TSCA §19-Judicial Review

• Author: Carolyne R. Hathaway/William K. Rawson/Ann Claassen/Julia A. Hatcher
• Pages: 147-148

Page 147

Chapter XV:

TSCA §19—Judicial Review

TSCA §19 sets forth the requirements for a

party seeking judicial review of EPA action

under TSCA.

A. Timing and Jurisdiction

Within 60 days after EPA ha s promulgated a rule

under TSCA §4(a) (testing), §5(a)(2) (determining

signicant new uses), §5(b)(4) (listing of chemicals

that present or may present an unreasonable risk),

§6(a) (rules imposing requirements on chemicals

to protect against unreasonable health or environ-

mental risks), §6(e) (rules on PCBs), and §8 (rules

related to recordkeeping or reporting), or under

Titles II or IV of TSCA (pertaining to asbestos,

radon, and lead), any person may le a petition for

judicial review of the rule.1

e U.S. c ourts of appeals have exclusive juris-

diction to hear such actions.2 e petitioner may

seek review of an EPA rule in the D.C. Circuit or

for the circuit in which the petitioner resides or in

which the petitioner’s principal place of business

is located.3 For an action brought for review of an

EPA order issued under TSCA §6(b)(1) (ordering a

manufacturer or processor to submit quality con-

trol procedures), the U.S. courts of appeals likewise

have exclusive jurisdiction.4 An exception to this

exclusive jurisdiction is in cases seeking re view

of EPA enforcement proceedings, which must be

led in district court.5 Any transfer of proceedings

1. 15 U.S.C. §2618(a)(1)(A), ELR S. TSCA §19(a)(1)(A).

2. Id. See Dow Chem. Co. v. Costle, 484 F. Supp. 101, 104 (D.

Del. 1980) (holding that district court lacked jurisdiction over

action seeking preenforcement review of a regulation promulgated

under TSCA §6(e), “since Section 19(a)(1)(A) vests the courts of

appeals with exclusive jurisdiction over any attempts to secure

pre-enforcement review”).

3. 15 U.S.C. §2618(a)(1)(A), ELR S. TSCA §19(a)(1)(A).

4. Id. §2618(a)(1)(B), ELR S. TSCA §19(a)(1)(B).

5. Id. §2618(a)(1)(A), (B), ELR S. TSCA §19(a)(1)(A), (B).

between U.S. courts of appeals is governed by the

provisions of 28 U.S.C. §2112.6

B. Rulemaking Record

Actions challenging EPA action based on an agency

rulemaking under TSCA are “record review” cases,

adjudicated on the ba sis of EPA’s rulemaking

record taken a s a whole.7 TSCA §19(a)(3) estab-

lishes the contents of t he rulemak ing record,8 and

EPA’s ling of the rulemaking record is governed

by 28 U.S.C. §2112.9 When EPA promulgates rules

under §4(a) (testing), §5(b)(4) (listing of chemicals

that present or may present an unreasonable risk),

§6(a) (rules imposing requirements on chemicals

to protect against unreasonable health or environ-

mental risks), or §6(e) (rules on PCBs), it must, as

part of the rulemaking, provide an “opportunity

for a n informal hearing” at which interested per-

sons may submit documents or testify orally.10

ese hearings are part of the rulemaking record.

C. Standards of Review

TSCA §19(c) establishes dierent sta ndards of

review applicable to rules promulgated under

TSCA based on whether or not their promulgation

allows for an informal hearing. Specically, the

familiar standards of review for agency action set

6. Id. §2618(a)(2), ELR S. TSCA §19(a)(2).

7. See id. §2618(c), ELR S. TSCA §19(c) (applying standard

of review to “the rulemaking record (as dened in subsection

(a)(3)) taken as a whole”); see also Chemical Mfrs. Ass’n v. EPA,

859 F.2d 977, 992, 19 ELR 20001, 20009 (D.C. Cir. 1988)

(challenge to test rule promulgated under §4(a)).

8. 15 U.S.C. §2618(a)(3), ELR S. TSCA §19(a)(3).

9. Id. §2618(a)(2), ELR S. TSCA §19(a)(2).

10. See id. §2603(b)(5)(A), ELR S. TSCA §4(b)(5)(A); id.

§2604(b)(4)(C)(i), ELR S. TSCA §5(b)(4)(C)(i); id. §2605(b)

(2)(B), ELR S. TSCA §6(b)(2)(B); id. §2605(e)(4), ELR

S. TSCA §6(e)(4).