Not what you're
looking for? Try an advanced search.
TOZZI v. EPA
June 29, 2001
JIM J. TOZZI, ET AL. PLAINTIFFS,
V.
EPA, ET AL. DEFENDANTS
The opinion of the court was delivered by: Lamberth, District Judge.
A. Statutory and Regulatory Scheme
The PRA was enacted to reduce and streamline the administrative burden
created by superfluous paperwork resulting from government information
collection requests. 44 U.S.C. § 3501. Another purpose of the PRA
is to enhance the public benefit of the information collection process.
Id. The cornerstone of the PRA is the ICR, which allows the OMB to
control the production and flow of paperwork. Under the PRA, the OMB is
granted the authority to determine the necessity of an ICR. The OMB must
determine whether the ICR request is necessary to enable the agency to
function and of public utility. Id. at § 3508. Pursuant to the PRA,
a federal agency may not conduct an information collection request unless
the OMB has approved the ICR and issued a control number. Id. at §
3507(a)(2), (3).
Where a federal agency is proceeding through rulemaking, the ICR may be
contained in the proposed rule, which satisfies the agency's public
comment duty under the PRA. Id. at § 3506(c)(2)(B). Before the
notice of proposed rulemaking is published in the Federal Register, the
agency must send the proposed rule, the ICR, and any OMB information
requests to the OMB. Id. at § 3507(d)(1)(A). Thereafter, the OMB
has 60 days to file comments to be included in the public record for
rulemaking. Id. at § 3507(d)(1)(A). During this time, the OMB may
disapprove the ICR if it deems the agency's response to be inadequate or
unreasonable, determines that the final rule substantially modified the
proposed ICR, or finds that the agency failed to provide information
requested by the OMB. Id. at § 3507(d)(4). The decision of the OMB
to approve or not act upon an ICR contained in an agency rule is not
subject to judicial review. Id. at § 3507(d)(6).
The EPCRA was enacted to protect public health and the environment by
arming communities with the right to know what chemicals manufacturing
facilities are emitting into the air, land, and water, and by giving
businesses a public relations incentive not to pollute.
42 U.S.C. § 11023. In this pursuit, the EPCRA gives the EPA
substantial authority to add new chemicals to the Toxic Release Inventory
(hereinafter "TRI") list. Id. The Act, itself, specifically requires
facilities subject to the statute to complete a toxic chemical release
form for each designated chemical released in excess of the threshold
amount. Id.
B. Facts and Procedural History
The defendants are the EPA, the EPA Administrator, the Assistant
Administrator for Administration and Resource Management, the Assistant
Administrator for Enforcement and Compliance Assurance, and the OMB.
§ 313 of the EPCRA requires designated facilities using a toxic
chemical in specified amounts to report the annual quantity used above a
certain threshold. 42 U.S.C. § 11023. On October 29, 1999, the EPA
issued a new Final Rule under § 313 of the EPCRA, "Persistent
Bioaccumulative Toxic (PBT) Chemicals; Lowering of Reporting Thresholds
for Certain PBT Chemicals; Addition of Certain PBT Chemicals; Community
Right to Know Toxic Chemical Reporting." 64 Fed. Reg. 58666. The new
Final Rule added dioxin and seventeen related dioxin-like compounds to
the TRI list. During the notice and comment period, prior to the
promulgation of the new TRI rule, the EPA sought to collect information in
relation to it. Information collected in regards to the agency action
has to comply with the requirements of the PRA.
The EPA initiated compliance with the PRA when the TRI Final Rule was
proposed for public comment. On or about January 5, 1999, the EPA
submitted an ICR to the OMB pursuant to the PRA in reference to the
proposed TRI rule to be promulgated under the EPCRA. On October 29, 1999,
when the Final Rule was published, the EPA submitted a final ICR to the
OMB. The OMB approved the ICR on January 31, 2000 and assigned it a
control number on that date.
The Final Rule, published on October 29, 1999, established what the
plaintiffs claim is a "radically low" reporting threshold of 0.1 gram per
year for dioxins and furans. The threshold number identifies those who
must report production of 0.1 or more grams per year of the emitted
listed chemicals. The Final Rule, which set the reporting requirement at
0.1 grams for total combined release of all dioxins and dioxin-like
compounds in a single calendar year, went into effect in January of
2001. The Final Rule did not specify what releases had to be reported,
or a methodology explaining how the volume of such reportable releases
would be calculated. Information regarding these questions was also
omitted from the ICR submitted to the OMB by the EPA in the Final Rule.
The EPA stated in the Final Rule that it would request public comment on
these issues and provide guidance on the reporting requirements at a
later date. The EPA issued notice for comment in the Federal Register on
June 15, 2000, and has since promulgated reporting guidelines.
On February 1, 2000, Mr. Tozzi filed a complaint in this matter, which
he has twice since amended. The original complaint sought an injunction
against OMB's approval of the EPA's ICR under the PRA. That complaint
for injunctive relief was withdrawn on February 4, 2000, after the OMB
approved the ICR. The plaintiffs filed a motion for leave to file an
amended complaint, which this Court granted, seeking only declaratory
relief. The first amended complaint, which was filed on March 21, 2000,
retracted a motion not at issue here, added the two additional
plaintiffs, the American Wood Preservers Institute and Wood Protection
Products Inc, and added a third cause of action not at
issue in this
motion. The first amended complaint was based on three causes of action:
(1) the defendants' failure to comply with the procedural requirements
of the PRA, (2) the defendants' usurpation of legislative powers in
violation of the non-delegation doctrine, and (3) the defendants'
adoption of a rule contrary to the statutory standard. On June 12,
2001, the plaintiffs moved for leave to file a second amended complaint,
which this Court granted. The second amended complaint added a claim for
injunctive relief, withdrew the non-delegation doctrine claim in light of
the Supreme Court's decision in Whitman v. American Trucking Ass'ns, 121
S.Ct. 903, 912-914 (US 2001), and clarified the cause of action based on
§ 313 of the EPCRA (failure to adopt a "toxic equivalent (hereinafter
"TEQ")" methodology as arbitrary and capricious). The second amended
complaint seeks declaratory and injunctive relief based on two causes of
action: (1) the defendant's violation the PRA, and (2) the EPA's
arbitrary and capricious failure to satisfy the statutory requirements
for establishing a chemical reporting threshold under § 313 of the
EPCRA.
On February 5, 2001, the defendants moved to dismiss the plaintiffs'
claims for lack of subject matter jurisdiction. The parties' cross
summary judgement motions were deferred by order of this Court until the
resolution of the defendants' motion to dismiss.
On June 15, 2001, the plaintiffs filed a motion for a preliminary
injunction. The plaintiffs seek to enjoin the EPA from requiring one of
the plaintiffs to submit "Form R" as required by the dioxin reporting
requirement pursuant to the new TRI dioxin Rule. The plaintiffs
acknowledge that Wood Protection Products Inc. may have released dioxin
and dioxin-like compounds during the year 2000 in excess of the 0.1
gram/year threshold, falling, as such, within the scope of the new TRI
rule. Pursuant to the TRI rule, Wood Protection Products Inc., must
submit a Form R report detailing the releases by July 1, 2001, unless
this Court grants the requested injunctive relief prior to that date.
A. Jurisdiction and Venue
Whether this Court has subject matter jurisdiction to hear these claims
is at the core of this case. Assuming for the moment that this Court
does have subject matter jurisdiction, this Court would possess federal
question jurisdiction pursuant to 28 U.S.C. § 1331, and have venue
pursuant to 28 U.S.C. § 1391.
B. Applicable Procedural Law and Standard of Review
Under Article III of the United States Constitution, federal courts
have limited jurisdiction and may only exercise jurisdiction granted to
them by Congress. Bender v. Williamsport Area School District,
475 U.S. 534, 541 (1986). Pursuant to a 12(b)(1) motion for dismissal
for lack of subject matter jurisdiction, a case will be dismissed if the
court lacks jurisdiction to hear and decide the dispute. Fed Rule Civ.
Pro. 12(b)(1). A subject matter jurisdiction challenge under 12(b)(1)
may be technical or substantive. United States v. Ritchie, 12 F.3d 592,
598 (6th Cir. 1994). Technically, the pleader must formally aver the
basis of the federal court's jurisdiction. Gibbs v. Buck, 307 U.S. 66, 69
(1939). Failure to formally aver exposes the pleading to dismissal.
Id. At 59. Substantively, the pleader may have formally averred; but if
the actual facts and allegations belie the averment, the case's dismissal
may be compelled. Id. At 59. The party invoking the court's
jurisdiction bears the burden of
proving the accuracy of the subject
matter averment. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). In its evaluation
as to whether subject matter jurisdiction exists, the court must construe
the complaint liberally, accept all uncontroverted, well-pleaded facts as
true, and attribute all reasonable inferences to the plaintiffs. Scheuer
v. Rhodes, 416 U.S. 232 (1974). The court must view the allegation as a
whole, and a conclusory averment of subject matter jurisdiction negated
by other allegations in the pleading should result in dismissal. Gibbs
at 66. To avoid exposure to dismissal, subject matter jurisdiction must
have existed on the date that the lawsuit was filed. Rosa v. Resolution
Trust Corp., 938 F.2d 383. Generally, the court will permit a party to
amend unless it is clear that subject matter jurisdiction cannot be
averred. Leaf v. Superior Court of Wisconsin, 979 F.2d 589, 595 (7th
Cir. 1992). The parties may produce affidavits and other materials to
support their position on subject matter jurisdiction, and the court is
free to weigh such evidence in assessing its power to decide the case.
Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995) A dismissal for lack
of subject matter jurisdiction is usually not a decision on merits, and
will not preclude the plaintiff from instituting the claim in a court
that may properly hear the dispute. Leaf at 595.
If this Court were to decide that it had subject matter jurisdiction,
it would have to review the EPA's and OMB's action under the arbitrary
and capricious standard of the APA, and pursuant to common law Chevron
deference. Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984) Pursuant to the APA, in relevant part, a court may
set aside an agency act, finding, or conclusion of law if it is found to
be arbitrary and capricious, or otherwise not in accordance with law.
5 U.S.C. ยง 706. The complaint and motion to dismiss before the Court
involve the agency action by the EPA and determination by the OMB. Agency
determinations of law and fact are accorded deference under. Id. Under
Chevron, if Congressional intent is clear then both the agency and the
reviewing court are bound by it. However, if the statute at issue is
ambiguous on the point of contention, then the reviewing court must give
deference to a reasonable agency interpretation of it. Reasonable
interpretation need not ...