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EDF v. THOMAS

March 30, 1987

Environmental Defense Fund, et al., Plaintiffs,
v.
Lee M. Thomas, Administrator, Environmental Protection Agency, et al., Defendants; Chemical Manufacturers Association, Defendant-Intervenor



The opinion of the court was delivered by: GREEN

 JOYCE HENS GREEN, United States District Judge

 Plaintiffs Environmental Defense Fund (EDF) and National Wildlife Foundation (NWF) instituted this suit under section 21 of the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2620, and the Administrative Procedure Act (APA), 5 U.S.C. § 701, seeking review of defendant Environmental Protection Agency's *fn1" (EPA's) denial of their petition for rulemaking under the TSCA. The parties, along with defendant-intervenor Chemical Manufacturers Association (CMA), have cross-moved for partial summary judgment on eight of the nine counts set out in plaintiffs' complaint, and defendant has, in addition, moved to dismiss the case in its entirety. This case and the pending motions raise several difficult questions of first impression. For the reasons set forth below, the court will deny defendant's motion to dismiss, but will enter partial summary judgment in favor of defendants and defendant-intervenor.

 I

 Congress enacted the TSCA in 1976 in an effort to provide a comprehensive framework for regulating toxic chemicals. Although prior environmental legislation touched on certain aspects of toxic substance control, Congress found that federal laws were "fragmented and inadequate," and that this piecemeal approach left "conspicuous gaps . . . in the protections provided by such laws." H.R. Rep. No. 1341, 94th Cong., 2d Sess. 6 (1976) (House Report). In particular, Congress sought a regulatory approach that would prevent damage to human health and the environment, rather than simply respond to such damage after it occurred. Id. Thus, section 6 of the TSCA grants EPA authority to apply a wide variety of controls on the manufacture, processing, distribution, use or disposal of chemical substances for which there is a "reasonable basis to conclude" that such activity "presents or will present an unreasonable risk of injury to health or the environment." 15 U.S.C. § 2605(a). These controls range from outright prohibitions on the production, processing or distribution of such chemicals to regulations governing the labeling of toxic substances. Id. Section 4 of the Act permits EPA to mandate testing of any chemicals or substances if it finds that those substances "may present an unreasonable risk of injury to health or the environment" and that "there are insufficient data and experience" upon which to predict their effects. Id. § 2603(a)(1)(A). Under section 8, EPA may also impose record-keeping and reporting requirements on manufacturers and processors of such chemicals. Id. § 2607.

 Congress also provided for citizen participation in the administration and enforcement of the Act. Section 21 authorizes citizens to petition EPA for the initiation of rulemaking proceedings under any of the aforementioned sections. Id. § 2620(a). The agency must either grant or deny the petition within 90 days of its filing. Id. § 2620(b)(3). Where a petition is granted, EPA must promptly commence proceedings under the appropriate section. Id. In cases where the agency denies the petition, it must publish its reasons for the denial in the Federal Register. Id. Where a petition is denied, or where EPA fails to respond to a petition within the 90-day period, the petitioner may seek de novo review of the denial in federal district court. Id. § 2620(b)(4). Such review must be sought within 60 days from the date of the denial, or, in cases where EPA fails to respond within 90 days, within 60 days from the expiration of the 90-day period. Id. These rights to petition for rulemaking and to de novo review of a petition denial are "in addition to, and not in lieu of, other remedies provided by law." Id. § 2620(b)(5).

 In the present case, plaintiffs filed a petition for rule-making to "prevent and reduce environmental contamination by dioxins and dibenzofurans." Complaint, Exhibit A. The petition requested regulation of a generic class of dioxin and dibenzofuran isomers, identifying at least 28 such isomers which, based on structural similarities to dioxin and furan isomers of known and extremely high toxicity, warranted action as a "category" under FSCA. *fn2" Plaintiffs criticized EPA's present regulatory approach to these chemicals and petitioned the agency for rule-making under section 6 to limit concentrations of the dioxins and furans in products, require labeling of all products contaminated by such chemicals, and control the manner and method of disposal of wastes contaminated by dioxins and furans. In addition, plaintiffs sought imposition of record-keeping and reporting requirements pursuant to section 8 in order to monitor the generation, exposure and health effects of the chemicals. Finally, the petition requested that, where the agency believed it lacked sufficient information to make the threshold findings necessary for issuance of rules under section 6, it would issue rules under section 4 to gather the needed information.

 EPA responded to the petition on January 22, 1985, 50 Fed. Reg. 4426 (Jan. 30, 1985), denying all requests for rulemaking under section 6. The agency stated that it lacked critical information to decide whether all of the dioxins and furans presented an unreasonable risk such that contamination limits and labeling requirements were warranted, and concluded that regulation of the disposal of contaminated wastes was more appropriately accomplished under other federal laws. In view of its finding that it lacked sufficient information on the risks posed by the isomers of concern, the agency granted plaintiffs' request for record-keeping requirements under section 8, and initiated proceedings under section 4 in order to obtain data concerning exposure from the manufacture, use and disposal of contaminated chemicals. These section 4 proceedings resulted in the issuance of a proposed rule on December 19, 1985. 53 Fed. Reg. 51794 et seq.

 Plaintiffs filed suit on March 25, 1985, seeking review of the agency's denial of their petition.

 II

 EPA moves to dismiss this case in its entirety on the grounds that plaintiffs failed to initiate suit within the statutorily prescribed period for seeking judicial review and that, in any event, EPA has granted plaintiffs the alternative relief they sought in their petition, thus mooting this action. The court addresses each of these contentions in turn.

 Defendant first challenges the court's jurisdiction to entertain this suit, alleging that plaintiffs failed to comply with the jurisdictional deadline for filing their complaint set out in section 21 of the TSCA. Section 21 provides that any action seeking review of a denial "shall be filed within 60 days after the Administrator's denial of the petition or, if the Administrator fails to grant or deny the petition within 90 days after filing the petition, within 60 days after the expiration of the 90-day period." 15 U.S.C. § 2620(b)(4)(B). Plaintiffs filed their petition on October 22, 1984. EPA responded on January 22, 1985, 92 days after the petition was filed. Plaintiffs then commenced suit on March 25, 1985, 62 days after EPA issued its response and 64 days after the expiration of the 90-day response period. Defendant argues that the filing requirements of section 21 are jurisdictional prerequisites to suit and that plaintiffs failed to satisfy those requirements. Under the terms of section 21, the expiration of the 90-day period set the 60-day filing period in motion on January 20, 1985, and plaintiffs were therefore obliged to institute this action no later than March 21, 1985. Their failure to do so deprives this court of subject mater jurisdiction over the action.

 The court recognizes, of course, that "statutory time limits for review of agency action are jurisdictional in nature," and are therefore strictly construed. Eagle-Picher Industries v. EPA, 759 F.2d 905, 911 (D.C. Cir. 1985) (footnote omitted). Plaintiffs argue, however, that Rule 6(a) of the Federal Rules of Civil Procedure governs the calculation of section 21's 90- and 60-day periods, and that under the rule their suit was timely filed. Rule 6(a) provides in pertinent part that:

 
in computing any period of time prescribed or allowed . . . by any applicable statute . . . the last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, . . . in which event the period runs until the ...

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