The Regulations on Consent Agreements

The EPA does not need to find that any of the preconditions to issuance of a 4 rule exist before entering into a consent order. When the EPA determines that a consent agreement could be feasible, it publishes a notice in the Federal Register asking industry to participate.  

EPA s evident de facto findings of such a necessity. It is the substance not the form of agency action that is relevant upon review. 

The Court catalogued the other TSCA provisions that are triggered by the issuance of a test rule, and found that these would not be triggered by a voluntary agreement. Chief among them are  

The Court found that there simply could be no substitute for rulemaking. After this decision, it seems quite clear that the EPA is not entitled to rely on consent agreements, and must proceed to formal rulemaking to obtain i 4 test data. 

60(a)(13). In the preamble to the Interim Final Rule still in effect, the EPA stated that it is a fundamental principle that parties who voluntarily accept their requirements waive their right to challenge the legal justification for those requirements. 51 Fed. Reg. 23076 (June 30, 1986). However, this requirement seems to be based on the practical obstacles of NRDC v. EPA instead of a philosophical preference. 

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