Id. at 452-53 (internal citations and footnotes omitted).
After examining the FACA's legislative history, the Court concluded that the phrase "or utilized" was added to FACA's definition of an advisory committee "simply to clarify that FACA applies to advisory committees established by the Federal Government in a generous sense of that term . . . ." Id. at 462 (emphasis added). The Court therefore rejected the argument that an agency "utilizes" a committee within the meaning of the FACA if it "makes use of" the committee's work product. Instead the Court looked to whether the committee had been formed "at the Federal Government's prompting" and was amenable to strict management by agency officials." Id. at 457-58.
A similar conclusion was reached in Washington Legal Found. v. United States Sentencing Comm'n, 305 U.S. App. D.C. 93, 17 F.3d 1446 (D.C. Cir. 1994) when a plaintiff sought access under the FACA to the deliberations and documents of a committee advising the Sentencing Commission, an independent agency within the Judicial Branch. The Advisory Group included two Department of Justice employees who "played an important role" in the Group's work, 17 F.3d at 1450, and, as the Court noted, the Justice Department, "which [was to] enforce these new Guidelines, [had] every reason to be interested, and to participate, in the Advisory Group's deliberations," id. at 1451.
Notwithstanding the Justice Department's active participation in and inevitable use of the Advisory Group's deliberations and work product, the Court of Appeals flatly rejected the argument that the Justice Department "utilized" the Group within the meaning of the FACA. The Court explained that, in order to demonstrate that an agency has "utilized" a committee, a plaintiff must demonstrate that the agency had "actual management or control of the advisory committee." Id. at 1450. This, the Court noted, is a "stringent standard, denoting something along the lines of actual management or control of the advisory committee." Id. Merely demonstrating influence over a committee's affairs is insufficient, because "influence is not control." Id. at 1451. See also Sofamor Danek Group, Inc. v. Gaus, 314 U.S. App. D.C. 43, 61 F.3d 929, 936 (D.C. Cir. 1995); Food Chemical News, 900 F.2d at 333.
Public Citizen and Washington Legal Foundation thus rejected the very claim that the plaintiffs are advancing here: that the FACA is triggered by an agency's mere use of a private group to obtain advice. Not only do the undisputed facts demonstrate that the industry group is not so closely tied to the defendant as to be amenable to strict management by EPA officials and that the group is therefore not being utilized by the defendant within the meaning of the FACA, but the group is so amorphous that it can hardly be called a "committee" at all.
As a threshold matter, the defendant has not "used" the industry proposal for any purpose at all. EPA is actively considering the proposed enforceable agreement and has met with various interested parties -- including the plaintiffs -- regarding its contents. However, as of now, it has made no decision to actually pursue an enforceable agreement approach for regulating CKD waste, and in fact is exploring alternative regulatory approaches.
However, even if the defendant does ultimately "use" the proposed enforceable agreement, that does not transform the industry group into a federal advisory committee. First, the cement industry, not EPA, broached the issue of an "enforceable agreement" regarding the regulation of CKD. Cement industry officials wrote draft CKD management practices, forwarded a draft enforceable agreement to EPA, and then requested a meeting with EPA to discuss management practices and the concept of an agreement. Thus, it cannot be said that the group was "established" at the prompting of the defendant. In short, there is no "Government-formed advisory committee" here. Food Chemical News, 900 F.2d at 332-33.
Moreover, the lack of EPA management or control over subsequent meetings and the cement industry's efforts to draft an enforceable agreement, indicates that the ad hoc cement industry group was not "utilized" by EPA. Logistical control over the meetings does not translate into substantive control over the industry group. Nor does the fact that the defendant informed the group of the various issues that would have to be addressed in any proposed enforceable agreement before it would be considered. See Consumers Union of the United States, Inc. v. HEW, 409 F. Supp. 473, 476-77 (D.D.C. 1976) (FACA did not apply to agency-industry meetings concerning industry group's own proposal for a nonregulatory cosmetic testing program), aff'd, 179 U.S. App. D.C. 280, 551 F.2d 466 (D.C. Cir. 1977). EPA merely informed the group of technical, legal, and enforcement issues that any enforceable agreement would need to address before it could be implemented. This and the administrative arrangements undertaken by EPA with regard to its meetings with the industry groups stops short of anything close to utilization, i.e., actual management or control of the group.
Furthermore, as the Court of Appeals recently observed, "in order to implicate the FACA, the President, or his subordinates, must create an advisory group that has, in large measure, an organized structure, a fixed membership and a specific purpose." Association of American Physicians and Surgeons v. Clinton, 302 U.S. App. D.C. 208, 997 F.2d 898, 914 (D.C. Cir. 1993). The industry group has neither a fixed membership, in terms of the industry representatives who attended the various meetings with EPA officials, nor and an organized structure. Rather, the so-called "industry group" amounts to little more than two private trade associations with no specific purpose other than to represent the broad interests of their members. In sum, the "industry group" simply does not have the requisite formality and structure of an advisory committee. Accordingly, because the industry group was not established nor is it utilized within the meaning of the FACA, and because it lacks the structure of an advisory committee, the Court shall grant the defendant's Motion for Summary Judgment.
B. The APCA and CKRC are entitled to intervene because they have an interest in the outcome of the instant litigation which is not adequately represented by the defendant.
Federal Rule of Civil Procedure 24 (a) allows for intervention as of right in two situations:
(1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's interest is adequately represented by existing parties.
FED. R. CIV. P. 24(a). The first subsection is inapplicable as the FACA does not provide a right to intervene and the movants do not identify any other statute conferring upon them a right of intervention. However, because the movants have demonstrated that the outcome of this case threatens to impair or impede its ability to protect its legitimate interests, they are entitled to intervention as of right under subsection 2.
Were the plaintiffs to prevail on the merits of this case and obtain the relief they seek, the defendant would be enjoined from relying in any way on the product of its meetings with various industry representatives. In addition to thwarting otherwise useful interaction between government and nongovernmental groups, this would have the result of rendering useless not only the efforts of the defendant, but the substantial good faith efforts of the cement industry to develop the enforceable agreement and the proposed CKD management practices that are the subject of the plaintiffs' Complaint. As the movants note, their position with respect to the underlying regulatory issues does not mirror that of the defendant. Moreover, the movants and the defendant are not similarly situated with respect to the FACA question in this case; it is the movants who not only initiated but have borne the primary expense associated with the development of the proposed enforceable agreement.
Because any injunctive relief would likely eviscerate their substantial work product, and because it would establish a rule of law unfavorable to them, the Court concludes that the movants are entitled to intervene. Natural Resources Defense Council v. Environmental Protection Agency, 99 F.R.D. 607, 609 (D.D.C. 1983) (industry groups entitled to intervene under Rule 24(a)(2) in FACA case where their efforts over a protracted period of time could be "nullified" if the relief the plaintiffs sought were granted).
Alternatively, even if intervention as of right were not warranted, permissive intervention would be. Federal Rule of Civil Procedure 24(b) provides for intervention in two situations:
(1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common.
FED. R. CIV. P. 24(b). Permissive intervention lies within the discretion of the Court and "in exercising its discretion the Court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Id. The Court concludes that the movants are entitled to permissive intervention.
The movants' defenses to the plaintiffs' claims have both questions of law and fact in common with the main action, i.e., whether the defendant's meetings with the movants violated the FACA. Furthermore, because the Court concludes that their intervention would not unduly delay the adjudication of the rights of the original parties, the Court concludes that the movants are entitled to permissive intervention, as well as intervention as of right under Rule 24(a), as previously indicated.
Upon careful consideration of the parties' and the movants' pleadings, the entire record herein, and the law applicable thereto, the Court shall enter an Order of even date herewith consistent with the foregoing Memorandum Opinion granting the defendant's Motion for Summary Judgment, denying the plaintiffs' Motion for Summary Judgment, and granting the movants' Motion to Intervene.
February 27, 1996
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Upon careful consideration of the parties' and the movants' pleadings, the entire record herein, and the law applicable thereto, and for the reasons stated in the Court's Memorandum Opinion entered this date in the above-captioned, it is, by the Court, this 27th day of February 1996
ORDERED that the defendant's Motion for Summary Judgment shall be, and hereby is GRANTED; and it is
FURTHER ORDERED that the plaintiffs' Motion for Summary Judgment shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the movants' Motion to Intervene pursuant to Federal Rule of Civil Procedure 24 shall be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the intervenors' Motion for Summary Judgment shall be, and hereby is, DISMISSED AS MOOT.
February 27, 1996
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE