The material originally appeared in Inside EPA
COURT RULING MAY AID CHALLENGE TO EPA DIOXIN REVIEW
Date: November 30, 2001 -
appeals court decision to uphold a federal government listing of dioxin as a
human carcinogen is prompting lawyers for the plaintiff to argue that the ruling
provides them increased legal footing to oppose other guidance and non-regulatory
dioxin actions by federal agencies, including EPA, sources say.
Court of Appeals for the District of Columbia Circuit on Nov. 23 said a decision
by the Department of Health and Human Services (HHS) to upgrade the classification
of dioxin from a "reasonably anticipated" to a "known" human carcinogen was
not arbitrary and capricious.
Tozzi v. U.S. Department of Health and Human Services, allows the new
classification to remain in the latest listing of chemicals covered under the
National Toxicology Program, an HHS program that publishes a biennial Report
on Carcinogens, which lists chemicals and other compounds based on their
cancer-causing potential. The ruling is available on our web site, InsideEPA.com.
plaintiff lawyers say that because the case established their standing to sue
HHS over the listing and the ability of a federal court to review a non-binding
agency document in the form of the listing, the case could set an important
precedent for future lawsuits against EPA's ongoing dioxin risk reassessment.
While the EPA reassessment is a non-regulatory effort, it could serve as the
basis for future regulatory decisions regarding controls on dioxin risks.
to one attorney, the fact that the court reviewed and issued a ruling on the
listing is a "significant benefit to companies wishing to challenge federal
government information dissemination."
argues that the ruling, coupled with the recently enacted federal Data Quality
Act, which sets standards for the federal information dissemination practices,
establishes a "one-two punch" for companies seeking to challenge "pejorative
statements" by the federal government against their practices, products or byproducts.
said the plaintiff had the legal standing to challenge the listing because HHS'
change to the dioxin classification could have an economic impact on a restaurant
owned by the plaintiff. The litigation was filed by Jim Tozzi, a Washington,
DC restaurant owner and the president of Multinational Business Services Inc.,
which represents corporations in regulatory matters.
a byproduct of charbroiling beef, and the plaintiff argued that the HHS listing
would scare away business.
the court ruling could help in pursuing other legal actions against EPA. "This
will help me get into court and stay in court," the plaintiff says, referring
to a pending case against the agency's dioxin reassessment. That case, Tozzi
v. EPA, has been put on hold until the reassessment is released and undergoes
an interagency review.