NOT FOR PUBLICATION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 APPEALS2

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

- 7 3290

EPA No.

EPA

- HQ

- OPPT

- 2016

- 06543 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

- 06544 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.

Petitioner s challenge two rules promulgated by the Environmental

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

Act (“TSCA” or the “Act” )

— specifically, E PA’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 “r easonably

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 Y ork, sitting by designation.

1 TSCA requires that “ the Administrator

. . . take into consideration information relating to a chemical substance or mixture, including hazard and5

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

remand of those three provisions

. We hold that we have jurisdiction over

Petitioners’ challenge s to t wo 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. Cm t ys

. 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 wasti ng 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 cr iminally penalizes

submission of inaccurate or incomplete information to EPA. All p arties 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 wi th

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 . B oth fall within 40 C.F.R. § 702.37

, which

relates to manufacturer r equest s for risk evaluation s

. 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 informa tion 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 manuf

acturer 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 ad dress Petitioners’ concerns, w e agree with EPA that

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

40 C.F.R. § 702.37

. See Cal

. C mty s

. 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 correct7

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 standin g 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 mean s 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 no t require the

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

information

. C ontrary to Petitioners’ assertion

, t his provision therefore does not

screen or exclude any information from the Agency’s considera t i on

.

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

- priority8

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 preven ts 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, d uring

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. ” Proced ures 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

— cons ider 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

.