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Byrd v. EPA

ELR Citation: 29 ELR 21150
Nos. No. 98-5180, 174 F.3d 239/(D.C. Cir., 04/30/1999)

The court affirms a district court's grant of summary judgment to the U.S. Environmental Protection Agency (EPA) on a toxicologist's claim that EPA violated the Federal Advisory Committee Act (FACA) by hiring a contractor to convene and conduct an external peer review of benzene's carcinogenic effects. The court first holds that the toxicologist has standing to maintain the action. By denying the toxicologist timely access to the peer review panel's written comments and pre-meeting notes, EPA directly caused his informational injury. Further, declaratory relief would redress the toxicologist's injury because it would provide him with the court's declaration that the Agency failed to comply with the FACA. Such a declaration will give the toxicologist ammunition for his attack on the peer review panel's findings in subsequent agency proceedings. Moreover, declaratory relief might well cause EPA to reevaluate and change peer review practices not in conformity with the FACA. The court next holds that the toxicologist's receipt of the panel's pre-meeting notes does not render his claim moot. Because EPA has not convened another benzene panel in compliance with the FACA that would provide the toxicologist with all panel documents, declaratory relief would afford the toxicologist some relief and prevent his action from becoming moot. In addition, the release of the documents does not render moot the toxicologist's challenge to EPA's policy of hiring contractors to conduct peer reviews without following the FACA's requirements.

The court then holds that the panel was not subject to the FACA because EPA did not establish or utilize the panel within the meaning of FACA §3(2). The toxicologist cannot show that the panel was a government-formed advisory committee because the contractor selected the panel membership. Although EPA provided a list of suggested panel members to the contractor, the contractor was not required to select its members from that list and two of the panel members were not on the EPA list. Moreover, EPA approved the contractor's panel member selections without changes, and the contractor paid the panelists from its own funds. Further, although the contract between EPA and the contractor afforded EPA significant potential authority in the panel selection process, EPA never fully exercised it. Therefore, EPA did not establish the panel. Similarly, because EPA did not manage and control the benzene panel, it did not utilize the panel under the FACA. The record shows that the contractor actually managed and controlled the selection of the panel's membership. And although the contract between EPA and the contractor authorized EPA to receive and comment on the panel's draft report, no evidence was found that EPA's input, if any, resulted in changes being made to the final report.

Counsel for Appellant
Thomas R. Bartman
Shapiro, Lifschitz & Schram
The Evening Star Bldg.
1101 Pennsylvania Ave. NW, Ste. 1050, Washington DC 20004
(202) 347-4111

Counsel for Appellee
Thomas M. Bondy
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Edwards, J., with Williams, J., concurring in part and dissenting in part