CENTER FOR BIOLOGICAL DIVERSITY et al v. JACKSON et al

Filing 36

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on September 29, 2011. (lcegs6)

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.

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

2

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.
§ 2601(a).

See 15 U.S.C.

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.”
§ 2602(2)(A).

However, the statutory definition of “chemical
3

Id.

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.
§ 2620(b)(3).

If the Administrator “denies a petition . . . the
4

Id.

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.”
2620(b)(4)(A).

Id. §

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.”
also Compl. ¶¶ 3, 45.

Federal Defs.’ Mem. Ex. 1; see

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.
5

On

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.
¶¶ 5, 53.

Id.

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

6

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.
504 U.S. 555, 561 (1992).

See Lujan v. Defenders of Wildlife,

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.
7

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,
8

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.”
Royal Joint Venture, 477 F.3d at 754.

Mount

“[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
9

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.
at 140.

Skidmore, 323 U.S.

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
10

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 60day 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.
11

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.

12

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.

13

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.
Defs.’ Reply Br. 3-4.

See Federal

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
14

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.”
Venture, 477 F.3d at 754.

Mount Royal Joint

However, defendants and intervenor-

defendant 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).
15

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.
Federal Defs.’ Mem. 7.

See Intervenor-Def.’s Mem. 15;

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.
Defs.’ Mem. Ex. 2.

See Federal

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
16

consistency with earlier pronouncements.
140.

Skidmore, 323 U.S. at

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

17

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.”).

18

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.

19

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

20