Intervenors in making their constitutional arguments misread the format of TSCA and this misreading causes them to read certain powers to the judiciary in Section 2620(b)(4) that are not there. A possible factor in misreading TSCA is due to the type of relief prayed for in plaintiffs' complaint. Plaintiffs' prayer for relief goes far beyond requesting the initiation of rulemaking procedure that is provided for in Section 2620(b)(4). Plaintiffs' complaint seeks a "trial de novo " on the issues of, inter alia, (1) determining the name and nature of every business in southeast Chicago which uses or emits any of the identified substances or mixtures; and (2) compelling these businesses to begin testing to determine the effect of these substances (complaint, pp. 7-9).
It is clear from reading the entire Act that the EPA can initiate rulemaking proceedings under Section 2603 whenever it likes without making any findings whatsoever. In order to do so however it must abide by the requirements of Title, Section 553, of the APA, as well as 15 U.S.C. § 2603(b)(5). Section 553 of APA provides for notice and other procedures and Section 2603(b)(5) provides for oral presentations of data, views or arguments and the opportunity for written submission by interested parties. Also a transcript must be made of any oral presentation and the administrator must make and publish at the time the rule is promulgated the findings required in paragraph 1(a) or 1(b) of Section a of Section 2603.
Section 2603(a)(1) provides that if the administrator does make certain findings that he must promulgate rules requiring testing. This section makes clear that the administrator can only require testing if he makes the specific findings set forth in Section 2603(a)(1)(a)(i), (ii) and (iii). Whatever rule is adopted pursuant to Section 2603 is then subject to administrative review under Section 2618, with appeal directly to the Circuit Court of Appeals as provided.
On the other hand, Section 2620 was adopted by Congress to allow citizens to prod the EPA into action by petitioning for the initiation of rulemaking procedure which must be carried out under the APA and Section 2603(b)(5) procedures. If the petition is denied or ignored the citizens may appeal to the district court for de novo review of the denial or inaction. Since there is no record for the court to review Congress provided for de novo review (Senate Report at p. 29.) If a petitioner can satisfy the court by a preponderance of the evidence that the action requested in the petition conforms to the requirements of the Act, the court shall order the petitioner to initiate the rulemaking procedures requested by the petitioner (id.). However initiating rulemaking proceedings does not in anyway require the adoption of rules. In fact unless the EPA makes the findings required by Section 2603(a)(1) it cannot adopt a rule requiring testing. These findings can only be made by the EPA; not by the court. Permitting a court to require the executive to initiate rulemaking upon judicial findings has never been held to be a violation of the separation of power. Wisc. Electric Power Co. v. Costle, 715 F.2d 323, 328 (7th Cir. 1983); WWHT, Inc. v. FCC, 211 U.S. App. D.C. 218, 656 F.2d 807, 1818 (D.C. Cir. 1981). If the Act permitted the court to substitute its judgment and promulgate the final rule, a significant intrusion into executive power would exist but that is not the case here. It is the duty of the federal court to construe a statute in order to save it from constitutional infirmities. Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 2614, 101 L. Ed. 2d 569 (1988).
Accordingly, we hold that 15 U.S.C. § 2620 in a proper case permits a federal court to require that the EPA initiate rulemaking procedures and is constitutional.
IT IS SO ORDERED.
DATED: January 10, 1989