though the attorneys general explicitly requested a new reporting rule for asbestos under Section 8, they were essentially trying to the amend the substance of the CDR rule,” Mr. Baptist added. “Therefore, their petition should be treated as one seeking the issuance for the amendment of a rule and not afforded a de novo proceeding under Section 21(b)(4)(B).”

Mr. Baptist also discussed remedies that could result from the APA claim, if the judge allows that part of the case to move ahead. “The government argues that the court can only set aside EPA’s action and merely remand the matter back to the agency for reconsideration, while the plaintiffs argue that the court can compel EPA to initiate the requested rulemaking,” he said.

“Because the parties raise important, precedent-setting issues in their briefs, the court might heed the advice of the plaintiffs … by inviting the attorneys general to join the conversation,” Mr. Baptist said.

To read the article, click here (subscription required).