                   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.    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

                                    3
 
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

                                  4
 
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

                                 5
 
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



                                 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.   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.

                                 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.”     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

                                 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.   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

                                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 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.
                                                                    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.                                          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
                                                                       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.”                                                                                  Mount Royal Joint

Venture, 477 F.3d at 754.                                                     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.   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

                                16
 
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




                                 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
 
