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INDUSTRIAL SAFETY EQUIP. ASSN. v. EPA

February 27, 1987

Industrial Safety Equipment Association, Inc., et al., Plaintiffs,
v.
Environmental Protection Agency, et al., Defendants



The opinion of the court was delivered by: HOGAN

 Thomas F. Hogan, United States District Judge

 This action was filed on June 10, 1986, seeking review under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, et seq., of a report published jointly in April, 1986 by the Environmental Protection Agency ("EPA") and the National Institute for Occupational Safety & Health ("NIOSH") entitled A Guide to Respiratory Protection for the Asbestos Abatement Industry ("Report"). Among other things, the Report recommends industry use of only two of the 13 federally-certified types of asbestos-protection respirators. Plaintiffs are Industrial Safety Equipment Association, Inc. ("ISEA"), a national association of industrial safety equipment manufacturers, and three corporate manufacturers of federally-certified asbestos protection respirators. *fn1" Plaintiffs contend that defendants, *fn2" through issuance of the Report, have unlawfully failed to comply with the requirements of the APA, and have abrogated plaintiffs' constitutional due process rights. Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(6), contending that the Report is not "agency action," or "final" agency action, and that no due process "deprivation" has occurred.

 BACKGROUND

 The EPA and NIOSH have statutory responsibility to regulate the presence of asbestos in the work environment under the Occupational Safety & Health Act of 1970 ("OSH Act"), 29 U.S.C. § 651, et seq. (1982), and to implement procedures to abate workplace hazards from asbestos exposure. *fn3" The present OSHA standard establishing the permissible exposure level ("PEL") for asbestos was set in 1976 after notice and comment, at 2 fibers per cubic centimeter. 29 C.F.R. § 1910.1001(b). OSHA is in the process of revising this standard, to reduce the PEL to a proposed level of between.2 and.5 fibers per cubic centimeter. This rulemaking proceeding is ongoing, and is not challenged by plaintiffs.

 Applicable regulations set forth abatement procedures for employers to meet the PEL standards, and permit the use of respirators in only limited circumstances. See 40 C.F.R. § 763.121(d)(1). In general, respirators may be used in emergencies or by employees who are removing existing asbestos structural hazards, where preferred methods of abatement are technically not feasible. Id. When permitted, a respirator must be selected from among those formally approved by the Mine Safety & Health Administration ("MSHA") or NIOSH. 40 C.F.R. § 763.121(d)(2). MSHA and NIOSH issue certificates of approval in accordance with procedures set forth in 30 C.F.R. § 11.30, et seq. Certificates are issued only for respirators that have been fully tested and determined to meet the minimum regulatory requirements. Id. at § 11.30(a). The certificate must contain any restrictions or limitations on the respirator's use, id. at § 11.30(b), but there is no provision for specific graded ranking of certified respirators. MSHA and NIOSH may revoke any certificate for cause, but no regulations establish procedures for such revocation. Id. at § 11.34.

 NIOSH and EPA produced the Report to provide a hitherto unavailable comprehensive guide to the selection and use of respiratory protection equipment for the asbestos abatement industry. Three factual determinations are set forth that underlie the NIOSH and EPA recommendations in the Report:

 
(1) there is no known risk-free level of exposure to asbestos, an established human carcinogen;
 
(2) maximum respiratory protection should be provided to workers engaged in asbestos abatement operations, in all situations; and
 
(3) "filter-type" respirators, which screen the ambient atmosphere for contaminants, do not provide as high a degree of protection from asbestos particles as do respirators that supply clean pressurized air from a protected source.

 See Report, p. 2. The Report lists all types of available certified respirators, and notes that all of them may be used under existing regulations. In unequivocal language, however, the Report encourages the use of only two types of respirators, which EPA and NIOSH have determined provide maximum protection.

 Plaintiffs, all of whom manufacture various types of certified respirators, contend that the Report is an unlawful rulemaking changing the PEL and respirator requirements, and that it has in effect revoked the certification of some of their respirators, without required procedures and in violation of their fifth amendment due process rights. Defendants assert that the Report is neither "agency action" nor "final agency action," and that no due process violation has occurred. The Court agrees that the issuance of the Report is not reviewable agency action, and shall dismiss claims seeking APA review, pursuant to Rule 12(b)(6). Claims concerning the unlawful revocation of certification, and related due process deprivation are also appropriately subject to dismissal, based upon the facts as alleged.

 DISCUSSION

 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must dismiss a complaint that fails to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). In reviewing a complaint under this standard, the court must presume all factual allegations of the complaint to be true, and must draw all reasonable inferences in favor of the non-movant. See Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The ...


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