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Erik Baptist Discusses Questions Raised by Judge in Asbestos-Related TSCA Case

Inside EPA
September 20, 2019

Erik C. Baptist, partner in Wiley Rein’s Environment & Product Regulation Practice, was quoted by Inside EPA in a September 18 article about questions raised by a federal district judge in litigation involving the Toxic Substances Control Act (TSCA).

In Asbestos Disease Awareness Organization (ADAO) et. al v. Wheeler, the plaintiffs are challenging the U.S. Environmental Protection Agency’s (EPA) denial of their 2018 petition that sought additional asbestos reporting under Section 21 of TSCA, Inside EPA reported. The plaintiffs are pursuing their claims under TSCA and the Administrative Procedures Act (APA).

A Justice Department attorney representing the EPA urged the court at a September 5 hearing to dismiss the APA claim – and then filed a post-hearing clarification on September 11 that explained the appropriate standard of review for a petition seeking to amend an existing rule, according to the article. The judge asked the parties this week to clarify whether the 2018 petition sought a new rule or an amendment to an existing rule, and how that question related to the EPA’s motion to dismiss.

“Because the government’s post-hearing ‘…clarification’ essentially concedes that the court should apply [APA]’s arbitrary and capricious standard of review, I would not be surprised if the court were to deny the government’s motion to dismiss plaintiffs’ APA claim,” Mr. Baptist told Inside EPA.

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