• Petitions for judicial review of certain rules and orders under TSCA, and civil actions challenging low-priority designations, must be filed within 60 days after EPA finalizes the action.
• Any person may file a lawsuit against EPA to compel it to perform a nondiscretionary duty or against any other person alleged to be in violation of certain types of TSCA rules or orders.

Toxic Substances Control Act (TSCA) section 19 governs judicial review of various Environmental Protection Agency (EPA) actions under the act; whereas, under TSCA section 20, any person may bring a civil suit to restrain a TSCA violation by any party or to petition EPA to issue, amend, or repeal a rule.

Judicial review

In general, section 19 requires that petitions for judicial review of certain rules and orders under TSCA, and civil actions challenging low-priority designations, be filed within 60 days after EPA finalizes the action.

The federal courts of appeals have exclusive jurisdiction over challenges to rules and orders issued under TSCA. For civil actions challenging low-priority designations, jurisdiction is limited specifically to the U.S. Court of Appeals for the District of Columbia Circuit. Review is presumptively limited to the administrative record.

Courts review EPA rules and orders under TSCA pursuant to a specific standard of review set forth in section 19, rather than the more common (and more deferential) “arbitrary and capricious” standard of review under the Administrative Procedure Act. Specifically, section 19 provides that courts must “hold unlawful and set aside” such actions “if the court finds that the rule is not supported by substantial evidence in the rulemaking record taken as a whole.”

Citizens actions

Under section 20, any person may file a lawsuit (commonly called a citizen suit) against EPA to compel it to perform a nondiscretionary duty or against any other person (including government entities) alleged to be in violation of certain types of TSCA rules or orders. Section 20 generally requires a citizen suit plaintiff to give 60 days’ notice of the claims to the EPA Administrator and the alleged violator, if applicable, prior to filing the suit.

A citizen suit may not proceed if EPA or the Department of Justice is already “diligently prosecuting” an administrative or judicial proceeding against the alleged violator. However, the citizen who has given notice of the claims may intervene as a matter of right in the enforcement proceeding if it is initiated after notice is given. If a citizen suit is successful, the court may require the violator to take actions to correct a violation and may impose civil penalties on the violator.

In addition, any person may petition EPA to issue, amend, or repeal a rule under the testing, reporting, or restriction sections of TSCA. The agency has 90 days to respond to the petition. If no action is taken or a petition is denied, the party has the opportunity for judicial review in the U.S. District Court to compel the agency to undertake the requested action.