IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CIVIL DIVISION

Case No. _________

JIM J. TOZZI, President, Multinational
Business Services, Inc.,
11 Dupont Circle, Suite 700
Washington, D.C. 20036

Plaintiff,

v.

U.S. ENVIRONMENTAL PROTECTION
AGENCY; CAROL M. BROWNER,
Administrator, U.S. Environmental
Protection Agency; ALVIN M.
PESACHOWITZ, Acting Assistant
Administrator for Administration and
Resource Management, U.S. Environmental
Protection Agency; STEVEN A. HERMAN,
Assistant Administrator for Enforcement
and Compliance Assurance, U.S.
Environmental Protection Agency; and
SALLYANNE HARPER, Acting Chief
Financial Officer, U.S. Environmental
Protection Agency,

Defendants.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

Plaintiff Jim J. Tozzi ("Tozzi") files this memorandum of points and authorities in support of his motion for a preliminary injunction.

INTRODUCTION AND FACTUAL BACKGROUND

This action involves one key fact and one key legal issue. The key fact is that the U.S. Environmental Protection Agency ("EPA") is poised to implement a major non-statutory initiative, known as the Sector Facility Indexing ("SFI") Project, without complying with its duties under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. ("Paperwork Act" or "the Act"). The goals of the SFI Project include taking existing data that OMB originally authorized EPA to collect from the public for non-SFI purposes, and modifying and transforming that data (through the use of scientifically-controversial, logarithmic "toxicity weighting factors") so as to create new "data" or "information" for new purposes never reviewed or approved by OMB or commented on by the public pursuant to the Paperwork Act.

The need for a preliminary injunction stems from the fact that EPA is poised to publish this newly-created, SFI "data" on the Internet within the coming month. Affidavit of Brooks Bowen at 3-5. Once publication occurs, plaintiff's rights to submit written comments under the Paperwork Act will be irreparably usurped. In addition, as is set forth at pages 24-25 below, other forms of irreparable harm will be inflicted on numerous other persons.

The key legal issue in this action is whether EPA's modification, manipulation and transformation of existing data in order to create new "data" (to be used by EPA for new purposes) constitutes a "substantive or material modification to a collection of information" within the meaning of section 3507(h)(3) of the Paperwork Act. If that is the case, then it is unlawful for EPA to publish the modified/transformed "data" on the Internet (or elsewhere) unless and until EPA complies with its statutory duties. As is set forth in greater detail at pages 15-19 below, these statutory duties include: (1) informing the public of EPA's proposed new uses for data now being collected pursuant to existing OMB Paperwork Act control numbers (in particular, the control number granted in connection with EPA's Toxic Release Inventory ("TRI") program); (2) affording concerned members of the public, including plaintiff, their statutorily-prescribed opportunities for submitting written comments to both EPA and OMB; and (3) review and approval (or partial approval or disapproval) by OMB based on OMB's review of the SFI Project in light of the criteria set forth in the statute, implementing regulation and OMB guidance.

The Paperwork Reduction Act

The goal of the Paperwork Reduction Act is to ensure that certain standards are met when federal agencies collect information from the public. These standards include: (1) ensuring that the agency needs the information in pursuit of a valid statutory or policy purpose (referred to as the "purpose" and "need" requirements); (2) ensuring that the information collected will be sufficiently accurate to be of use to the collecting agency (the "quality, utility, and clarity" requirement); (3) ensuring that proposed information collections are valid in terms of how the information will be used by the agency (the "practical utility" test); and (4) ensuring that any and all concerned members of the public are provided with an opportunity to provide input, in the form of written comments, to both the information-gathering agency (here, EPA) and OMB concerning numerous Paperwork Act-related issues in connection with the proposed information collection.

The Act achieves these goals by requiring OMB to review and approve (or partially approve or disapprove) each proposed "collection of information" (referred to as the "OMB clearance process"). OMB's approval takes the form of a "control number," which the agency must display on relevant forms as evidence that the OMB approval has been obtained. Each information collection is subject to re-review and approval (or disapproval) every three years. In addition, if an agency seeks to substantively or materially modify an information collection for which a control number has already been granted, the agency must resubmit the information collection for a new clearance by OMB (following the procedures described in the immediately preceding paragraph). See 44 U.S.C. 3507(h)(3).

EPA's Noncompliance with the Paperwork Act

In the present case EPA obtained an OMB control number authorizing EPA to collect information from certain industrial sectors in connection with the statutorily-authorized TRI program. As part of the clearance process, OMB determined that EPA's stated, intended uses of the data to be collected were valid for TRI purposes. Now, however, EPA is using the TRI data for the purposes of an entirely independent, non-statutory initiative, the SFI Project. (For a comparative discussion of the parameters of the TRI and SFI initiatives, see Appendix A.)

A number of important issues pertaining to the validity or invalidity of using TRI data for SFI purposes were never reviewed or approved by OMB, or commented on by the public, during the TRI Paperwork Act review process. These include, but are by no means limited to: (1) the transformation of existing TRI data into newly-created SFI "data" by application of a scientifically-controversial "toxicity weighting factor"; (2) the accuracy of the manner in which EPA intends to display enforcement-related "data" on the Internet; and (3) the validity of the manner in which EPA intends to display several other information elements of the SFI Project (including whether the manner of presentation may mislead users into concluding that there is a specific and reliable correlation or cause-and-effect relationship among those different elements). Until OMB has considered these issues, including public comments, and approved EPA's proposed new uses of TRI data to implement the SFI Project, EPA's engaging in these new uses is unlawful and should be enjoined by this Court. See Natural Resources Defense Council, Inc. v. Herrington, 768 F.2d 1355, 1396 (D.C. Cir. 1985) ("an agency may not ignore the decisionmaking procedure Congress specifically mandated because the agency thinks it can design a better procedure").

Plaintiff intends to file written comments in his own name with both EPA and OMB, pursuant to sections 3506(c) and 3507(b) of the Paperwork Act, addressing numerous problems with EPA's proposed, impending uses of "data" in connection with the SFI Project. Unless this Court issues a preliminary injunction requested by plaintiff in the present motion, (1) the practical effect of those comments will be seriously diminished, if not entirely vitiated; and (2) plaintiff's statutory rights to submit written comments (and have them seriously considered by both EPA and OMB) will be irreparably usurped. Affidavit of Jim J. Tozzi at 4-5.

ARGUMENT

Plaintiff is entitled to a preliminary injunction, because he is able to demonstrate: (a) a substantial likelihood of success on the merits; (b) that he would suffer irreparable injury if the injunction is not granted; (c) that an injunction would not substantially injure other parties; and (d) that the public interest favors entry of a preliminary injunction. See Patriot, Inc. v. U.S. Dep't of Housing & Urban Dev., 963 F. Supp. 1, 4 (D. D.C. 1997) (citing CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)); Competitive Enterprises Inst. v. U.S. Dep't of Agric., 954 F. Supp. 265 (D. D.C. 1996).

A.There Is a Substantial Likelihood That Plaintiff Will Succeed on the Merits.

Plaintiff is entitled to prevail on the merits of this lawsuit based on two legal theories. First, as is set forth at "A.1" below, a "substantive or material modification" to an existing information collection occurs whenever an agency `substantively or materially' varies its uses of data collected from the public from the original uses disclosed to, commented on and reviewed by OMB and the public at the time of the original Paperwork Act clearance proceeding. Second, as is set forth at "A.2" below, because OMB approval of an agency's intended uses of data is a legal prerequisite to collecting such data from the public, an agency cannot lawfully conduct significant new uses of the data until after OMB has approved such new uses.

1.EPA's Use of TRI Data for Purposes of the SFI Project Constitutes a "Substantive or Material Modification to a Collection of Information" Within the Meaning of Section 3507(h)(3) of the Paperwork Act.

That modifications to existing information collections are subject to OMB review and approval is not in dispute. Section 3507(h)(3) of the Act provides that:

An agency may not make a substantive or material modification to a collection of information after such collection has been approved by the Director, unless the modification has been submitted to the Director for review and approval under this chapter.

The statute does not define the term "substantive or material modification." Under such circumstances, the Court is required to seek guidance from: (a) regulations implementing the Paperwork Act; (b) the interpretation of the agency charged with implementing the statute (i.e., OMB); (c) the statute's legislative history; and (d) the policies underpinning the statute. All four considerations compel the conclusion that a modification of the use of collected information constitutes a modification of the "collection of information."

a. OMB's Implementing Regulation.

Evidence for the proposition that a significant new use of existing data constitutes a "modification" of a "collection of information" is found in OMB's regulations implementing the Paperwork Act. The implementing regulation contains a definition of the statutory term, "collection of information," which provides that any one of the following constitute a "collection of information":

  • "the act of collecting or disclosing information";
  • "the information to be collected or disclosed"; or
  • "a plan and/or an instrument calling for the collection or disclosure of information."

See id. 1320.3(c) (emphasis added). The OMB regulation goes on to require that any "substantive or material modification" to such a "collection of information" must first be approved by OMB. See 5 C.F.R. 1320.5(g) ("[a]n agency may not make a substantive or material modification to a collection of information after such collection of information has been approved by OMB, unless the modification has been submitted to OMB for review and approval under this Part").

In other words, if an agency such as EPA `substantively or materially modifies' its `act of disclosing,' `disclosed information' or `disclosure plan,' then the agency has committed a "substantive or material modification to a collection of information" within the meaning of the regulation, and renewed OMB review and approval is mandated.

This is clearly the case under the present facts: EPA's new uses of data for purposes of SFI clearly fall within each of the three alternative definitional categories. The SFI Project comes within the first definition, because EPA is modifying the "acts" by which existing data will be "disclosed" (i.e., by altering, reformulating and re-presenting the data in conjunction with non-TRI data in a manner not approved by OMB). SFI comes within the second definition, because a primary purpose of the Project is literally to create new "data" by modifying and transforming TRI data through the application of "toxicity weighting factors," which are logarithmic, scientifically-controversial methodologies that have not been approved by OMB as to validity and statistical reliability for purposes of the SFI Project. In other words, the information itself is being modified. (See Complaint, Exhibit C at 69-72 for OMB's requirements with respect to statistical reliability.) Finally, the SFI Project constitutes a "plan" modifying the way in which existing data will be used and disclosed (i.e., through dissemination on the Internet), which was never reviewed and approved by OMB pursuant to the Paperwork Act.

Because SFI falls within all three of the alternative definitions set forth in the OMB regulation, SFI constitutes a "substantive or material modification" of the TRI information collection, and is thus subject to prior OMB review under section 1320.5(g) of the regulation (and section 3507(h)(3) of the statute). In addition, this regulation, which has the force of law, provides the Court with an independent basis for ruling in favor of plaintiff on the merits.

b. OMB's Interpretation of the Statute.

OMB is the federal agency charged with implementing the Paperwork Act, and, in particular, with overseeing the compliance of other federal agencies with the Act. See 44 U.S.C. 3504, 3513, 3514. In pursuance of its oversight obligations, OMB has prepared a guidance manual, 175 pages in length, addressing virtually every legal issue that OMB has ever encountered since original enactment of the Paperwork Act in 1980. Issued in draft form on February 3, 1997, the "Implementing Guidance" represents OMB's considered judgment on the legal conclusions addressed therein. On the subject of "Modifications to Collections of Information Previously Approved by OMB," OMB holds that:

An agency may not substantially or materially modify a collection of information previously approved by OMB without OMB approval of the modification. A substantive or material modification is any revision to the collection of information that...significantly changes the uses of the information or otherwise meaningfully alters any aspect of the collection of information from that previously approved by OMB.

OMB Implementing Guidance (Preliminary Draft, Feb. 3, 1997) at 21-22; see Complaint, Ex. C. Based on OMB's interpretation, there can be no doubt that the SFI Project constitutes a "substantive or material modification" of the TRI information collection, because, in implementing the SFI Project, EPA is "significantly chang[ing] the uses of the information" from those uses employed in connection with the TRI program and reviewed and approved by OMB in connection with the TRI clearance. See Cellwave Telephone Serv. L.P. v. FCC, 30 F.3d 1533, 1537 (D.C. Cir. 1994) (citing Chevron U.S.A., Inc. v. Natural Resources Council, Inc., 467 U.S. 837, 842 (1984)) (deference to an agency's interpretation of a statute is appropriate when the agency has expertise in a particular area or Congress has entrusted the agency to administer a particular statute).

c.Legislative History of the Paperwork Act.

Where the interpretation of a statutory term is at issue, it must be construed in a manner that accords with Congress' intent in enacting the provision, as expressed in the statute's legislative history. See Competitive Enterprises Institute v. Dep't of Agric., 954 F. Supp. 265, 270 (D. D.C. 1996) (in considering question of statutory construction, court must attempt to give effect to will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive). In the present case, the legislative history of the Paperwork Act compels the conclusion that substantive or material modification of the use of information collected by an agency constitutes a modification of the "collection of information" itself.

The legislative history of the 1995 re-enactment of the Paperwork Act indicates that OMB's determination that a proposed collection of information does or does not have "practical utility" must be based on OMB's assessment of how the information will be used by the agency:

11.The term "practical utility" is broadened and clarified by dropping the phrase "it collects" from current law. This change clarifies that federally conducted or sponsored collections of information which mandate that persons provide or maintain information to or for third parties may have practical utility if the actual use of the information is necessary for the proper performance of the functions of the agency.

H.R. Conf. Rep. No. 104-37, 104th Cong., 1st Sess. 38 (Feb. 15, 1995) (emphasis added). This Congressional intent can only be given full effect if OMB has the opportunity to review and approve (or disapprove) the "practical utility" of "the actual use[s]" of information. If any agency obtains an OMB control number on the basis of one "use," and then decides to use it for another "use," OMB must determine whether that second "use" would also have "practical utility." OMB will be able to make this second "practical utility" determination only if this Court construes section 3507(h)(3) to apply to substantive or material modifications of uses of previously collected data.

d.Policy Goals of the Paperwork Act.

The manner in which EPA gathers, modifies, interprets and disseminates complex data and scientific information can have an enormous impact, positive or negative, on the targets of its information activities (e.g., companies whose facilities' data is the subject of the SFI Project), as well as on communities nationwide who are supposed to be able to benefit from accurate and meaningfully presented data that will ultimately be made available after EPA complies with the Paperwork Act.

The nationwide impact that EPA's uses of TRI data in connection with the SFI Project will have implicate a number of public policy concerns enunciated by Congress when it re-enacted the Paperwork Act in 1995. These statutory goals include:

  • "ensur[ing] the greatest possible public benefit from and maximiz[ing] the utility of information created, collected, maintained, used, shared and disseminated by or for the Federal government" (44 U.S.C. 3501(2) (emphasis added));

  • "improv[ing] the quality and use of Federal information to strengthen decisionmaking, accountability, and openness in Government and society" (id. 3501(4));

  • "maximizing the utility of information created, collected, maintained, used, disseminated, and retained by or for the Federal Government" (id. 3501(6) (emphasis added);

  • "provid[ing] for the dissemination of public information...in a manner that promotes the utility of the information to the public" (id. 3501(7)); and

  • "improv[ing] the responsibility and accountability of...Federal agencies to Congress and to the public for implementing the information collection review process...and related policies and guidelines established under this chapter" (id. 3501(11)).

These statutory goals can be honored only if the Court interprets the Act to require federal agencies to permit OMB to review all significant new uses of data originally approved for other purposes (other "uses"). In particular, these goals can only be achieved if EPA complies with the following three statutory mandates, which were enacted by Congress to implement these goals:

  • Preliminary EPA review of the proposed new data uses, based on a 60-day public comment period, as required by section 3506(c);
  • OMB review of the proposed new data uses, based on a 30-day public comment period, as required by section 3507(a),(b); and
  • OMB determination on the question of "practical utility," as required by section 3508.

In sum, consideration of OMB's implementing regulation, OMB's construction of section 3507(h)(3) in its draft guidance, Congress' intent as reflected in the legislative history of the Act, and Congress' statements of the Act's purpose all compel the conclusion that an agency's modification of the way it intends to use data collected from the public constitutes a "modification" of the "collection of information," and that such modifications must be reviewed and approved by OMB as set forth in the Act. See Herrera v. Riley, 886 F. Supp. 45, 48 (D. D.C. 1995) (party seeking injunctive relief is not required to show mathematical probability of success on the merits but, rather, injunctive relief may be granted with either high probability of success on the merits and some injury or vice versa).

2.It Is Unlawful for EPA to Use Data Collected Pursuant to the TRI Control Number for Purposes of the SFI Project, Because OMB Never Approved Such Use.

The central provision of the Paperwork Act is that an agency cannot conduct an information collection unless and until OMB approval has been obtained. 44 U.S.C. 3507(a)(2). However, as part of the approval process, OMB is required to apply a number of tests (see discussion at pages 16-19 below), virtually all of which require OMB to evaluate the ways in which the agency intends to use the data to be collected. For example, in order to determine whether a proposed information collection has "practical utility," as required by section 3508, OMB must assess how the agency plans "to make use of this information" (see quote at page 18 below). Different "uses" of the same set of data could result in different OMB determinations regarding practical utility. Accordingly, each new use must be reviewed by OMB under the practical utility standard.

In sum, an OMB control number can only be valid for those purposes reviewed by OMB during the clearance process; before an agency can vary its actual uses of data collected from the public from those uses the agency disclosed to OMB, the agency must go back to OMB and obtain a new approval. Any other interpretation would enable agencies to subvert the Paperwork Act in its entirety by seeking OMB approvals of proposed data collections for noncontroversial purposes and then using the data, once collected, for other, more-questionable purposes never disclosed to OMB or the affected public.

3.Plaintiff and Numerous Similarly Situated Persons Have Been Denied Their Statutory Rights Under the Paperwork Act.

The Paperwork Reduction Act is, first and foremost, a due process statute. The intent of the Act is to enable the public to participate in the process by which the Government collects information and uses that information to affect the lives and businesses of citizens. The Act achieves this goal by (1) establishing a statutory procedure (including disclosure to, and input from, the public) which an agency must follow if it seeks to collect or modify information; and (2) requiring OMB to review and expressly approve each new or modified information collection.

Due process under the Paperwork Act includes the following elements:

  • Allowing the public 60 days to comment on EPA's proposal for modifications, manipulations and new uses of the data;
  • Modifying the initially proposed modifications, based on the comments received;
  • Making ten certifications (set forth at section 3506(c)(3) of the Act) concerning the new uses, including whether the new uses are "necessary for the proper performance of the functions of the agency" and have "practical utility";
  • Sending a "clearance package" for the "modified information collection" to OMB for its approval;
  • Allowing the public 30 days during the OMB review phase to comment on "modified information collection" in the (possibly revised) form in which it is submitted to OMB; and
  • Waiting until OMB approves the "modified information collection," in accordance with criteria specified in the Paperwork Act before EPA begins "conducting" the new uses.

None of these procedures has been followed by EPA in connection with its data and use modifications in connection with the SFI Project. See Solite Corp. v. EPA, 952 F.2d 473, 499-500 (D.C. Cir. 1991) (court compelled EPA to provide notice and opportunity for comment on "new methodology not previously explained" for calculating RCRA average facility volume); see also Ober v. United States EPA, 84 F.3d 304 (9th Cir. 1996) (holding petitioner was prejudiced by EPA's failure to provide sufficient notice and opportunity for comment following EPA's receipt of additional information from interested party).

Because of EPA's violations, both the public and OMB have been denied the opportunity to address the following issues, as applied to the SFI Project:

a."Purpose."

According to OMB:

The term "purpose" means that the collection of information will, or is expected to, achieve a result within the statutory, programmatic or policy requirements of the sponsoring agency, and will be used on a timely basis. The purpose often suggests the general benefit to be served by the collection of information.

OMB Implementing Guidance at 38; see Complaint, Exhibit C. An item of information (proposed to be collected or disseminated) may have had a valid statutory or programmatic purpose for one use, but not for another. Therefore, the fact that OMB may have granted a control number for one purpose (for which Paperwork Act review and approval actually occurred) (e.g., TRI) does not indicate that OMB has or would find that a valid "purpose" exists to justify the use of the same information for a second, new purpose (for which Paperwork Act review and approval has not occurred) (e.g., SFI).

In the present context, plaintiff intended to demonstrate, in his public comment filings with EPA and OMB, that the use of TRI data for SFI purposes does not meet the "purpose" criterion, because Internet publication of the data in the form designated by EPA will not serve any valid "statutory, programmatic or policy requirements" of EPA. See Tozzi Affid. at 4. EPA's noncompliance with its duties under the Act have prevented plaintiff from exercising his right to make this showing.

b."Need."

Under the "need" test:

The term "need" means that some programmatic or policy requirement (as opposed to a desire for information or third-party disclosure) exists. A collection of information may meet the purpose criterion but fail the criterion for need because the results of the study will not help program operation or policy development."

OMB Implementing Guidance at 38; see Complaint, Exhibit C. Serious questions have been raised by state environmental departments (see discussion at pages 22-23 and 26 below) and private sector stakeholders concerning whether the SFI Project will "help" EPA's "program operations or policy development" in light of the misleading nature of the transformed "data" and the misleading way EPA plans to present the newly-created SFI "data" on the Internet site. See Exhibit A. Accordingly, there is a very real possibility that OMB, having found the requisite "need" when it originally awarded the TRI control number, would be unable to find "need" in the SFI context.

c."Practical Utility."

OMB applies the following test in determining whether a new or modified information collection would have "practical utility":

The term "practical utility refers to the usefulness of information (considering its accuracy, adequacy, and reliability) to carry out the agency's functions in a timely manner. A collection of information may...fail the criterion for practical utility because the agency using the information (or the third-party to whom it is disclosed) is not able to use the information obtained (or to receive, understand, process, and make use of the information disclosed) in a timely and useful fashion in a reasonable, practical, workable, and reliable way.

OMB Implementing Guidance at 39 (emphasis added); see Complaint, Exhibit C. Most of the complaints raised against the SFI Project stem from the consensus among state environmental departments and private sector stakeholders that the supposed beneficiaries of the disclosed data -- communities in which facilities are located -- will not be able to use SFI "data" "in a...useful fashion in a reasonable, practical, workable, and reliable way," because the "data" will be inaccurate and misleading. See discussion at page 22-23 and 26 below and Exhibit A. Compelling EPA to comply with the Paperwork Act will allow the question of "practical utility" to be resolved in the open, with participation by all interested persons, including state governments, pursuant to the procedural protections mandated by Congress.

d.Burden on Respondents.

EPA has taken the position that the SFI Project will impose no new burdens on respondents, because EPA is, supposedly, merely processing existing data already collected pursuant to existing OMB control numbers. However, respondent groups have raised a number of problems in connection with the burden issue. See Exhibit A. Because EPA refuses to comply with the Paperwork Act, these groups are being denied their statutory right to have these problems resolved by both EPA and OMB before the SFI Project is implemented. These concerns include, but are not limited to, the following:

  • While reviewing some of the data relating to facilities that EPA planned to use in the SFI Project, certain facilities have discovered numerous data errors in the government databases. The companies are concerned they will be compelled, by law or by real-world public relations concerns, to police the accuracy of EPA's databases indefinitely into the future, as EPA envisions that the SFI Project will be updated annually. This poses "burden-on-respondent" issues under the Paperwork Act.
  • Affected facilities and companies also are concerned about collateral burdens that will accrue upon them as a direct result of EPA's dissemination of misleading facility-specific information. For example:
  • --SFI will cause facilities to incur costs to explain to the public the inaccuracies and incorrect interpretations of the information.

    --The alleged "hazard" information (which is of dubious validity for any specific purpose in the SFI context) will be misinterpreted by many members of the public and the media, as describing the risk posed by the facility to people in the vicinity. (The terms "hazard" and "risk" differ significantly in their technical meanings, but many people incorrectly use them interchangeably.)

    --The facility-specific information and alleged "hazard" rankings generated through the SFI Project will unfairly and inappropriately stigmatize facilities that are located in populated areas, serve as a basis for unwarranted citizen suits, and create artificial competitive pressures.

    --Concerns have also been raised that receipt of a "high risk" ranking will make it difficult for facilities to be purchased or sold, obtain insurance, or obtain financing -- including financing for environmental improvements.

All of these issues are subject to OMB review under the Paperwork Act: according to OMB's Implementing Guidance, OMB scrutiny of a new or modified information collection must address "the time, effort and other resources to perform all required tasks, including...to certify (at whatever level of specificity the collection of information requires) the accuracy and/or reliability of information provided." OMB Implementing Guidance at 43-44; see Complaint, Ex. C. Once again, a key prerequisite to allowing a modified information collection to go forward has been ignored due to the defendants' evasion of their legal duties under the Paperwork Act.

4.Serious Substantive Issues Have Been Raised Concerning the Legality, Accuracy and Statistical Reliability of EPA's Data Manipulations In Connection with the SFI Project.

The need for OMB and public review of EPA's uses and manipulations of public data in connection with the SFI Project is not merely procedural or academic. EPA's employment of TRI data will have serious ramifications for whole sectors of the U.S. economy. The OMB review process was enacted by Congress precisely to ensure OMB oversight of, and public input concerning, the effects of federal agency-sponsored information collections on the regulated community.

Concerned industry trade associations and numerous state environmental directors, as well as the Environmental Council of the States ("ECOS," the national association comprising 51 of the 55 state and territorial environmental agencies), have written to defendant Browner, to no avail, concerning the following Paperwork Act issues:

  • The reliability of the data used in the SFI Project: While reviewing the data relating to the facilities that EPA plans to use in the SFI Project, companies have discovered numerous inaccuracies in the federal and state governments' records and databases.

  • The way in which information such as facility enforcement/violation history would be displayed in the SFI Project: Information regarding alleged quarterly compliance or non-compliance by the facility with applicable regulatory requirements will not readily distinguish between de minimis "paperwork" errors and serious environmental violations. Moreover, each violation will be portrayed as a violation for the duration of the calendar quarter even if it only occurred on one day of that quarter.

  • The likelihood that members of the public will be misled regarding the potential "hazard" or "risk" that each facility's emissions may pose to neighboring communities in light of the way EPA presently intends to characterize emissions: EPA intends to produce alleged "hazard" information, by multiplying the quantity of each chemical species in a facility's TRI emissions by a logarithmic "toxicity weighting factor." EPA also intends to use a unitless "weighted TRI release" number to depict total cumulative toxicity of releases from each facility. Affected industries and state environmental officials have repeatedly objected that this will be interpreted by the public as a Government risk assessment or projection of potential risk from each facility.

  • Concerns of state environmental officials: State environmental officials, as well as industry groups, have objected to the burdens that EPA expects them to assume in the course of validating the accuracy of existing Government databases. Indeed, 19 states have flatly refused to commit their efforts and resources to database validation.

Moreover, the fact that the SFI Project would include only some of the industrial facilities in a given geographic area likely will prompt local activist groups, press, or others to concentrate their focus on the SFI facilities. In reality, other facilities not in the five industries that are in the pilot SFI Project or are not subject to the TRI program (or other sources, including cars, buses and trucks) may pose a substantially greater potential for environmental or health risk.

EPA acknowledges numerous data quality assurance and database integration problems. EPA also has been advised by the independent EPA Science Advisory Board ("SAB") that the SAB could not reach a consensus on whether the "toxicity weighting factors" are scientifically valid for purposes of the SFI Project. Nonetheless, it is clear that EPA is proceeding to implement the SFI Project before the agency cleans up the database errors and addresses the methodological controversies. See Exhibit A.

B.There Is an Imminent Threat of Irreparable Harm to Plaintiff and Other Parties Unless a Preliminary Injunction Is Granted.

1.Irreparable Harm to Plaintiff.

In this lawsuit plaintiff seeks to enforce his statutory rights under the Paperwork Act to submit written comments concerning the validity of EPA's intended uses of data collected from the public in implementation of the SFI Project. If EPA is allowed to implement SFI by publicly disseminating the controverted SFI data through worldwide publication on the Internet, plaintiff's public participation rights will be "after-the-fact," and consequently of no practical value. In addition, once inaccurate and misleading data has been posted on EPA's SFI Internet site, irreparable damage to plaintiff's statutory rights and to the rights of others will have occurred.

Where a plaintiff's statutory rights are the subject matter of the lawsuit, and the defendants' conduct threatens to violate those rights while the lawsuit is still pending, the courts have found irreparable harm to be present and have granted preliminary injunctive relief. See Mt. Airy Refining Co. v. Schlesinger, 481 F. Supp. 257, 283 (D. D.C. 1979) (clear basis for irreparable harm results from agency's failure to conform to the statutory, procedural requirements of the National Environmental Policy Act); see also International Dealers School, Inc. v. Riley, 840 F. Supp. 748 (D. Nev. 1993) (an injunction is appropriate to preserve plaintiff's statutory and due process rights).

2.Irreparable Harm to Other Parties.

In addition to plaintiff, EPA's unlawful use of existing data for purposes of SFI will cause irreparable harm to hundreds of industrial facilities, to numerous state governments and to unknown numbers of other interested persons, due to the manner in which EPA is misusing such data. EPA's manipulation of the data will mislead the public regarding the existence or extent of purported environmental hazards and violations attributable to individual facilities, because (1) the toxicity weighting factors employed by EPA are not scientifically or statistically sound for purposes of the SFI Project; and (2) EPA will display the enforcement-related data on the Internet site in a manner that will fail to distinguish between minor paperwork or other de minimis errors on one hand, and significant environmental violations on the other. See discussion at pages 21-22 above.

As a result of the misleading manner in which EPA plans to disseminate the SFI "information," facilities throughout the U.S. (1) will be bombarded with hostile inquiries from the press and the public (which will result in loss of goodwill, as well as considerable time, expense and effort to respond and defend against); and (2) will be sued based on the unsubstantiated inferences derived from EPA's "information." Under such circumstances, monetary damages would be virtually impossible to calculate and collect, so that only declaratory and injunctive relief can prevent the incurrence of irreparable harm. See Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546 (4th Cir. 1994) (irreparable injury prong is satisfied where failure to grant preliminary injunction creates loss of goodwill).

C.Issuance of a Preliminary Injunction Would Benefit All Concerned Parties.

The rights and interests of five groups are implicated by the present motion: (1) plaintiff and other persons desiring to file written comments with EPA and OMB concerning the use of TRI data and other data in connection with SFI; (2) companies whose facilities' data will be modified/transformed by EPA and then displayed on the Internet site; (3) state environmental officials, whose agencies' enforcement-related data will be transformed and (mis)used in SFI, and who will also be burdened with explaining the results of EPA's "toxicity weighting" calculations to concerned communities, environmental groups and the press; (4) members of communities in the vicinities of facilities, who wish to obtain accurate information about potential environmental hazards and compliance histories; and (5) EPA, which wishes to implement a non-statutory initiative (i.e., the SFI Project). The rights and interests of all five groups will be enhanced, and the interests of no one harmed, if a preliminary injunction is issued under the present facts.

As is set forth at pages 23-24 above, issuance of a preliminary injunction is imperative to prevent the incurrence of irreparable harm to plaintiff and other interested persons who intend to file written comments pursuant to the Paperwork Act addressing the Paperwork Act implications of the legal, scientific and data-accuracy problems with the SFI Project in its present form. The second group, companies whose facilities are directly targeted by EPA, are also threatened with irreparable harm (see discussion at pages 24-25 above), so that they too would benefit from the issuance of a preliminary injunction.

The third group, state environmental officials, also would benefit from issuance of a preliminary injunction. A formal Paperwork Act review of the SFI Project will result in fewer instances in which state officials will be called upon to explain confusing, incorrect or misleading "data" disseminated through SFI. State officials view the present prospect of responding to agitated communities, environmental groups and the press regarding inaccurate and misleading SFI "data" as an "unfunded mandate" imposed by EPA upon state agencies' limited financial and personnel resources.

The fourth group, communities in the vicinities of facilities included in the SFI Project, would also benefit from the issuance of a preliminary injunction, because public comment and OMB review pursuant to the Paperwork Act is designed to ensure the accuracy, integrity, statistical reliability and clarity of the data ultimately to be displayed on the Internet. Ensuring data accuracy, integrity and clarity will help communities and environmental groups to discern real environmental concerns when they are present, as well as to avoid the wasting of limited resources tilting at illusory hazards. Finally, EPA's interests will be enhanced if a preliminary injunction is issued, because the quality of EPA's implementation of the SFI Project will be enhanced through the input EPA and OMB will receive from state environmental officials, regulated companies, environmental and community groups and other concerned members of the public regarding ways in which SFI data accuracy, integrity, statistical reliability and clarity could be enhanced. In sum, the relief sought by plaintiff in this lawsuit would result in a "win-win" situation for all of the stakeholders.

D.The Public Interest Favors Entry of a Preliminary Injunction.

In this Memorandum plaintiff has identified a number of public policy goals enunciated by Congress that are threatened by EPA's violations of the Paperwork Act. See discussion at pages 12-13 above. The courts have held that the public interest favors requiring federal agencies to comply with their statutory obligations, and have granted preliminary injunctive relief to prevent violations of such obligations. See, e.g., Patriot v. Dep't of Housing and Urban Dev., 963 F. Supp. 1, 6 (D. D.C. 1997) (public interest is best served by having federal agencies comply with requirements of federal law, particularly notice and comment requirements).

CONCLUSION

For all of the foregoing reasons, plaintiff Jim J. Tozzi respectfully requests that the Court grant the present motion for a preliminary injunction.

Dated: January 23, 1998Respectfully submitted,

___________________________
Charles J. Fromm
(D.C. Bar No. 420021)
MULTINATIONAL LEGAL SERVICES, P.C.
11 Dupont Circle
Suite 700
Washington, D.C. 20036
(202) 797-7124 (phone)
(202) 939-6969 (facsimile)

Attorneys for Plaintiff JIM J. TOZZI

Of Counsel

Brooks J. Bowen
(D.C. Bar No. 202051)
MULTINATIONAL LEGAL SERVICES, P.C.
11 Dupont Circle
Suite 700
Washington, D.C. 20036
(202) 797-7124 (phone)
(202) 939-6969 (facsimile)

APPENDIX A

Toxic Release Inventory Program

The "Toxic Release Inventory" Program ("TRI Program") implements Section 313 of the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001 et seq., at 11023).

  • The TRI program applies to industrial facilities in specified industrial sectors, based on Standard Industrial Classification codes.
  • Owners or operators of covered facilities that manufacture, process, or otherwise use any of over 600 listed toxic chemicals and chemical categories in excess of certain applicable threshold quantities, and meeting certain requirements (e.g., the facility has at least 10 employees), must report environmental releases and transfers of, and waste management activities for, such chemicals annually.
  • By statute, the information reported by each facility is public information. EPA collects and distributes the annual TRI information in printed form. The information also is accessible through one or more electronic databases.

Sector Facility Indexing Project

The EPA Sector Facility Indexing Project ("SFI Project"), which is not mandated by any statute, will create an integrated, electronic, Internet-accessible database, initially addressing approximately 661 facilities in five industries, with information about:

  • Each facility's reported annual releases of chemicals to the air and water and to land disposal (the "Toxic Release Inventory" data);

    -EPA reportedly plans to augment the TRI-based facility profiles with detailed information from the various media-specific databases (Clean Water Act, Clean Air Act, RCRA, etc.) as quickly as possible;

  • The relative and cumulative toxicity of the chemicals released from each facility;

    -EPA plans to multiply the TRI pollutant release data by a "toxicity weighting factor", which is a logarithmic-scale ranking of the supposed relative toxicity of each different chemical on the TRI list;

    -The product would be a "Weighted TRI Release" number, a unitless number that is intended to depict the total, aggregate quantity and toxicity of all the (TRI) chemical releases from each facility;

  • Number of people, and population demographics, in the vicinity of each facility, based on U.S. Census data;
  • Each facility's enforcement/violations history; and
  • Each facility's production or production capacity.

The five initially-affected industry sectors are: automobile assembly, petroleum refining, pulp and paper mills, iron and steel production, and primary non-ferrous metals production (e.g., aluminum, copper, lead, zinc).

EPA plans to release the SFI Project database to the public on the Internet, reportedly by the end of February 1998.