UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

________________________________ 

 ) 

CENTER FOR BIOLOGICAL ) 

DIVERSITY, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civil Action No. 10-2007 (EGS) 

 v. ) 

 ) 

LISA P. JACKSON, et al., ) 

 ) 

 Defendants. ) 

 ) 

MEMORANDUM OPINION 

On August 3, 2010, plaintiffs Center for Biological 

Diversity, Public Employees for Environmental Responsibility, 

and Project Gutpile (collectively, “plaintiffs”) submitted a 

petition (“Rulemaking Petition”) to the United States 

Environmental Protection Agency (“EPA” or “Agency”) seeking the 

regulation of lead shot, bullets, and fishing sinkers under the 

Toxic Substances Control Act, Pub. L. 94-469, 90 Stat. 2003 

(1976) (codified at 15 U.S.C. §§ 2601-2692) (“TSCA” or the 

“Act”). The EPA determined that the Rulemaking Petition 

contained two discrete requests: one for the regulation of lead 

shot and bullets and a second for the regulation of lead fishing 

sinkers. The EPA denied each of those requests in separate 

letters, sent to plaintiffs on August 27, 2010 and November 4, 

2010. 
2 

Plaintiffs filed this action on November 23, 2010 against 

Lisa P. Jackson, the Administrator of the EPA, acting in her 

official capacity, as well as the Agency itself (collectively, 

“federal defendants”), challenging the denial of the Rulemaking 

Petition. The National Shooting Sports Foundation, Inc. 

(“NSSF”), the Association of Battery Recyclers, Inc. (“ABR”), 

and the National Rifle Association of America and Safari Club 

International (collectively, “NRA/SCI”) were permitted to 

intervene as defendants. 

Pending before the Court are the federal defendants’ and 

intervenor-defendant NSSF’s partial motions to dismiss the 

portion of this case related to lead shot and bullets. 

Defendants argue that plaintiffs’ claim seeking an order 

compelling the EPA to conduct a rulemaking regarding the 

regulation of lead shot and bullets should be dismissed (1) for 

lack of subject matter jurisdiction under Rule 12(b)(1) of the 

Federal Rules of Civil Procedure, and (2) for failure to state a 

claim under Rule 12(b)(6). Upon consideration of the motions, 

the responses and the replies thereto, the applicable law, and 

for the reasons set forth below, the Court hereby GRANTS the 

partial motions to dismiss for lack of subject matter 

jurisdiction under Rule 12(b)(1). The Court therefore does not 

reach the analysis under Rule 12(b)(6) as to whether plaintiffs 
3 

have failed to make out a claim that the EPA has the authority 

to regulate lead shot and bullets. 

I. BACKGROUND 

A. Statutory Background 

Congress enacted TSCA in 1976 to prevent unreasonable risks 

of injury to human health or the environment associated with the 

manufacture, processing, distribution in commerce, use, or 

disposal of chemical substances and mixtures. See 15 U.S.C. 

§ 2601(a). Specifically, under Section 2605 of TSCA, if the EPA 

finds that “the manufacture, processing, distribution in 

commerce, use, or disposal of a chemical substance or mixture, 

or that any combination of such activities, presents or will 

present an unreasonable risk of injury to health or the 

environment,” the Agency “shall by rule apply one or more of 

[several listed regulatory requirements] to such substance or 

mixture to the extent necessary to protect adequately against 

such risk using the least burdensome requirements . . . .” Id.

§ 2605(a). 

TSCA defines the term “chemical substance” as “any organic 

or inorganic substance of a particular molecular identity, 

including (i) any combination of such substances occurring in 

whole or in part as a result of a chemical reaction or occurring 

in nature, and (ii) any element or uncombined radical.” Id. 

§ 2602(2)(A). However, the statutory definition of “chemical 
4 

substance” excludes from regulation, by reference to Section 

4181 of the Internal Revenue Code, “pistols, revolvers . . . 

firearms (other than pistols and revolvers), shells, and 

cartridges.” 26 U.S.C. § 4181; see 15 U.S.C. § 2602(2)(B)(v). 

The House Legislative Committee responsible for authoring TSCA 

explained: 

Although the language of the bill is clear on its face 

as to the exemption for pistols, revolvers, firearms, 

shells, and cartridges, the Committee wishes to 

emphasize that it does not intend that the legislation 

be used as a vehicle for gun control. Consequently the 

Administrator has no authority to regulate ammunition 

as an unreasonable risk because it injures people when 

fired from a gun. However, the Committee does not 

exclude from regulation under the bill chemical 

components of ammunition which could be hazardous 

because of their chemical properties. 

H. Rep. No. 94-1341, at 10 (1976) (emphasis added). 

Section 21 of TSCA, the Act’s citizen petition provision, 

allows “[a]ny person [to] petition the Administrator to initiate 

a proceeding for the issuance . . . of a rule” under one of 

several different sections of TSCA. 15 U.S.C. § 2620(a). The 

petition must “set forth the facts which it is claimed establish 

that it is necessary to issue . . . a rule[.]” Id. § 2620(b)(1). 

The Administrator has 90 days after the filing of a rulemaking 

petition to “either grant or deny” the petition; if the 

Administrator denies the petition, the EPA must publish the 

reasons for its denial in the Federal Register. Id. 

§ 2620(b)(3). If the Administrator “denies a petition . . . the 
5 

petitioner may commence a civil action in a district court of 

the United States to compel the Administrator to initiate a 

rulemaking proceeding as requested in the petition.” Id. § 

2620(b)(4)(A). If a petitioner chooses to file a civil action, 

“[a]ny such action shall be filed within 60 days after the 

Administrator’s denial of the petition[.]” Id. 

B. Factual and Procedural Background 

On August 3, 2010, plaintiffs submitted the Rulemaking 

Petition, titled “Petition to the Environmental Protection 

Agency to Ban Lead Shot, Bullets and Fishing Sinkers Under the 

Toxic Substances Control Act.” Federal Defs.’ Mem. Ex. 1; see 

also Compl. ¶¶ 3, 45. According to plaintiffs, although the EPA 

has already declared that lead is a toxic substance and has 

implemented some regulations to reduce lead exposure, lead still 

remains widely encountered by wildlife and distributed in the 

environment from spent lead ammunition and lost lead fishing 

tackle. See Compl. ¶¶ 2, 24. 

On August 27, 2010, the EPA sent a letter to plaintiffs 

indicating that it was “denying that portion of [plaintiffs’] 

petition” dealing with lead shot and bullets, explaining that 

“[a]fter careful review, EPA has determined that TSCA does not 

provide the Agency with authority to address lead shot and 

bullets . . . due to the exclusion found in TSCA § 3(2)(B)(v).” 

Federal Defs.’ Mem. Ex. 2; see also Compl. ¶¶ 4, 50. On 
6 

September 24, 2010, the EPA published in the Federal Register 

its reasons for denying plaintiffs’ request to regulate lead 

shot and bullets. See Compl. ¶¶ 4, 52. The EPA sent plaintiffs 

a second letter on November 4, 2010, stating that the Agency was 

denying plaintiffs’ request to regulate fishing sinkers. Id. 

¶¶ 5, 53. In that letter, the EPA explained to plaintiffs: 

EPA has completed its review of your August 3, 2010, 

petition requesting that the Agency take action under 

[TSCA] to prohibit the manufacture, processing, and 

distribution in commerce of lead shot, bullets, and 

fishing sinkers. EPA denied your request concerning 

lead shot and bullets on August 27, 2010. After 

careful review, EPA has determined you have not 

demonstrated that the remaining action requested in 

your petition -- a uniform national ban of lead for 

use in all fishing gear –- is necessary to protect 

against an unreasonable risk of injury to health or 

the environment, as required by TSCA section 21. The 

petition also does not demonstrate that the action 

requested is the least burdensome alternative to 

adequately protect against the concerns[.] 

Federal Defs.’ Mem. Ex. 3. On November 17, 2010, the EPA 

published in the Federal Register an explanation for its denial 

of the request to regulate lead fishing sinkers. Compl. ¶¶ 6, 

54. 

Plaintiffs filed their complaint on November 23, 2010, 

seeking de novo review of a final decision by the EPA pursuant 

to 15 U.S.C. § 2620(b)(4)(B). On February 8, 2011, the federal 

defendants and intervenor-defendant NSSF filed partial motions 

to dismiss regarding the request to regulate lead shot and 
7 

bullets. The partial motions to dismiss are now ripe for review 

by the Court. 

II. LEGAL STANDARDS 

A. Standard of Review Under Rule 12(b)(1) 

Federal district courts are courts of limited jurisdiction, 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 

(1994), and a Rule 12(b)(1) motion for dismissal presents a 

threshold challenge to a court’s jurisdiction, Haase v. 

Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). On a motion to 

dismiss for lack of subject matter jurisdiction pursuant to Rule 

12(b)(1), the plaintiff bears the burden of establishing that 

the court has jurisdiction. See Lujan v. Defenders of Wildlife, 

504 U.S. 555, 561 (1992). In evaluating such a motion, the 

Court must “accept as true all of the factual allegations 

contained in the complaint,” Wilson v. District of Columbia, 269 

F.R.D. 8, 11 (D.D.C. 2010) (citing Leatherman v. Tarrant Cnty. 

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 

(1993)), and should review the complaint liberally while 

accepting all inferences favorable to the plaintiff, see Barr v. 

Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). Because subject 

matter jurisdiction focuses on the court’s power to hear the 

claim, however, the court must give the plaintiff’s factual 

allegations closer scrutiny when resolving a Rule 12(b)(1) 

motion than would be required for a Rule 12(b)(6) motion. 
8 

Macharia v. United States, 334 F.3d 61, 64 (D.C. Cir. 2003). 

Thus, to determine whether it has jurisdiction over a claim, the 

court may consider materials outside the pleadings where 

necessary to resolve disputed jurisdictional facts. Herbert v. 

Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Faced 

with motions to dismiss under Rule 12(b)(1) and Rule 12(b)(6), a 

court should first consider the Rule 12(b)(1) motion because 

“[o]nce a court ‘determines that it lacks subject matter 

jurisdiction, it can proceed no further.’” Sledge v. United 

States, 723 F. Supp. 2d 87, 91 (D.D.C. 2010) (quoting Simpkins 

v. Dist. of Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997)). 

B. Review of an Agency’s Statutory Interpretation 

A challenge to an agency’s construction of a statute that 

it administers is subject to the standard of review articulated 

in Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984). In 

assessing the validity of an agency’s interpretation of a 

statute, the court must first determine “whether Congress has 

directly spoken to the precise question at issue.” Id. at 842. 

Courts “use ‘traditional tools of statutory construction’ to 

determine whether Congress has unambiguously expressed its 

intent,” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1319 

(D.C. Cir. 1998) (quoting Chevron, 467 U.S. at 843 n.9), 

including an examination of the statute’s text, structure, 

purpose, and legislative history, see Shays v. FEC, 414 F.3d 76, 
9 

105 (D.C. Cir. 2005); Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 

1047 (D.C. Cir. 1997). “If the intent of Congress is clear, 

that is the end of the matter; for the court, as well as the 

agency, must give effect to the unambiguously expressed intent 

of Congress.” Chevron, 467 U.S. at 842-43. If, however, “the 

statute is silent or ambiguous with respect to the specific 

issue,” id. at 843, the court “must next determine the 

deference, if any, [it] owe[s] the agency’s interpretation of 

the statute,” Mount Royal Joint Venture v. Kempthorne, 477 F.3d 

745, 754 (D.C. Cir. 2007) (citing United States v. Mead Corp., 

533 U.S. 218 (2001)). 

“If the agency enunciates its interpretation through 

notice-and-comment rule-making or formal adjudication, [courts] 

give the agency’s interpretation Chevron deference.” Mount 

Royal Joint Venture, 477 F.3d at 754. “[U]nder Chevron, courts 

are bound to uphold an agency interpretation as long as it is 

reasonable--regardless whether there may be other reasonable, or 

even more reasonable, views.” Serono Labs., 158 F.3d at 1321. 

“On the other hand, if the agency enunciates its interpretation 

through informal action that lacks the force of law, [courts] 

accept the agency’s interpretation only if it is persuasive.” 

Mount Royal Joint Venture, 477 F.3d at 754 (citing Mead, 533 

U.S. at 235); see also Christensen v. Harris County, 529 U.S. 

576, 587 (2000) (explaining that if Chevron deference is not 
10 

appropriate, courts may still accord an informal agency 

determination some deference under Skidmore v. Swift & Co., 323 

U.S. 134 (1944); noting that Skidmore deference, however, is 

appropriate “only to the extent that those interpretations have 

the ‘power to persuade’” (quoting Skidmore, 323 U.S. at 140));

Power v. Barnhart, 292 F.3d 781, 786 (D.C. Cir. 2002). The 

“power to persuade” is determined by the thoroughness evident in 

the agency’s consideration, the validity of its reasoning, and 

its consistency with earlier pronouncements. Skidmore, 323 U.S. 

at 140. An agency’s interpretation “may merit some deference 

whatever its form, given the specialized experience and broader 

investigations and information available to the agency, and 

given the value of uniformity in its administrative and judicial 

understandings of what a national law requires[.]” Mead, 533 

U.S. at 234 (internal quotation marks and citations omitted). 

III. ANALYSIS 

Defendants argue that plaintiffs failed to comply with the 

60-day time limit set forth in Section 21 of TSCA, and this 

Court therefore lacks subject matter jurisdiction to entertain 

the portion of this suit related to lead shot and bullets. In 

particular, defendants claim that the EPA’s first letter, dated 

August 27, 2010, which informed plaintiffs that the EPA was 

“denying that portion of [plaintiffs’] petition [related to lead 

shot and bullets],” but “reviewing the request in the petition 
11 

regarding lead fishing sinkers,” see Federal Def.’s Mem. Ex. 2, 

was a formal letter of denial, triggering the statutory period 

of review, see id. at 5. Because the EPA issued this letter of 

denial 88 days before plaintiffs commenced their civil action, 

defendants argue that plaintiffs’ claim with respect to lead 

shot and bullets should be dismissed for lack of subject matter 

jurisdiction.1 See Federal Defs.’ Mem. 5; Intervenor-Def.’s 

Mem. 1, 17. 

 According to defendants, here, the EPA “acted to sever 

Plaintiffs’ two requests into two separate petitions” by issuing 

two letters of denial accompanied by two separate publications 

in the Federal Register. Intervenor-Def.’s Mem. 5, 15-16; see 

                                                             1

 As this Circuit has held, time limits such as the one 

at issue here are considered jurisdictional. See P & V Enters. 

v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 

2008); Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 277 (D.C. 

Cir. 2003) (“[T]he question we ask [in determining whether a 

limitations period is non-jurisdictional], therefore, is . . . 

whether the injury to be redressed is of a type familiar to 

private litigation. . . . A petition for review of an informal 

agency rulemaking would not likely meet the test . . . .”); see 

also W. Va. Highlands Conservancy v. Johnson, 540 F. Supp. 2d 

125, 140-43 (D.D.C. 2008) (holding limitations period for suit 

seeking to compel EPA action to be jurisdictional). Indeed, 

this Court previously has recognized that complying with the 60-

day filing period in TSCA Section 21 is a jurisdictional 

prerequisite, stating that the “‘statutory time limits for 

review of agency action are jurisdictional in nature,’ and are 

therefore strictly construed.” Envtl. Def. Fund v. Thomas, 657 

F. Supp. 302, 306 (D.D.C 1987) (quoting Eagle-Picher Indus., 

Inc. v. EPA, 759 F.2d 905, 911 (D.C. Cir. 1985)). Therefore, 

the expiration of the 60-day time limit is an absolute bar to 

this Court’s jurisdiction and cannot be subject to equitable 

exceptions, including equitable tolling. See W. Va. Highlands 

Conservancy, 540 F. Supp. 2d at 138. 
12 

also Federal-Defs.’ Mem. 7. Defendants further argue that the 

EPA’s interpretation of TSCA Section 21 merits deference. In 

response, plaintiffs contend that defendants’ interpretation of 

the statute is inconsistent with the plain language of TSCA. 

According to plaintiffs, the statute’s plain language makes 

clear that only the denial of a petition--and not the denial of 

a portion of a petition, or one among multiple requests 

contained in a petition--is actionable under Section 21. See 

Pls.’ Opp 3-4. 

A. The Plain Language of Section 21 of TSCA 

The Court’s inquiry must begin with the plain language of 

TSCA Section 21. If the plain language speaks “to the precise 

question at issue” then “that is the end of the matter; for the 

court, as well as the agency, must give effect to the 

unambiguously expressed intent of Congress.” Chevron, 467 U.S. 

at 842-43. 

Section 21 states, in relevant part: 

If the Administrator denies a petition filed under 

this section . . . the petitioner may commence a civil 

action in a district court of the United States to 

compel the Administrator to initiate a rulemaking 

proceeding as requested in the petition. Any such 

action shall be filed within 60 days after the 

Administrator’s denial of the petition[.] 

15 U.S.C. § 2620(b)(4)(A). At issue is the meaning of the term 

“petition” in the statute. 
13 

TSCA nowhere defines the term “petition,” and neither party 

has pointed to anything in the legislative history or context of 

the statute that would clarify the meaning of the term. The 

word “petition” is defined as either: “(1) a formal written 

request made to an official person or organized body; (2) a 

document embodying such a formal written request; or (3) 

something asked or requested.” Merriam-Webster’s Collegiate 

Dictionary 869 (10th Ed. 1998). The EPA appears to have 

interpreted “petition” to mean “request,” and thus, it treated 

the separate requests contained in plaintiffs’ Rulemaking 

Petition as independent petitions. See, e.g., Federal Defs.’ 

Mem. 5, 7-8; see id. Ex. 3 (“EPA denied your request concerning 

lead shot and bullets on August 27, 2010. . . . EPA is denying 

your request for a national ban on lead in all fishing gear.”). 

After denying each request, the EPA made separate publications 

in the Federal Register, as required by Section 21. See Lead in 

Ammunition and Fishing Sinkers; Disposition of TSCA Section 21 

Petition, 75 Fed. Reg. 58,377 (Sept. 24, 2010); Lead Fishing 

Sinkers; Disposition of TSCA Section 21 Petition, 75 Fed. Reg. 

70,246 (Nov. 17, 2010). Plaintiffs disagree with the EPA’s 

interpretation of the plain meaning of Section 21, and seem to 

construe the term “petition” to only mean a formal document 

embodying a written request. See Pls.’ Opp. 3-4. 
14 

Congress has not clarified whether the term “petition” in 

Section 21 means a formal document containing a request, or 

instead, a request contained therein. Indeed, nothing in the 

plain language of Section 21 suggests that Congress contemplated 

the scenario that occurred here--the EPA’s determination that a 

single document contained multiple, discrete requests that 

should be addressed separately. In fact, nothing in the statute 

suggests that Congress even contemplated the scenario in which 

the EPA would find it necessary to grant in part and deny in 

part a rulemaking petition. As defendants point out, 

plaintiffs’ suggestion that Congress “intended that only the 

denial of the petition, and not the denial of a portion of a 

petition, be actionable,” Pls.’ Opp. 4, could potentially create 

an untenable situation for future petitioners. See Federal 

Defs.’ Reply Br. 3-4. For example, if a future petitioner were 

to present two rulemaking requests in a single document, and the 

EPA denied the first request but later granted the remaining 

request, presumably the first denial would be the only denial 

that could trigger the 60-day time period to file a civil action 

under Section 21. See id. If the EPA granted the second 

request more than 60 days after denying the first, the 

petitioner would have no recourse.2

 The Court therefore 

                                                             2

 Defendants argue that the only way to avoid the 

untenable result under plaintiffs’ reading of the statute would 
15 

concludes that because the language of the statute leaves open 

multiple possible interpretations, the plain meaning of the text 

is ambiguous, and the Agency’s interpretation merits deference 

under either Chevron or Skidmore. 

B. The EPA’s Interpretation of Section 21 of TSCA 

Because the EPA is charged with administering TSCA, and 

because the plain meaning of Section 21 is ambiguous, the Court 

must next “determine the deference, if any, [it] owe[s] the 

agency’s interpretation of the statute.” Mount Royal Joint 

Venture, 477 F.3d at 754. However, defendants and intervenordefendant differ on whether the Court should apply Chevron or 

Skidmore deference to the EPA’s determination of how to treat 

multiple requests contained in one document. Compare Federal 

Defs.’ Mem. 9 (“EPA’s interpretation of how section 2620 applies 

to a petition document containing multiple rulemaking requests 

merits deference under Skidmore[.]”), with Intervenor-Def.’s 

Mem. 15 (“The court must defer to any permissible construction 

of a statute the agency is charged with administering, even if 

it is not the construction the court might have given the 

statute, unless Congress has ‘directly addressed the precise 

                                                                                                                                                                                               

be to treat the disposition of the second request as the 

effective “denial” of the first request, even if the second 

request were granted. See Federal Defs.’ Reply Br. 4. This 

would be directly contrary to the language of the statute, which 

states that a denial of a petition triggers the 60-day time 

period for filing under Section 21. See 15 U.S.C. § 

2620(b)(4)(A). 
16 

question at issue.’” (quoting New Jersey v. EPA, 517 F.3d 574, 

581 (D.C. Cir. 2008)(citing Chevron, 467 U.S. at 842-43))). 

Even assuming, arguendo, that the Court must analyze the EPA’s 

interpretation of Section 21 under the Skidmore standard, the 

Court accepts the Agency’s interpretation here as persuasive. 

Here, the EPA chose to address the requests contained in 

plaintiffs’ Rulemaking Petition separately because, according to 

defendants, the products at issue, their use, and the relevant 

legal issues are different. See Intervenor-Def.’s Mem. 15; 

Federal Defs.’ Mem. 7. Indeed, when the EPA denied the two 

separate requests, it did so on the basis of different 

considerations. The EPA’s denial regarding lead shot and 

bullets relied upon the EPA’s finding that it did not have legal 

authority to regulate shot and bullets under TSCA. See Federal 

Defs.’ Mem. Ex. 2. The EPA later considered the request with 

respect to fishing sinkers and determined that the Rulemaking 

Petition had not shown that a ban on lead in fishing sinkers was 

“necessary to protect against an unreasonable risk of injury to 

health or the environment . . . [nor] that the action requested 

is the least burdensome alternative to adequately protect 

against the concerns[.]” Id. Ex. 3. 

Under the Skidmore standard, the persuasiveness of an 

agency’s interpretation is determined by the thoroughness in its 

consideration, the validity of its reasoning, and its 
17 

consistency with earlier pronouncements. Skidmore, 323 U.S. at 

140. The Court finds that the EPA’s actions here demonstrate 

that the EPA thoroughly considered how to address the requests 

contained in plaintiffs’ Rulemaking Petition. As discussed 

above, the EPA determined that it should separately address the 

two requests based on the different legal and factual 

considerations at issue. In the letters dealing with each of 

the two requests, the EPA set forth its reasoning for each 

denial respectively. See Federal Defs.’ Mem. Ex. 2, Ex. 3. 

Indeed, it made two separate publications in the Federal 

Register to clarify that it had denied the requests separately. 

See 75 Fed. Reg. 58,377; 75 Fed. Reg. 70,246. The EPA’s actions 

demonstrate thorough consideration, and the Court is persuaded 

that the Agency’s reasoning was valid. Accordingly, the Court 

finds the EPA’s interpretation of Section 21 of TSCA, and its 

actions here, persuasive. 

Plaintiffs argue that, in the past, the EPA has always 

disposed of rulemaking petitions containing multiple requests at 

the same time, even if some of the requests were granted and 

others denied, thereby prompting only one filing deadline. 

Pls.’ Opp. 5. However, while the EPA’s choice to sever the 

Rulemaking Petition--and address the requests contained therein 
18 

on separate occasions--may be novel,3 the interpretation of TSCA 

Section 21 as requiring petitioners to file a civil action 

within 60 days of each denial is not inconsistent with the 

Agency’s prior actions or pronouncements. 

In addition to the deference afforded to the EPA under 

Skidmore, the Court also notes that an agency “enjoys broad 

discretion in determining how best to handle related, yet 

discrete, issues in terms of procedures and priorities.” Mobil 

Oil Exploration & Producing Southeast v. United Distrib. Cos., 

498 U.S. 211, 230 (1991) (citing Heckler v. Chaney, 470 U.S. 

821, 831-832 (1985); Vt. Yankee Nuclear Power Corp. v. Natural 

Res. Def. Council, Inc., 435 U.S. 519 (1978)); see also Tenn. 

Valley Mun. Gas Ass’n v. Fed. Energy Regulatory Comm’n, 140 F.3d 

1085, 1088 (D.C. Cir. 1998) (“An agency has broad discretion to 

determine when and how to hear and decide the matters that come 

                                                             3

   While the Court is sympathetic to plaintiffs’ 

contention that they are being penalized for the EPA’s novel 

treatment of their petition, the plaintiffs were certainly on 

notice that the EPA had considered its denial of the first 

request formal by virtue of the publication of that first denial 

in the Federal Register, a step explicitly triggered in the 

statute by a denial of a petition. See 15 U.S.C. § 2620(b)(3). 

The Court therefore does not agree with plaintiffs that they 

were justified in awaiting the outcome of the petition as a 

whole by assuming that the proceeding was ongoing. In any 

event, if plaintiffs were unsure if the first letter constituted 

a denial, they could have timely filed a protective civil 

action. See Eagle-Picher Indus., 759 F.2d at 914 (“As a general 

proposition . . . if there is any doubt about the ripeness of a 

claim, petitioners must bring their challenge in a timely 

fashion or risk being barred.”). 
19 

before it.”). The EPA has expertise in handling TSCA petitions, 

and the Court finds that it should defer to the Agency’s 

determination of the most efficient way to address rulemaking 

documents containing multiple requests. See, e.g., Collins v. 

Nat’l Transp. Safety Bd., 351 F.3d 1246, 1253-54 (D.C. Cir. 

2003) (upholding Coast Guard’s interpretation of international 

regulations, based on the agency’s “expertise . . . in deciding 

the most efficient way to administer its licensing and 

discipline procedures”); Pharm. Research and Mfrs. of Am. v. 

Thompson, 259 F. Supp. 2d 39, 71 (D.D.C. 2003) (finding that the 

Secretary of Health and Human Services’ interpretation of a 

statutory scheme under Medicaid had persuasive force under the 

Skidmore framework, based upon the Secretary’s “substantial 

expertise in administering [the statute]”). 

The Court therefore concludes that, because plaintiffs did 

not challenge the EPA’s denial of their request to regulate lead 

shot and bullets within the 60-day time frame provided by TSCA, 

the Court does not have subject matter jurisdiction over the 

portion of this action related to lead shot and bullets. 

Because the Court lacks subject matter jurisdiction, it can 

proceed no further. The Court therefore does not reach the 

issue of whether the EPA possesses statutory authority to 

regulate lead shot and bullets under TSCA. 
20 

IV. CONCLUSION 

Accordingly, defendants’ partial motions to dismiss for 

lack of subject matter jurisdiction under Rule 12(b)(1) are 

hereby GRANTED and plaintiffs’ claim with respect to lead shot 

and bullets is DISMISSED. A separate Order accompanies this 

Memorandum Opinion. 

Signed: EMMET G. SULLIVAN 

 United States District Judge 

 September 29, 2011