Labor Council for Latin Am. Advancement v. U.S. Envtl. Prot. Agency
| Decision Date | 01 September 2021 |
| Docket Number | August Term, 2020,Docket Nos. 19-1042(L),19-1044,19-2329 |
| Citation | 12 F.4th 234 |
| Parties | LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT; Natural Resources Defense Council, Inc.; Vermont Public Interest Research Group; Safer Chemicals Healthy Families ; Lauren Atkins; Wendy Hartley ; and Halogenated Solvents Industry Alliance, Inc., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ; and Michael S. Regan, as Administrator of the United States Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Second Circuit |
Jonathan Kalmuss-Katz (Eve C. Gartner, on the brief), Earthjustice, New York, NY, for Petitioner Labor Council for Latin American Advancement.
Thomas Zimpleman, Natural Resources Defense Council, Washington, DC, for Petitioner Natural Resources Defense Council.
Robert M. Sussman, Sussman & Associates, Washington, DC, for Petitioners Vermont Public Interest Research Group, Safer Chemicals Healthy Families, Lauren Atkins, and Wendy Hartley.
W. Caffey Norman, Squire Patton Boggs (US) LLP, Washington, DC; Keith Bradley (Alexander Arensberg, on the brief), Squire Patton Boggs (US) LLP, Denver, CO, for Petitioner Halogenated Solvents Industry Alliance, Inc.
Daniel Depasquale, Bethany Fisher, Office of the General Counsel, United States Environmental Protection Agency, Washington, DC; Jeffrey Bossert Clark, Assistant Attorney General; Jonathan Brightbill, Principal Deputy Assistant Attorney General; Sarah A. Buckley, Trial Attorney, United States Department of Justice, Washington, DC, for Respondents.
Before: LEVAL, CABRANES, and RAGGI, Circuit Judges.
This case involves two petitions for review of a Final Rule of the United States Environmental Protection Agency ("EPA"). The rule restricts consumer uses of methylene chloride, a chemical used in paint removal products, by prohibiting the distribution of products containing methylene chloride to and by retailers. Petitioner Halogenated Solvents Industry Alliance, Inc., ("HSIA") contends that the Final Rule's undertaking to prevent consumer use of the chemical by banning retail distribution should be set aside (1) because in addition to consumer uses targeted by the Final Rule, that prohibition on retailers incidentally also restricts commercial uses by small businesses, which frequently purchase methylene chloride from retailers because their needs are for smaller quantities; and (2) because EPA gave inadequate consideration to costs imposed by the rule. Petitioners Labor Council for Latin American Advancement; Natural Resources Defense Council, Inc.; Vermont Public Interest Research Group; Safer Chemicals Healthy Families; Lauren Atkins; and Wendy Hartley (collectively, "Environmental Petitioners") contend that the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq. ("TSCA") required the EPA to regulate commercial uses of methylene chloride as well as consumer uses, and that EPA's failure to do so requires that the Final Rule be expanded to encompass commercial uses.
In response to HSIA, EPA argues that TSCA required it to impose rules that would ensure that the risks posed by consumer uses of methylene chloride are "no longer present[ed]," 15 U.S.C. § 2605(a), and that the consumer use restriction effectuated by prohibiting sales to and by retailers was a reasonable means, supported by substantial evidence, of achieving this end. In response to the Environmental Petitioners’ argument that commercial uses of methylene chloride should also have been restricted, EPA argues that, because it is still considering how to appropriately regulate commercial uses, the agency's action on this question is not yet final or subject to judicial review.
We conclude that EPA's implementation of a retailer distribution ban was a reasonable means to achieve its required goal of ensuring that the risks posed by consumer uses of methylene chloride were "no longer present[ed]." 15 U.S.C. § 2605(a). With respect to Environmental Petitioners’ claim regarding regulation of commercial uses, we conclude that it is prudentially unripe for judicial review at this time. Accordingly, the petitions for review of the challenged Final Rule are DENIED.
TSCA imposes a duty on EPA to "conduct risk evaluations ... to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors." 15 U.S.C. § 2605(b)(4)(A). Under § 2605(a), if the Administrator of EPA determines that a chemical "presents an unreasonable risk of injury to health or the environment, the Administrator shall by rule ... [impose] requirements to such substance ... to the extent necessary so that [it] no longer presents such risk." In this opinion, we refer to rules promulgated by EPA under this section, such as the Final Rule that is the subject of the Petitioners’ challenge, as " § 2605(a) rules."
Methylene chloride is a chemical used as a solvent with a variety of commercial and consumer use applications, including as a component of paint removal products. EPA first initiated a "comprehensive regulatory investigation" of the risks posed and options to regulate methylene chloride in 1985 but took little action with respect to that investigation until 2012. See Methylene Chloride; Initiation of Regulatory Investigation, 50 Fed. Reg. 42,038 (Oct. 17, 1985). In February 2012, the Center for Disease Control and Prevention ("CDC") issued a report identifying thirteen deaths from the use of methylene chloride paint strippers in commercial bathtub refinishing. That report noted that the widespread availability of such products—many of which consisted of 60-90% methylene chloride —"puts both professional bathtub refinishers and do-it-yourselfers at risk." Joint App'x 39.
In June 2012 (prior to TSCA's amendment in 2016), EPA included methylene chloride on its TSCA Work Plan, a list of chemicals that EPA planned to assess under TSCA. EPA produced a draft risk assessment of methylene chloride's paint stripping uses in January 2013 and finalized the risk assessment in August 2014 (hereafter "2014 Risk Assessment"). The 2014 Risk Assessment identified numerous risks arising from the use of paint strippers containing methylene chloride, including risks of acute exposure causing "death; neurological impacts such as coma, incapacitation, loss of consciousness, and dizziness; and liver effects," and risks of chronic exposure causing "brain cancer, liver cancer, non-Hodgkin lymphoma, and multiple myeloma." Methylene Chloride and N-Methylpyrrolidone; Regulation of Certain Uses Under TSCA Section 6(a), 82 Fed. Reg. 7,464, 7,468, 7,471 (proposed Jan. 19, 2017) (hereafter "Proposed Rule"). The 2014 Risk Assessment, though noting these risks, was, as EPA points out, "a scientific document," which "[a]t no point ... purport[ed] to make a policy-based determination that the identified risks were ‘unreasonable risks’ under [ Section] 2605(a)." EPA Br. 10; see also Joint App'x 169-70. Still, there was evidence in the 2014 Risk Assessment that persons engaged in bathtub refinishing using products containing less than 85% methylene chloride were exposed to concentrations of methylene chloride at levels characterized as "Immediately Dangerous to Life and Health," and that 49 deaths had been caused by methylene chloride since 1976. EPA took no action to characterize these risks as "unreasonable" under § 2605(a) until 2017.
In 2017, EPA proposed a § 2605(a) rule regarding commercial and consumer uses of methylene chloride in paint and coating removal. See 2017 Proposed Rule, 82 Fed. Reg. 7,464. The Proposed Rule was an exercise of the EPA's discretionary authority under 15 U.S.C. § 2625(l )(4), which permits promulgation of § 2605(a) rules for chemicals, such as methylene chloride, for which EPA had "published a completed risk assessment prior to June 22, 2016." 15 U.S.C. § 2625(l )(4). Relying on the 2014 Risk Assessment, EPA proposed to determine that both acute and chronic "methylene chloride exposures during paint and coating removal present unreasonable risks." 2017 Proposed Rule, 82 Fed. Reg. at 7,478. Accordingly, EPA proposed to "prohibit the manufacture (including import), processing, and distribution in commerce of methylene chloride for all consumer and for most types of commercial paint and coating removal uses," and "to prohibit the use of methylene chloride for commercial paint and coating removal in [several] specified sectors." Id. at 7,465. EPA did not propose to "regulate the use of methylene chloride in commercial furniture refinishing ... or refinishing conducted by professionals or commercial workers," but noted that it "intend[ed] to issue a separate proposal on methylene chloride in paint and coating removal in commercial furniture refinishing" and that it "plan[ned] to issue one final rule covering both this proposal and the future proposed rule on methylene chloride in paint and coating removal in commercial furniture refinishing." Id. Finally, the EPA proposed to require that any products containing methylene chloride intended for paint removal be distributed in containers not less than 55 gallons and to require certain downstream notification requirements regarding the prohibition against manufacturing and distribution. Id . These notification requirements would apply only to "manufacturers ..., processors, and distributors" and not "retailers"; the Proposed Rule defined "retailer" as "a person or business who distributes in commerce a chemical substance, mixture, or article to consumer end users." Id. at 7,526, 7,529.
The Proposed Rule considered several regulatory alternatives to the distribution ban and container-size restrictions:
First, it considered whether the unreasonable risk could be eliminated by warning labels; it concluded that "[p]resenting information about...
To continue reading
Request your trial