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10 ELR 20274 | Environmental Law Reporter | copyright © 1980 | All rights reserved Natural Resources Defense Council, Inc. v. CostleNo. 79 Civ. 2411 (S.D.N.Y. February 4, 1980)Granting plaintiff's motion for partial summary judgment, the court directs the Environmental Protection Agency (EPA) to propose rules for the testing of 18 "priority" chemicals, as required by the Toxic Substances Control Act (TSCA). Section 4 of the statute established the Interagency Testing Committee and directed it to recommend for priority testing substances which meet certain criteria. The Act further requires EPA to establish testing procedures for those substances. The Committee recommended 18 substances for initial testing, but EPA failed to initiate rule-making proceedings for testing regimes, citing administrative difficulties. Plaintiff alleged that EPA violated the Act in failing to comply with a non-discretionary duty to initiate rule making on the priority chemicals. EPA responded that TSCA required no more than progress reports on its efforts to comply with § 4.Ruling that plaintiff satisfies the "injury in fact" test and thus has standing, the court rejects EPA's interpretation of its duty under § 4 of TSCA. Whereas under other provisions of the Act the agency must prepare periodic reports on its implementation of the Act, under § 4 it must support any delay in initiating the required rulemaking proceeding with a statement of reasons. Viewing this requirement as indicative of congressional intent that the § 4 rule making not be delayed, the court orders the Agency to sumit proposed plans to initiate rule-making proceedings on the 18 priority substances recommended for testing by the Committee. Counsel for Plaintiff Ross Sandler Counsel for Defendants Counsel for Intervenor-Defendant Chemical Mfrs. Ass'n Edmund B. Frost, David Forsyth Zoll Peter Barton Hutt, Robert M. Sussman Counsel for Intervenor-Defendant American Petroleum Inst. Counsel for Intervenor-Defendant Synthetic Organic Chemical Mfrs. Ass'n Pierce, J.: Plaintiff Natural Resources Defense Council, Inc. ("NRDC"), a non-profit membership corporation organized under the laws of the State of New York, brought this suit against the United States Environmental Protection Agency ("EPA"), and Douglas Costle, as Administrator of the EPA, seeking an order requiring the EPA to adhere to the provisions of the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq. ("the Act"). The Chemical Manufacturers Association ("CMA"), the Synthetic Organic Chemical Manufacturers Association ("SOCMA"), the American Petroleum Institute ("API"), Koppers Co., and Reilly Tar and Chemical Corporation ("Reilly") were given permission to intervene on behalf of the defendants pursuant to Rule 24(a) of the FED. R. CIV. P. predicated upon their property interest as manufacturers, or associations representing manufacturers, of the chemicals involved in this litigation.1 Defendants moved for summary judgment pursuant to Rule 56 FED. R. CIV. P.; plaintiff filed a cross-motion for partial summary judgment seeking a declaratory judgment that defendants have failed to comply with certain non-discretionary duties under the Act. Oral arguments on the motions were heard on October 10, 1979. For the following reasons, defendants' motion for summary judgment is denied; plaintiff's motion for partial sumary judgment is hereby granted. The following shall constitute the Court's findings of fact and conclusions of law pursuant to Rule 52 FED. R. CIV. P. The Act, effective as of January 1, 1977, was enacted by the Congress in order to bring about the institution of comprehensive procedures for the testing and control of chemicals believed to present unreasonable risks of injury to health or to the environment. It was "designed to fill a number of [then existing] regulatory gaps . . . ." U.S. CODE CONG. & AD. NEWS 4491, 94th Cong., 2d Sess. (1976). The legislature perceived a need for this legislation because "[t]he last century has witnessed the ever-accelerating growth of the chemical industry . . . [and] too frequently we have discovered that certain of these chemicals present lethal health and environmental dangers." Id. at 4493. The core regulatory sections of the Act are 15 U.S.C. §§ 2603, 2604, and 2605. Section 2603(a)(1)(A) provides for the testing of chemical substances and mixtures found by the EPA Administrator: (1) to present an unreasonable risk of injury to health or the environment, (2) to have insufficient data available to determine the effects of the particular substance, or (3) to need testing to develop data on risk to health and the environment.Section 2604 requires manufacturers to notify EPA of new chemicals and significant new uses of old chemicals before manufacture begins. Section 2605 outlines the remedies available to EPA with respect to chemicals which are found to present unreasonable risks to health or the environment.2 Plaintiff alleges that defendants have failed to comply with the testing requirements of § 2603. Section 2603(a) provides that if the Administrator makes one of the legislatively prescribed findings, then "the Administrator shall by rule require that testing be conducted on such substances or mixtures. . . ." Pursuant to this testing mandate, § 2603(e)(1)(A) establishes the Interagency Testing Committee ("the Committee") to recommend chemicals for priority consideration by the EPA Administrator. The Committee consists of eight members, each appointed by one of the following: (1) the Administrator of the EPA, (2) the Secretary of Labor, (3) the Chairman of the Council on Environmental Quality, (4) the Director of the National Institute of Environmental Health Sciences, (5) the Director of the National Institute for Occupational Safety and Health, (6) the Director of the National Cancer Institute, (7) the Director of the National Science Foundation, and (8) the Secretary of Commerce. See 15 U.S.C. § 2603(e)(2)(A). Section 2603(e)(1)(A) requires that the Committee make its recommendations to the EPA Administrator of chemical substances for priority consideration based upon "all relevant factors" including eight specifically enumerated factors concerned with the extent of human and environmental exposure. The recommended chemicals are to be listed by the Committee in the order of recommended priority for rulemaking action by the EPA. In establishing this list, the Committee is required to give priority attention to those chemicals know to cause or suspected of causing or contributing to "cancer, gene mutations, or birth defects." 15 U.S.C. § 2603(e)(1)(A). Section 2603(e)(1)(A) then directs that: The committee shall designate chemical substances and mixtures on the list with respect to which the committee determines the Administrator should, within 12 months of the date on which such substances and mixtures are first designated, initiate a proceeding under subsection (a) of this section. The total number of chemical substances and mixtures on the list which are designated under the preceding sentence may not, at any time, exceed 50. Section 2603(e)(1)(B) provides that the Committee shall publish this list in the Federal Register, and submit it to the EPA Administrator "[a]s soon as practicable, but not later than nine months after January 1, 1977 . . . ." Section 2603(e)(1)(B) then states the deadline for EPA action as: Within the 12-month period beginning on the date of the first inclusion on the [Committee's] list of a chemical substance or mixture designated by the committee, . . . the Administrator shall with respect to such chemical substance or mixture either initiate a rulemaking proceeding [10 ELR 20276] under subsection (a) or, if such a proceeding is not initiated within such period, publish in the Federal Register the Administrator's reason for not initiating such proceeding. (Emphasis added.) In July 1977, the Committee in compliance with its statutory mandate published a "Preliminary List of Chemical Substances for Further Evaluation," which identified approximately 330 substances or categories of substances along with background information on the methods used by the Committee in making its selections. 1 Chemical Regulation Reporter 657-60 (1977); see also, 42 Fed. Reg. 55026 et seq. (1977). As explained by the Committee in its background report, this "Preliminary List" resulted from a screening of approximately 3,650 chemicals and categories of chemicals which had already been identified in previous reviews because of potential adverse effects on human health, or the environment, or as having large production volumes and a potential for substantial human exposure or environmental release. Comments on the "Preliminary List" were received from about 65 industrial firms, trade associations, environmental organizations, government agencies, and individuals. 42 Fed. Reg. 55039-42. The Committee reviewed the public comments, and scored the substances on the "Preliminary List" according to selected factors. Id. at 55043. On October 5, 1977, the Committee transmitted to the EPA its "Initial Report" which designated for consideration by the EPA within the following twelve months, ten substances and categories of substances for the promulgation of regulations under § 4(a), along with specific testing regulations. Id. at 55051-60. The Committee determined that each of the ten chemicals was of an equally high testing priority. On April 10, 1978, the Committee transmitted its "Second Report" to the EPA, 43 Fed. Reg. 16684 et seq. (1978), designating eight more chemicals and categories of chemicals for certain recommended health and environmental effects testing, and describing them as having the same priority as the original ten. On October 10, 1978, the EPA responded to the Committee's "Initial Report." 43 Fed. Reg. 50134 (1978). In its response, consisting of approximately one page plus appendix, the EPA essentially stated that it had been unable to evaluate the recommended chemicals. In a letter dated March 2, 1979, plaintiff NRDC informed EPA that it considered EPA's first response inadequate, and that it believed that the EPA was in violation of the Act. In April 1979, Dr. Warren Muir answered the letter, and provided the NRDC with a more detailed explanation of why EPA was not able to initiate testing procedures at that time. The Muir letter essentially explained the current status and duties of the EPA with respect to the Act. The letter made reference to difficulties the EPA was experiencing, including a shortage in trained personnel and office space. On May 8, 1979, the EPA published its response to the ITC's "Second Report." In summary, the EPA stated: As discussed further, below, the EPA has not yet completed full evaluation of the recommendations, which must be done before the Agency can determine whether to propose testing rules for them. In addition, the test standards that must be identified in proposing section 4 test rules have not yet been properly proposed for public review and comment. For these reasons the Agency is not at this time proposing section 4 test rules for the chemicals and categories included by the ITC in its second report. Plaintiff contends that the reasons published by the EPA in its reponses are not sufficient to comply with the mandates of the Act. Defendant and intervenors rely upon a statement in the Act's legislative history that Congress did not intend for the EPA to devote "an inordinate amount of resources to justify the failure to require testing." U.S. CODE CONG. & AD. NEWS, supra, at 4547. They assert that the EPA is in compliance with the statutory mandate. The Court disagrees and holds that the reasons published by the EPA are insufficient as a matter of law to comply with the Congressional intent and the mandate of the Act. In the prosecution of this action, plaintiff invokes this Court's jurisdiction on three grounds: (1) 15 U.S.C. § 2619, which permits any person to commence a civil action "against the Administrator to compel the Administrator to perform any act or duty under this chapter [the Act] which is not discretionary"; (2) 28 U.S.C. § 1331(a), as a federal question; and (3) 28 U.S.C. § 1361, as an action to compel an officer of the United States to perform his duty. The API and the CMA, two of the intervenors in this action, challenge plaintiff's standing. They allege that plaintiff should have pursued his claim through a citizen's petition as provided for in 15 U.S.C. § 2620, and that plaintiff does not have standing under the United States Constitution, Article 3, because plaintiff has not shown that he has been injured, i.e., plaintiff has not alleged actual exposure to the "Priority List" chemicals. Plaintiff brings this suit under 15 U.S.C. § 2619(b) to compel the Administrator to perform a non-discretionary duty. Subsection (d) of § 2619 provides that: "[n]othing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of this chapter or any rule or order under this chapter or to seek any other relief." The citizen's petition provision of the Act, 15 U.S.C. § 2620(a), permits "any person . . . [to] petition and Administrator to initiate a proceeding for the issuance, amendment, or repeal of a rule . . . ." Subsection (b)(5) of this statute provides that "the remedies under this section shall be in addition to, and not in lieu of, other remedies provided by law." The Act apparently contains two provisions for citizen review of EPA compliance. In the Court's view, plaintiff is not required to rely exclusively upon utilization of a citizen's petition. Plaintiff has met the constitutional standards for standing. In the first paragraph of its complaint plaintiff alleges: NRDC has approximately 43,000 numbers and contributors throughout the country. NRDC's purposes, which are supported by its members and contributors, are to protect and enhance environmental quality, to monitor federal, state and local agencies responsible for administering environmental legislation, and when necessary, to litigate the adequacy of agency action implementing such statutes. Each of NRDC's members in the United States is or may be exposed to the kinds of unreasonable risks of injury to health and the environment which the Toxic Substances Control Act, 15 U.S.C. Sections 2601, et seq. (TSCA) is designed to prevent. Plaintiff has supplemented these allegations with an unopposed affidavit made by its staff attorney, Ross Sandler, filed August 15, 1979, which states that NRDC is a membership corporation existing under the New York Not-For-Profit Corporation Law with two classes of members; they are: (a) regular members who elect themselves to office as NRDC's "Board of Trustees" and who authorized the bringing of this suit, and (b) general members who receive newsletters, progress reports, annual reports, etc. NRDC is a membership organization. It is not a mere sponsorship organization representing third parties who are not really its members. See Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 337 (1976). Intervenors allege that plaintiff has not met the "injury in fact" test for standing under Article 3. The intervenors rely upon Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972), which held that the mere fact that an association is dedicated to promoting environmental values is not sufficient to confer standing.The plaintiff in Sierra Club, a membership organization interested in environmental preservation, was found not to have standing because it did not allege a sufficient stake in the outcome of the suit. Specifically, there was "no allegation in the complaint that members of the Sierra Club would be affected by the actions of (the respondents) other than the fact that the actions are personally displeasing or distasteful to them." 405 U.S. at 731. Plaintiff NRDC meets all the qualifications for associational standing set forth in the recent Supreme Court decision in Hunt, supra. In Hunt, the Court stated that "an association has standing [10 ELR 20277] to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own rights; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members of the association." 432 U.S. at 343. The claim asserted herein is not dissimilar to the claim made in City of Davis v. Coleman, 521 F.2d 661 [5 ELR 20633] (9th Cir. 1975). In Davis, the plaintiff, a municipal corporation, sued the United States Secretary of Transportation to enjoin the construction of a highway based upon the defendants' failure to prepare an Environmental Impact Statement ("EIS") in contravention of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C). Plaintiff sought to force compliance with this statute. The Ninth Circuit stated that "the procedural injury implicit in agency failure to prepare an EIS — the creation of a risk that serious environmental impacts will be overlooked — is itself a sufficient 'injury in fact' to support standing provided . . . that he [plaintiff] may be expected to suffer whatever environmental consequences the project may have." 521 F.2d at 671. Here, the uncertain nature of potential serious harm is precisely the reason why EPA is required to test the chemicals. In its unopposed "Supplemental Appendix To Memoranda of Law In Support of Plaintiff's Motion For Partial Summary Judgment," the plaintiff quotes excerpts taken directly from the First and Second Committee "Reports" and supporting dossiers which state that workplaces and households are among the places where the priority-designated chemicals can be found. Thus, plaintiff has demonstrated a sufficient injury to its members to have standing in this action. The Court finds that plaintiff has standing to sue herein under Article 3 of the United States Constitution. On October 5, 1977, the Committee forwarded to EPA its "Initial Report to the Administrator, Environmental Protection Agency" (see Plaintiff's Exhibit D), designating the ten chemical substances to be considered by the EPA within the next twelve months. This "Initial Report" was published in 42 Fed. Reg. 55026 et seq., October 12, 1977. EPA made its "Responses to Interagency Testing Committee Recommendations" on October 10, 1978, a few days beyond the twelve month deadline. It was published in 43 Fed. Reg. 50134 et seq., October 26,1978. The Committee's report to the EPA included a detailed background report; it reported on the Committee's own compliance with the Act, especially its assessment of the eight factors enumerated as a basis for its recommendations in § 2603(e)(1)(A) of the Act. One of the eight factors assessed was the "availability of testing facilities and personnel." With regard to this factor the Committee stated that it had reviewed the results of recent surveys of toxicology testing capabilities as conducted by the Society of Toxicology, and other toxicological research programs. The Committee "also reviewed the capabilities and plans of the National Center for Toxicological Research (NCTR), the possible impact of the FDA's Good Laboratory Practices, and the logistics and practical considerations for carcinogenicity, mutagenicity, and reproductive effects testing. It was also briefed on ecological test capabilities and need in the area." 42 Fed. Reg. at 55047. The Committee concluded that "there are sufficient toxicology testing capabilities in the United States to carry out the health effects testing recommended . . . [and] that the testing burden [for ecological and environmental testing] likely to result from recommendations in this report is reasonable." 42 Fed. Reg. at 55048. The EPA's October 10, 1978 "Response to the Initial Report" stated that EPA had decided not to initiate a rulemaking proceeding at that time, although it also stated that the EPA had not determined that such proceeding was not necessary. Included among its reasons for not initiating a proceeding at that time was the fact that it was still in the process of receiving studies on the chemicals and that it had not yet completed its evaluation. Upon publication of this "Response," the EPA removed the ten chemicals from their priority designation. On April 10, 1978, the Committee's second list of eight priority chemicals and accompanying report were submitted to the EPA. The EPA responded on May 8, 1979, once again just beyond the twelve month statutory deadline. In summary, EPA's published response stated: "[t]he Agency has not completed its review and evaluation of the April 1978 recommendations. Therefore, EPA is not initiating section 4(a) [section 2603] rulemaking proceedings for those recommendations at this time. EPA plans to propose test rules in December 1979, March 1980, and May 1980 that will require health effects testing of any chemicals included in the first two ITC reports that meet the requirements of section 4(a)." 44 Fed. Reg. 28095 (1979). The second group of priority chemicals was also removed from the priority consideration list upon publication of the EPA "Response." The Muir letter, supra, sent in response to NRDC's notice of intention to sue, which gave further details on the EPA manpower and financial difficulties, was never published in the Federal Register as an official supplement to the EPA's "reasons." In this letter Dr. Muir also predicted that the first test rule would be issued by the EPA by the end of December 1979. As of the date of this opinion the Court has not received any notice that a test rule has in fact been issued. Furthermore, at oral arguments herein, the attorney representing EPA predicted that the first quarter of 1980 would likely to the time period in which the first rule would be issued; he was not able to provide the Court with any further predictions beyond that date.Tr. at 43.3 EPA contends that having published its "reasons" in the Federal Register, it is under no further deadlines with respect to the aforesaid 18 chemical substances.The EPA argues that the twelve month § 2603 deadline was no more than a deadline for a progress report which "serves the obvious purpose of focusing for Congress and the citizens what the agency's capabilities are with respect to this program and what it is going to take in the future to require action with greater speed, if that is what is required or with lesser speed if that is what is required and warranted." Tr. at 14. Upon oral argument of the motions, counsel for the EPA reemphasized the funding problems experienced by the Agency, but, upon inquiry by the Court, was unable to provide any evidence that the Agency had sought additional funds from the Congress to enable it to carry out its new responsibilities under the Act. This Court cannot agree with EPA's interpretation of what Congress intended when it imposed a twelve month deadline with respect to this critical health and environmental legislation. If Congress intended to require what is essentially a progress report from the EPA when it directed the EPA to state its "reasons," if it found that it could not comply with the twelve month deadline for the initiation of a rulemaking proceeding, it would likely have tracked the procedure it adopted with respect to § 2629 of the Act. Section 2629 requires the Administrator to prepare and submit to the President and the Congress an annual "comprehensive report on the administration of this chapter during the preceding fiscal year" and, to include a summary of major problems encountered in the administration of the chapter, and other information comprising what is the equivalent of a status report. It is noteworthy that Congress did not follow this course under § 2603. The Act is the product of some fifteen days of legislative herings and five years of extensive analysis. U.S. CODE CONG. & AD. NEWS, supra, at 4493. It provides for review by citizens of statutory compliance through both the civil suit and the citizen's petition. The Congress obviously intended close public scrutiny; this is hardly possible if the EPA is not required to provide legally cognizable reasons for not complying with statutorily prescribed timetables regarding implementation of the Act. That Congress intended to impose statutory deadlines in this regard cannot be seriously questioned. A progress report, providing generalizations on EPA's past and present difficulties does not fulfill the Congressional requirement that the EPA provide "reasons" for not initiating rulemaking proceedings with respect to the Committee's designated "priority" chemicals. Therefore, the EPA is in violation of § 2603 of the Act. Plaintiff's motion for partial summary judgment on this issue is hereby granted. Defendants' motion for summary judgment is denied. [10 ELR 20278] Defendants are hereby ordered to submit to the Court their proposed plans, with an accompanying explanation for compliance with § 2603 of the Act, by February 29, 1980. Plaintiff shall have two weeks from the date of such submission to submit comments regarding defendants' proposed plan. 1. See Order dated September 11, 1979. 2. These remedies include prohibition or limitation on the manufacture of the chemical. 3. "Tr." refers to the transcript of the oral argument. 10 ELR 20274 | Environmental Law Reporter | copyright © 1980 | All rights reserved |