Asbestos Disease Awareness Org. v. Wheeler
| Decision Date | 22 December 2020 |
| Docket Number | Case No. 19-cv-03807-EMC,Case No. 19-cv-00871-EMC |
| Citation | 508 F.Supp.3d 707 |
| Court | U.S. District Court — Northern District of California |
| Parties | ASBESTOS DISEASE AWARENESS ORGANIZATION, et al., Plaintiffs, v. Andrew WHEELER, et al., Defendants. State of California, et al., Plaintiffs, v. United States Environmental Protection Agency, et al., Defendants. |
Robert M. Sussman, Sussman and Associates, Washington, DC, Michael P. Connett, Waters Kraus & Paul, El Segundo, CA, for Plaintiffs Asbestos Disease Awareness Organization, American Public Health Association, Center for Environmental Health, Environmental Working Group, Environmental Health Strategy Center, Safer Chemicals Healthy Families.
David Alexander Zonana, California Department of Justice Environment Section, Elizabeth B. Rumsey, California Department of Justice, Attorney General's of, Oakland, CA, Megan Kathryn Hey, California DOJ, Los Angeles, CA, for Plaintiff State of California.
I. Andrew Goldberg, Pro Hac Vice, Massachusetts Attorney General's Office, Boston, MA, for Plaintiff Commonwealth of Massachusetts.
Diane K. Taira, Pro Hac Vice, Jill T. Nagamine, Pro Hac Vice, Wade Hampton Hargrove, III, Pro Hac Vice, Department of the Attorney General, Honolulu, HI, for Plaintiff State of Hawaii.
Katherine Tierney, Pro Hac Vice, Augusta, ME, for Plaintiff State of Maine.
Steven Jay Goldstein, Pro Hac Vice, Office of the Attorney General of Maryland, Baltimore, MD, for Plaintiff State of Maryland.
Philip Sherwood Pulitzer, Pro Hac Vice, Minnesota Attorney General's Office, St. Paul, MN, for Plaintiff State of Minnesota.
Steven Novick, Pro Hac Vice, Oregon Department of Justice, Portland, OR, Paul Andrew Garrahan, Oregon Department of Justice Natural Resources Section, Salem, OR, for Plaintiff State of Oregon.
Jonathan Craig Thompson, Pro Hac Vice, Washington State Attorney General's Office, Olympia, WA, for Plaintiff State of Washington.
David Hoffmann, Pro Hac Vice, Office of the Attorney General for the District of Columbia, Washington, DC, for Plaintiff District of Columbia.
Debra J. Carfora, Brandon N. Adkins, United States Department of Justice, Washington, DC, for Defendants.
EDWARD M. CHEN, United States District Judge Plaintiffs in Case No. 19-0871 are a group of nonprofit public health and environmental organizations that promote awareness about the health risks associated with asbestos.1 The lead plaintiff is the Asbestos Disease Awareness Organization ("ADAO") (collectively, "Plaintiffs"). In Case No. 19-3807, 10 states (led by California) and the District of Columbia (collectively, "the States") bring suit. Plaintiffs and the States filed suit against the Environmental Protection Agency ("EPA") and its Administrator, Andrew Wheeler, challenging the EPA's denial of their petitions to initiate rulemaking under Section 21 of the Toxic Substances Control Act ("TSCA"). The petitions requested EPA to initiate rulemaking to expand its information-gathering process regarding asbestos-related health risks. In particular, the petitions asked EPA to use its significant enforcement authority to mandate that companies report information in their possession concerning the risks posed by asbestos to human health and the environment.
EPA moved to dismiss ADAO's First Amended Complaint for lack of subject matter jurisdiction. Docket No. 16. The Court denied the motion, finding that Plaintiffs’ claims were proper under Section 706 of the Administrative Procedure Act ("APA"). Docket No. 43. Because Plaintiffs’ petition sought an amendment to the existing Chemical Data Reporting rule under TSCA (40 C.F.R. Part 711), the Court found that APA review under 5 U.S.C. § 706 is appropriate, and that de novo review under Section 21(b)(4)(B) of TSCA does not apply. Order at 12.
Plaintiffs and the States now move for summary judgment under the APA, arguing that the EPA's denial of their rulemaking petitions was arbitrary and capricious as a matter of law. Docket Nos. 49, 60. EPA has filed an identical Cross-Motion for Summary Judgment in both cases, asserting that it possesses the requisite information concerning asbestos-related health risks to inform its rulemaking efforts, and that the information requested by Plaintiffs and the States would be duplicative and unnecessary. Docket Nos. 52, 63 (collectively "DMSJ").
Congress enacted TSCA in 1976 as a national program for assessing and managing the risks of chemicals to human health and the environment. Section 2(b) of the Act espouses the following policies: (1) "adequate information should be developed with respect to the effect of chemical substances and mixtures on health and the environment and ... the development of such information should be the responsibility of those who manufacture and those who process such chemical substances and mixtures" and (2) "adequate authority should exist to regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment, and to take action with respect to chemical substances and mixtures which are imminent hazards." 15 U.S.C. § 2601(b)(1)-(2).
TSCA provides the EPA with the authority to regulate such chemicals. Section 6(a) provides that EPA "shall" regulate the "manufacture, processing, distribution in commerce, use, or disposal" of a chemical substance or mixture when EPA determines that it presents an unreasonable risk of injury to health or the environment. See 15 U.S.C. § 2605(a). If it finds an unreasonable risk, the EPA may take a number of measures, including prohibiting the manufacturing, processing, or distribution in commerce of a substance or mixture. 15 U.S.C. § 2605(a)(1).
In fulfilling Section 2(b)’s instruction to develop "adequate information," TSCA empowers the EPA to gather information to enable it to perform its regulatory obligations. Section 8(a)(1) of TSCA provides that the EPA "shall promulgate rules" that require each person who manufactures or processes a chemical substance to submit a report as the Administrator "may reasonably require." 15 U.S.C. § 2607(a)(1)(A). However, Section 8(a)(5)(A) prohibits the EPA, to the extent feasible, from requiring reporting that is "unnecessary or duplicative." 15 U.S.C. § 2607(a)(5)(A). Further, EPA must only apply the reporting obligations under Section 8(a) to "persons likely to have information relevant to the effective implementation [of TSCA]". 15 U.S.C. § 2607(a)(5)(C).
In 2011, EPA used its section 8(a) authority to promulgate the comprehensive Chemical Data Reporting ("CDR") rule. 40 C.F.R. pt. 711. This rule was intended to support EPA's risk assessment and reduction efforts by "providing basic information about the manufacturing, use and exposure profiles of a wide cross-section of chemicals in commerce." MSJ at 4. Reporting requirements apply to all chemicals manufactured or imported at a site in amounts of 25,000 pounds or more in a given reporting year. 40 C.F.R. § 711.8(a). For chemicals like asbestos, which are already regulated under certain other TSCA provisions, the reporting threshold is set at 2,500 pounds per reporting year. 40 C.F.R. § 711.8(b). EPA develops a list of chemical substances on a "Master Inventory File," and all individuals or companies who manufacture or import substances covered by the file, in amounts greater than 25,000 or 2,500 pounds (depending on the applicable standard), must report during a "submission period." See 40 C.F.R. § 711.5 ; 40 C.F.R. § 711.8. In November 2020, EPA extended the 2020 CDR submission period to January 29, 2021, but maintained that subsequent submission periods will be in four-year intervals. 40 C.F.R. § 711.20 ; see also 85 Fed. Reg. 75,235 ( ).
In 2016, Congress amended TSCA with the Frank R. Lautenberg Chemical Safety for the 21st Century Act ("LCSA"). The LCSA directed EPA to establish a risk-based process for determining which chemicals it will prioritize for assessment, identifying chemicals as "high" or "low" priority substances. Chemicals deemed high-priority are those "that the [EPA] Administrator concludes, without consideration of costs or other nonrisk factors, may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator." Pub. L. No. 114-182, 130 Stat. 448 (2016). A high-priority designation triggers a requirement and deadline for EPA to complete a risk evaluation: LSCA provides that within 180 days of its enactment, the EPA must have ongoing risk evaluations for 10 chemical substances. 15 U.S.C. § 2605(b)(2)(A). EPA must publish a final rule not later than two years after the date on which the final risk evaluation regarding a high-priority chemical substance is published. 15 U.S.C. § 2605(c)(1)(B). However, EPA may extend the deadline for publication of the final rule for a period of up to two years. 15 U.S.C. § 2605(c)(1)(C).
Asbestos was identified by EPA as one of the ten chemicals selected for initial risk evaluations under LSCA. In May 2017, Plaintiffs notified the EPA that Occidental Chemical Corporation had failed to report its asbestos imports (totaling several hundred tons), which violated its reporting obligations under the CDR. FAC ¶ 34. In response to Plaintiffs’ notice, the EPA wrote a letter to Occidental on July 28, 2017, informing it that its asbestos imports...
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