ELR Citation: ELR 21105
No(s). s. 88-5325, -5326 (D.C. Cir. Jul 27, 1990)

The court rules that a party challenging the Environmental Protection Agency's (EPA's) denial of a citizens' petition under §21 of the Toxic Substances and Control Act (TSCA) may not simultaneously seek judicial review under §21 and the Administrative Procedure Act (APA). Environmental groups petitioned EPA under TSCA §21 to issue rules to curtail releases of dioxins and furans. After EPA denied the petition, the groups filed suit under the de novo review provisions of §21 and under the APA. The district court rejected the groups' APA claims and later entered a consent decree settling the §21 claims. The court first notes that the APA's presumption of reviewability applies in determining whether an agency action is subject to review, but not to the procedure by which the review is to occur. Simultaneous review under the APA and §21 would be inconsistent with the objective of §21 to produce a record enabling EPA to make an informed decision on its denial of a petition. The two remedies are incompatible in several major respects. For example, a §21 plaintiff is entitled to de novo review of a petition for issuance of a new rule, while APA review generally must be conducted on the administrative record. Further, review under the two remedies could produce inconsistent rulings and would waste judicial resources. The court holds that the saving clause in §21(b)(5) does not preserve the right to APA review. Finally, the court notes that the requirement in §21 that EPA publish in the Federal Register its reasons for denying a petition is irrelevant to the issue of whether review is available under the APA and §21.

[The district court's decision is published at 17 ELR 20724.]

Counsel for Appellants
Mark Van Putten
National Wildlife Federation
Great Lakes National Resources Center
802 Monroe St., Ann Arbor MI 48104
(313) 769-3351

Karen Florini
Environmental Defense Fund
1616 P St. NW, Washington DC 20036
(202) 387-3500

Counsel for Appellees
David C. Shilton, Robert L. Klarquist, Fred R. Disheroon
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 517-2000

Alan Carpien
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7217

Before: WALD, Chief Judge, RUTH BADER GINSBURG, Circuit Judge, and ROBINSON, Senior Circuit Judge.