Safer Chemicals, Healthy Families v. U.S. Environmental Protection Agency

The Toxic Substances Control Act (TSCA), as amended in 2016, required the Environmental Protection Agency (EPA) (defendant) to evaluate chemical substances to determine whether they posed unreasonable risks of injury to health or the environment and to regulate chemicals determined to pose such risks. TSCA required the EPA to establish a process for conducting risk evaluations. The EPA did so via issuance of its risk-evaluation rule. The rule stated that chemicals would be evaluated based on their conditions of use, adopting the same definition for conditions of use as in TSCA itself. However, the rule then expressly excluded three activities from a chemical’s condition of use, namely (1) uses not associated with ongoing or prospective manufacturing, processing, or distribution (legacy uses); (2) disposals of chemicals from such legacy uses (associated disposals); and (3) disposals of chemicals that had already occurred (legacy disposals). Multiple environmental groups, including Safer Chemicals, Healthy Families (plaintiffs) filed a petition in the Ninth Circuit seeking review of the EPA’s risk-evaluation rule. They argued, among other things, that when evaluating a chemical’s risks, the EPA was required to consider legacy uses, associated disposals, and legacy disposals, because such activities continued to pose potential risks even if the chemical was no longer manufactured or distributed. They referenced asbestos as an example. The Ninth Circuit considered the petition for review.