to conform its action to the requirements of the APA and the TSCA, plaintiffs argue, the need for de novo review would be obviated. Even though plaintiffs' complaint does raise some questions of a purely legal nature, such as whether the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) precludes regulations under the TSCA of the dioxin isomers present in pesticide products, the ultimate issue in a section 21 action is a question of fact: whether there is a reasonable basis to conclude that an unreasonable risk of injury exits. Plaintiffs, of course, will be allowed to litigate the effect of FIFRA on the TSCA, but resolution of this and other legal questions will not dispose of the ultimate factual issue.
Plaintiffs also seem to believe that EPA's construction of the statute grants greater procedural rights and protections to manufacturers and other regulated industries than it does to citizen groups, since it denies APA review to petition denials but affords such review where a section 6 rule is challenged. This suggestion of bias is unfounded. Citizen groups may well be aggrieved by an action taken under section 6 -- such as where a regulation that the groups favor is repealed or amended -- and in such a case may avail themselves of the rights afforded by the APA. On the other hand, while citizen groups have a right to de novo review if a petition is denied, regulated industries have no equivalent right to contest the granting of a petition. Thus, citizen groups enjoy both a right to de novo review where the agency refuses to act, and a right to APA review when it acts in a manner not to the group's liking. EPA's construction of the statute, therefore, does not strip petitioners of their procedural rights.
Finally, the legislative history plaintiffs rely on does not support their contention that petition denials are subject to audit under the APA. As plaintiffs note, the Conference Report states that section 21 "affords greater rights to a person petitioning for the issuance of a rule or order" than to persons seeking "the amendment or repeal of an existing rule or order." Conference Report at 98. Petitioners seeking issuance of a rule are "entitled to a de novo proceeding" if their petition is denied, but where the agency "denies a petition to amend or repeal an action taken under section 4, 5(e), 6, or 8, the Conference substitute permits review of such denial only under the APA." Id. at 98-99. The Conference Report itself makes no mention of APA review of denials of section 21 petitions, and only refers to such review in connection with petitions seeking to repeal or amend orders. The "greater rights" that section 21 petitioners enjoy are those inherent in a right to de novo review itself. Review of agency action under the APA is of course highly deferential; courts may not substitute their judgment for that of the agency and may only set aside an administrative decision that is arbitrary, capricious or not in accordance with the law. Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42-43, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983). A right to APA review, therefore, is a limited one; those disappointed by agency action bear a heavy burden in attempting to overturn that action. In a de novo proceeding, by contrast, agency action enjoys no presumption of validity nor is the agency itself accorded any special deference. Plaintiffs are entitled to demonstrate that their judgment with respect to a certain matter is superior to that of the agency's and should be substituted for the agency's. Such a showing in the context of an APA action would entitle a party to no relief whatever; in a de novo proceeding, it would discharge the plaintiff's ultimate burden. It thus does no violence to Congress' intent to deny APA review of section 21 petition denials. Plaintiffs are entitled to de novo review, which is precisely the greater protection Congress intended to confer on such petitioners.
For all the foregoing reasons, therefore, the Court will grant defendants summary judgment on Counts II through XIII.
Count IX of the complaint alleges that EPA has failed to perform non-discretionary duties required by the TSCA. EPA denied plaintiffs' request for regulations on the manner of disposal of contaminated wastes based on its determination, pursuant to section 9(b) of the TSCA, that the risks posed by such disposal could be reduced or eliminated under other regulatory authorities. Plaintiffs allege that, having made such a determination, EPA has a non-discretionary duty "to use such other authorities to protect against the risks to health and the environment posed by the disposal of [such] wastes." Complaint at para. 97. Plaintiffs have failed to identify these non-discretionary duties, and, in moving for summary judgment, failed to advance any arguments in support of this claim. On the face of it, an allegation that the agency has a mandatory duty to take unspecified actions under unspecified regulatory authorities is untenable. The agency argues that the TSCA does not impose any such non-discretionary duties. In view of plaintiffs' complete failure even to identify such duties, the court will grant defendants summary judgment on this count as well.
Finally, plaintiffs alleged in Count IX that EPA failed to discharge its mandatory duty to initiate rulemaking under sections 4 and 8. The agency has since issued rules under those sections and plaintiffs agree that their claim is now moot. See Plaintiffs' Opposition at 41.
Accordingly, for all the foregoing reasons, it is this 27th day of March, 1987
ORDERED that defendant Environmental Protection Agency's (EPA's) motion to dismiss be and it hereby is denied; and it is
FURTHER ORDERED that plaintiffs' motion for partial summary judgment on Counts II through IX of the complaint be and it hereby is denied; and it is
FURTHER ORDERED that the cross-motions of defendant EPA and defendant-intervenor Chemical Manufacturers Association (CMA) for partial summary judgment on Counts II through IX be and they hereby are granted; and it is
FURTHER ORDERED that judgment be and it hereby is entered in favor of defendant EPA and defendant-intervenor CMA, and against plaintiffs Environmental Defense Fund and National Wildlife Federation on Counts II through IX of the complaint; and it is
FURTHER ORDERED that the parties are to advise the court on or before April 8, 1987, as to the amount of time needed for additional discovery in this cause and the reasons therefore.