EPA Can’t Ignore Past Uses of Chemicals in Risk Reviews

SAN FRANCISCO (CN) – The Environmental Protection Agency cannot ignore “legacy uses” of chemicals when evaluating their impact on public health, the Ninth Circuit ruled Thursday while upholding most new rules for reviewing toxic substances.

The Environmental Protection Agency building is shown in Washington in September 2017. (AP Photo/Pablo Martinez Monsivais)

The Sierra Club and 10 other groups asked the San Francisco-based appeals court to review two rules issued in 2017 that establish the process for prioritizing chemicals for risk assessments.

The EPA issued proposed framework rules in January 2017, which the petitioners say complied with the Toxic Substances Control Act’s requirement that the agency comprehensively evaluate a chemical’s hazards and exposures. But the agency reversed course that spring after the Trump administration appointed a “former chemical-industry advocate” to the EPA, according to court records.

The petitioners claim the revamped rules empower the EPA to ignore the impact of “legacy uses” and “disposals” of chemicals on public health in violation of Toxic Substances Control Act.

In a 58-page opinion Thursday, a three-judge panel found the law requires the EPA to review “conditions of use” for chemicals. The law defines “conditions of use” as “the circumstances, as determined by the administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”

U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee, found the definition “clearly includes uses and future disposals of chemicals even if those chemicals were historically manufactured for those uses.”

Therefore, the panel held that excluding “disposals” and “legacy uses” from consideration in risk assessments violates the law. Legacy uses are defined by the EPA as “circumstances associated with activities that do not reflect ongoing or prospective manufacturing, processing, or distribution.”

However, the panel rejected a related claim regarding the EPA’s exclusion of “legacy disposals,” or the discarding of chemicals no longer being manufactured for a particular use.

The panel held that because the “conditions of use” definition “unambiguously does not reach legacy disposals,” the EPA has authority to exclude those considerations in risk assessments.

The petitioners also challenged the EPA’s eliminating consideration of certain uses of chemicals in risk assessments. They further claimed the new rules empower the EPA to consider individual risks associated with a particular use of a chemical in isolation, rather than evaluating the combined impact of multiple uses of the same chemical. They alleged those exclusions violate the Toxic Substances Control Act.

The panel confirmed that the law requires the EPA to consider all risks associated with a chemical’s uses before it may conclude the substance poses “no unreasonable risk” to the public.

However, the judges also found the petitioners’ claims were based on assumptions as to how the EPA will perform its duties.

“We hold that this challenge is not justiciable because petitioners’ interpretation of what EPA intends to do and petitioners’ resulting theory of injury are too speculative,” Friedland wrote.

Senior U.S. Circuit Judge Diarmuid O’Scannlain and U.S. District Judge William Pauley III, sitting by designation from the Southern District of New York, joined Friedland on the panel. O’Scannlain was appointed by Ronald Reagan, and Pauley is a Bill Clinton appointee.

The petitioners who challenged the EPA’s rules include Safer Chemicals, Healthy Families, Alaska Community Action on Toxics, Environmental Health Strategy Center, Environmental Working Group, Learning Disabilities Association of America, Sierra Club and Union of Concerned Scientists, among others.

An EPA spokesman said Thursday the agency will review the opinion and declined to comment further.

Daniel Rosenberg, director of federal toxics policy with the Healthy People and Thriving Communities Program at the Natural Resources Defense Council, which represented the petitioners in oral arguments last May, applauded the ruling.

“This means the Trump EPA—an agency whose policy favors chemical manufacturers like Dow and Dupont—can’t intentionally blindfold itself,” Rosenberg said. “It can’t pick and choose between uses of chemicals it wants to consider and uses it doesn’t.”

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