NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAFER CHEMICALS, HEALTHY 

FAMILIES; et al., 

Petitioners, 

 v. 

U.S. ENVIRONMENTAL PROTECTION 

AGENCY; ANDREW WHEELER,**

Administrator, United States Environmental 

Protection Agency,

Respondents, 

AMERICAN CHEMISTRY COUNCIL; et 

al., 

Respondents-Intervenors.

No. 17-72260 

MEMORANDUM*

ENVIRONMENTAL DEFENSE FUND, 

Petitioner, 

 v. 

U.S. ENVIRONMENTAL PROTECTION 

AGENCY; ANDREW WHEELER, 

No. 17-72501 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** Andrew Wheeler has been substituted for his predecessor, Scott Pruitt, 

under Fed. R. App. P. 43(c)(2).

FILED

NOV 14 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

Administrator, United States Environmental 

Protection Agency, 

Respondents, 

AMERICAN CHEMISTRY COUNCIL; et 

al., 

Respondents-Intervenors.

ALLIANCE OF NURSES FOR HEALTHY 

ENVIRONMENTS; et al., 

Petitioners, 

 v. 

U.S. ENVIRONMENTAL PROTECTION 

AGENCY, 

Respondent, 

AMERICAN CHEMISTRY COUNCIL; et 

al., 

Respondents-Intervenors.

No. 17-72968 

EPA No. 

EPA-HQ-OPPT-2016-0636 

ALLIANCE OF NURSES FOR HEALTHY 

ENVIRONMENTS; et al., 

Petitioners, 

 v. 

U.S. ENVIRONMENTAL PROTECTION 

AGENCY, 

No. 17-73290 

EPA No. 

EPA-HQ-OPPT-2016-0654 
 3 

Respondent, 

AMERICAN CHEMISTRY COUNCIL; et 

al., 

Respondents-Intervenors.

ENVIRONMENTAL DEFENSE FUND, 

Petitioner, 

 v. 

U.S. ENVIRONMENTAL PROTECTION 

AGENCY; ANDREW WHEELER, 

Administrator, United States Environmental 

Protection Agency, 

Respondents, 

AMERICAN CHEMISTRY COUNCIL; et 

al., 

Respondents-Intervenors.

No. 17-73383 

EPA No. 

EPA-HQ-OPPT-2016-0654 

SAFER CHEMICALS, HEALTHY 

FAMILIES; et al.,

Petitioners, 

 v. 

U.S. ENVIRONMENTAL PROTECTION 

AGENCY; ANDREW WHEELER, 

Administrator, United States Environmental 

Protection Agency, 

No. 17-73390 

EPA No. 

EPA-HQ-OPPT-2016-0654 
 4 

Respondents, 

AMERICAN CHEMISTRY COUNCIL; et 

al., 

Respondents-Intervenors.

On Petition for Review of an Order of the

Environmental Protection Agency

Argued and Submitted May 16, 2019

Seattle, Washington

Before: O’SCANNLAIN and FRIEDLAND, Circuit Judges, and PAULEY,***

District Judge.

Petitioners challenge two rules promulgated by the Environmental 

Protection Agency (“EPA” or the “Agency”) under the Toxic Substances Control 

Act (“TSCA” or the “Act”)—specifically, EPA’s Prioritization Rule and its Risk 

Evaluation Rule (collectively, the “Framework Rules”). Petitioners argue that 

various provisions of the Framework Rules violate TSCA’s requirements, 

including, as relevant here, TSCA’s mandate that EPA consider all “reasonably 

available” information in carrying out the Act.1 EPA seeks voluntary remand on 

*** The Honorable William H. Pauley III, United States District Judge for 

the Southern District of New York, sitting by designation.

1 TSCA requires that “the Administrator . . . take into consideration 

information relating to a chemical substance or mixture, including hazard and 
 5 

three of the provisions that Petitioners have challenged. We grant EPA’s requested 

remand of those three provisions. We hold that we have jurisdiction over 

Petitioners’ challenges to two other information-gathering provisions, but that the 

challenges lack merit.

2

1. “[C]ourts [generally] only refuse voluntarily requested remand when the 

agency’s request is frivolous or made in bad faith.” Cal. Cmtys. Against Toxics v. 

EPA, 688 F.3d 989, 992 (9th Cir. 2012); see also Ethyl Corp. v. Browner, 989 F.2d 

522, 524 (D.C. Cir. 1993) (“We commonly grant [agency remand] motions, 

preferring to allow agencies to cure their own mistakes rather than wasting the 

courts’ and the parties’ resources reviewing a record that both sides acknowledge 

to be incorrect or incomplete.”). 

EPA asks the court to vacate and remand one of the challenged provisions in 

the Petition for Review—40 C.F.R. § 702.31(d), which criminally penalizes 

submission of inaccurate or incomplete information to EPA. All parties agree that 

remand and vacatur of this rule is appropriate. Because we conclude that this 

request is neither frivolous nor made in bad faith, we agree that remand with 

vacatur is appropriate. 

exposure information, under the conditions of use, that is reasonably available to 

the Administrator.” 15 U.S.C. § 2625(k).

2 We resolve the remainder of Petitioners’ claims in a concurrently filed 

opinion. 
 6 

EPA seeks remand without vacatur on two other information-gathering 

provisions challenged by Petitioners. Both fall within 40 C.F.R. § 702.37, which 

relates to manufacturer requests for risk evaluations. Specifically, EPA seeks 

remand on what it calls the “relevancy” provision, which requires manufacturers to 

include certain relevant information in a risk evaluation request (§ 702.37(b)(4)), 

and the “consistency” provision, which requires that such information be consistent 

with certain scientific standards (§ 702.37(b)(6)). As with 40 C.F.R. § 702.31(d), 

we conclude that EPA’s request for remand is not frivolous or made in bad faith. 

EPA asserts that it “believes that [Petitioners’] concerns about these [two]

provisions can be addressed through modifications to the language of the 

regulations,” and it contends that “the unintended consequences of the Relevancy 

and Consistency Provisions that Petitioners allege are not serious,” because “[e]ven 

if a manufacturer were to rely on those provisions to withhold information, EPA 

has independent authority to collect that information or require development of 

new information as needed to conduct its risk evaluations.” Accepting EPA’s 

representation that it can address Petitioners’ concerns, we agree with EPA that 

remand without vacatur is appropriate with respect to the challenged provisions of 

40 C.F.R. § 702.37. See Cal. Cmtys. Against Toxics, 688 F.3d at 992 (holding that 

“[a] flawed rule need not be vacated,” and “‘when equity demands, the regulation 

can be left in place while the agency follows the necessary procedures’ to correct 
 7 

its action” (quoting Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th 

Cir. 1995))).

2. With respect to the two remaining information-gathering provisions on 

which EPA does not seek voluntary remand, the Agency argues that Petitioners 

lack standing to challenge the provisions and that Petitioners’ challenges fail on the 

merits. We hold that we have jurisdiction because Petitioners allege sufficient 

theories of injury to support standing but that the challenges fail on the merits. 

Petitioners challenge 40 C.F.R. § 702.9(b) as erecting a “screen” that 

excludes some “reasonably available information” from EPA’s consideration. 

Petitioners argue that they are injured by this provision because it means that “EPA 

need never notify the public that the information exists, preventing the public from 

assessing it and commenting on its significance.” But 40 C.F.R. § 702.9(b)

describes only the Agency’s “expectation” that it will consider scientific evidence 

“consistent with” the standards in 15 U.S.C. § 2625(h). It does not categorically 

remove any types of evidence from consideration, and it does not require the 

Agency to violate the requirement in TSCA that the Agency consider all relevant 

information. Contrary to Petitioners’ assertion, this provision therefore does not

screen or exclude any information from the Agency’s consideration.

Petitioners also challenge 40 C.F.R. § 702.5(b) and (e), two subsections of a 

provision dealing with EPA’s selection of chemicals as either high- or low-priority 
 8 

substances. Petitioners argue that these provisions violate TSCA because, under 

their terms, EPA will only consider whether it has sufficient information for 

purposes of prioritization, and not for purposes of risk evaluation. But nothing in 

these provisions categorically prevents EPA from obtaining and considering

sufficient information to conduct both a prioritization and a risk evaluation for 

each chemical substance. These provisions notwithstanding, EPA may, during 

prioritization, obtain further risk-related information. In fact, the preamble to the 

Prioritization Rule suggests that EPA will do just that: “EPA expects to consider 

the existence and availability of risk-related information on a candidate chemical 

substance before initiating the prioritization process.” Procedures for Prioritization 

of Chemicals for Risk Evaluation Under the Toxic Substances Control Act, 82 Fed. 

Reg. 33,753, 33,758 (July 20, 2017) (emphasis added). Thus, neither of these 

subsections actually prevents EPA from—or indicates that it will not—consider all 

reasonably available information for purposes of both prioritization and risk 

evaluation. Petitioners’ challenge therefore fails.

EPA’s motion for partial voluntary remand is GRANTED. 40 C.F.R. 

§ 702.31(d) is VACATED AND REMANDED and 40 C.F.R. § 702.37(b)(4) and 

(b)(6) are REMANDED. Petitioners’ remaining challenges to the 

information-gathering provisions are DENIED.