IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

On March 21, 2000, an amended complaint was filed by plaintiffs Jim J. Tozzi, the American Wood Preservers Institute, and Wood Protection Products, Inc., challenging Defendants' actions with respect to the Persistent Bioaccumulative Toxic (PBT) Chemicals Rule. 64 Fed. Reg. 58,667 (Oct. 29, 1999) (Final Rule). Subsequently, plaintiffs have moved for leave to amend the complaint, as of June, 2001, and, on June 15, 2001, plaintiffs filed a Motion for a Preliminary Injunction (Plaintiffs' Motion) to enjoin EPA from requiring the submission of "Form R" data on releases of dioxins and dioxin-like compounds for the TRI.

The Final Rule at issue for plaintiffs was promulgated by the U.S. Environmental Protection Agency (EPA), pursuant to section 313(d)(2) and (f)(2) of the Emergency Planning and Community Right to Know Act (EPCRA). 42 U.S.C. § 11023(d)(2) and (f)(2). Section 313 of EPCRA, 42 U.S.C. § 11023, requires certain facilities that manufacture, process or otherwise use listed toxic chemicals ("toxic chemicals") to submit reports to EPA and state officials¹ 42 U.S.C. § 11023(b)(l)(A). These reports² must disclose, among other things, whether the facility manufactures, processes or otherwise uses toxic chemicals, an estimate of the maximum amounts of each chemical present at the facility at any time, methods of disposal and treatment of waste, and an estimate of the amount of each chemical entering each environmental medium. 42 U.S.C. § 11023(g).³ In relevant part, the Final Rule added dioxin and sixteen dioxin-like compounds when processed or otherwise used under certain circumstances, or when manufactured (referred to collectively as "dioxins") to the Toxic Release Inventory (TRI) list of toxic chemicals subject to specific reporting requirements under EPCRA section 313. 64 Fed. Reg. at 58695, 58704, and 58750. The Final Rule also established an alternate threshold at which the reporting requirements would be triggered. Id.

In the First Cause of Action, plaintiffs contend that defendants EPA and several named EPA employees (jointly referred to as EPA) failed to comply with the procedural requirements of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. §§ 3506-07, with respect to the Information Collection Request (ICR) for the reporting requirements in the Final Rule. Plaintiffs further claimed that the Office of Management and Budget's (OMB) approval of the ICR was inconsistent with the PRA. It is these claims that serve as the basis for plaintiffs' motion for a preliminary injunction⁴

Defendants have previously filed a Motion to Dismiss the First Cause of Action and a Reply to plaintiffs's opposition thereto. Because the plaintiffs are relying on their claim based on the Paperwork Reduction Act (PRA) that was the subject of those pleadings for the preliminary injunction (see Plaintiffs' Motion at 7) at issue now, defendants incorporate those pleadings herein.

Plaintiffs have requested that the Court enjoin EPA from requiring the submission of "Form R" data on releases of dioxins for the TRI. Such reports are currently due on July 1, 2001. Because plaintiffs cannot meet the criteria for issuance of a preliminary injunction, as they do not demonstrate a likelihood of success on the merits, establish irreparable harm, or show that a preliminary injunction would be in the public's interest, this motion should be denied.

1. Plaintiffs Have Failed To Satisfy the Standards For Issuance of Injunctive Relief.

A. Plaintiffs Bear a Heavy Burden to Justify the Grant of Preliminary Injunctive Relief

The grant of a preliminary injunction is a drastic and unusual judicial measure. Marine Transport Lines, Inc. v. Lehman, 623 F. Supp. 330, 334 (D.D.C. 1985). Issuance of a preliminary injunction is appropriate only if the movant clearly demonstrates that: (1) it has a substantial likelihood of succeeding on the merits; (2) it will suffer irreparable harm if the injunction is not granted; (3) other interested parties will not suffer substantial harm if the injunction is granted; and (4) the public interest will be furthered by the injunction. Serono Labs, Inc. v. Shalala, 158 F.3d 1313, 1317-18, 1325 (D.C. Cir. 1998); Sea Containers, Ltd. v. Stena AB, 890 F.2d 1205, 1208 (D.C. Cir. 1989).

These factors "interrelate on a sliding scale and must be balanced against each other." Davenport v. International Brotherhood of Teamsters, AFL-CIO, 166 F.3d 356, 360-61 (D.C. Cir. 1999). The balancing test is a flexible one, permitting a court to issue injunctive relief when the likelihood of success is high, although probability of irreparable harm may be low, and vice versa. See Population Instit. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986). See also, World Duty Free Americas. Inc. v. Summers, 94 F. Supp. 2d 61, 64 (D.D.C. 2000)(RCL).

Nevertheless, although it is a flexible standard, the moving party must demonstrate both elements of a likelihood of prevailing on the merits and a showing of irreparable harm. District 50, United Mine Workers of Am. v. International Union. United Mine Workers of Am., 412 F.2d 165, 167 (D.C. Cir. 1969). Indeed, in this Circuit a "substantial indication"of likely success on the merits is a sine qua non of preliminary injunctive relief. Absent such a substantial indication, "there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review." American Bankers Ass'n v. National Credit Union Admin., 38 F. Supp.2d 114, 141 (D.D.C. 1999) (quoting WMATA v. Holiday Tours. Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)). "[T]he party seeking injunctive relief bears a substantial burden to show that the party is entitled to such an extraordinary remedy." Competitive Enters. Instil.. Inc. v. United States Dep't. of Agric., 954 F. Supp. 265, 269 (D.D.C. 1996); Herrera v. Riley, 886 F. Supp. 45, 48 (D.D.C. 1995).

Applying this standard in this case plainly reveals that plaintiffs are not entitled to preliminary injunctive relief. Not only have they failed to demonstrate a substantial likelihood of success on the merits, but they have also failed to show the existence of any genuine irreparable harm or that an injunction would serve the public interest. Consequently, for the reasons outlined below, plaintiffs' Motion for Preliminary Injunction should be denied.

B. Plaintiffs Cannot Show a Substantial Likelihood of Success on the Merits

Because plaintiffs have little or no likelihood of success on the merits, a preliminary injunction should not be issued. As described more fully in Defendants' Motion to Dismiss First Cause of Action, and its Reply brief, both incorporated herein, this Court does not have jurisdiction with regard to the claims relating to the Paperwork Reduction Act. Plaintiffs have failed to identify a waiver of sovereign immunity that authorizes their claims against EPA and OMB. The PRA charges OMB with the responsibility for deciding whether an agency's collection of information is consistent with the PRA and bars judicial review of OMB's decision. The PRA, expressly and unambiguously, provides that "[t]he decision by [OMB] to approve or not act upon a collection of information contained in an agency rule shall not be subject to judicial review." 44 U.S.C. . 3507(d)(6). Plaintiffs cannot rely on the waiver of sovereign immunity in the Administrative Procedure Act (APA) for its claims against OMB because the APA states that it does not apply where another statute precludes review. 5 U.S.C. § 701(a)(1). Nor may EPA's actions with regard to the ICR be reviewed. The APA authorizes judicial review only of final agency action and EPA's actions at issue here do not meet the definition of "final." Therefore, plaintiffs do not have much likelihood of success on the merits, much less substantial likelihood of success on the merits.

C. Plaintiffs Have Not Demonstrated That They Will Suffer Irreparable Harm

1. Plaintiffs' Feared Harm Is Speculative at Best

To be entitled to the extraordinary relief of stopping the implementation of regulations that have been adopted with an effective date of July 1, 2001, known to plaintiffs for over a year, plaintiffs must demonstrate that they will be irreparably harmed. Beacon Theatres v. Westover, 359 U.S. 500, 506-07 (1959): see also Rondeau v. Mosinee Paper Corp., 422 U.S. 49 (1975). Plaintiffs have not shown that they will suffer irreparable harm absent injunctive relief.

Plaintiffs assert that the harm occurs because when the information about their release and other waste management ofdioxins is reported publicly, plaintiffs will suffer from "an unfair and generalized public stigma" with a subsequent loss of revenue. See Pi. Motion at 10-11. Assuming for a moment that there will be a subsequent monetary loss, such loss is not irreparable harm unless it threatens the very existence of plaintiffs' business. The law is well settled that "the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury." Sampson v. Murray, 415 U.S. 61, 90 (1974). As noted in Varicon Intern, v. Office of Personnel Management, 934 F.Supp. 440, 447 - 448 (D.D.C. 1996):

It is well ... settled that economic loss does not, in and of itself constitute irreparable harm. . . [m]onetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant's business. . . Moreover, the movant must "provide proof... indicating that the harm is certain to occur in the near future" and that "the alleged harm will directly result from the action which the movant seeks to enjoin."

Id., citing Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.l985)(other citations omitted). See also Vencor Nursing L.P. v. Shalala, 63 F. Supp. 2d I (D.D.C. 1999) (monetary loss alone accorded little or no weight in analyzing irreparable harm); Nichols v. A.I.D., 18 F. Supp. 2d. I (D.D.C. 1998) (loss of job and salary without more insufficient to demonstrate entitlement to injunctive relief). Even where courts have estimated loss to businesses, it has not been sufficient to establish irreparable harm. Varicon Intern, v. Office of Personnel Management, 934 F. Supp. 440, 448 (D.D.C. 1996) (loss of ten percent business not irreparable), and citing Arrow Air, Inc. v. United States, 649 F.Supp. 993 (D.D.C. 1986) (loss of twenty-five percent of gross revenue insufficient to establish irreparable harm) and Mead Johnson Pharm. Group v. Bowen, 655 F.Supp. 53 (D.D.C.1986) (loss of twenty to thirty percent of company's market does not adequately demonstrate irreparable harm).

Mere speculation, therefore, is certainly insufficient to establish irreparable harm. In Wisconsin Gas v. FERC, 758 F.2d 669 (D.C. Cir. 1985), the Court of Appeals cautioned against speculative and unsubstantiated claims of irreparable injury. It advised:

First, the injury must be both certain and great; it must be actual and not theoretical. Injunctive relief 'will not be granted against something merely feared as liable to occur at some indefinite time,". . .; the party seeking injunctive relief must show that "[t]he injury complained of is of such imminence that there is a 'clear and present' need for equitable relief to prevent irreparable harm."

Id at 674 (emphasis in original).⁵ In this case, plaintiffs rely upon a declaration by a plaintiff representative who claims that current or potential clients will avoid using plaintiffs' products because of fears relating to the presence of dioxins in the treatment process. See Forshaw at ¶¶8, 9-14.

Although plaintiffs claim is that they will be irreparably harmed when they comply with the regulation to take effect on July 1, 2001, and information becomes publicly available relating to their release of dioxins that claim is unsupported. According to plaintiffs, their potential clients are already aware of the potentially dangerous nature of the chemicals used in processing treated lumber and, without any information from defendants regarding the releases, have changed suppliers.⁶ See Forshaw at ¶¶9 , 11-13. Plaintiffs' claims of harm, therefore, are purely speculative at this juncture, and do not satisfy their burden to warrant a preliminary injunction. See Wisconsin Gas, 758 F.2d at 674.

2. Release of non-TEQ data does not cause irreparable harm

A substantial portion of plaintiffs' claims of irreparable harm rests on the allegation that the information that the public receives from TRI reporting will be misleading because facilities must report the actual amount of their dioxin releases, rather a fraction that would be calculated based on each individual compounds comparative toxicity (e.g., a toxic equivalence quantity (TEQ) methodology). However, even assuming that plaintiffs are correct that the public would be confused by receiving information on the total quantity of dioxin that plaintiffs release, the information that facilities must report permits the public to calculate TEQs for the reported dioxin data. In addition to reporting the total annual quantity, facilities must report "a distribution of the chemicals included in the dioxin and dioxin-like compounds." 40 C.F.R. §372.85 (b)(15)(ii). With the distribution of the individual members of the category, the public can calculate the grams TEQ that correspond to the absolute grams that facilities have reported, simply by estimating the grams of an individual compound based on the facility's distribution, and multiplying it with the appropriate toxic equivalent factor (TEF). TEFs are available on the EPA website, as well as the World Health Organization's website. Moreover, EPA is working with various organizations to provide the public with access to supplementary information on reported dioxin releases, for which the TEQs have been calculated. Plaintiffs are also capable of calculating this information themselves and clarifying it for any customers who have questions.

3. Delay in Seeking Injunction Argues Against Its Grant

In Fund for Animals v. Frizell, 530 F.2d 982 (D.C. Cir. 1976), the Court denied a preliminary injunction challenging regulations of the Fish and Wildlife Service, finding no irreparable injury and specifically noting:

Our conclusion that an injunction should not issue is bolstered by the delay appellants were mailed advance copies of the regulations on August 8), an injunction against the proposed regulations was not sought until September 29, when the instant action and a motion for a temporary restraining order was filed in district court with respect to the final regulations published on that same date. So far as any right to an injunction pendente lite based on a due process claim is concerned, appellants knew on August 15th that what they allege to be their right to a more extensive comment period was to be denied to them. Yet they delayed bringing any action until 44 days later, when the final regulations were issued. We find this delay to be inexcusable.

530 F. 2d at 987. In the instant case, plaintiffs have been aware of the effective date of the challenged regulation for over a year and yet waited until just over two weeks before the effective date of July 1, 2001, to file for injunctive relief.

D. Balancing of Interests and Public Interest

The final factors weighing against granting the extraordinary relief sought by the plaintiff are the balancing of harms and the public interest. As discussed above, plaintiff has failed to prove they have any likelihood of success on the merits or that they will suffer irreparable harm. The remainder of the test for issuance of a preliminary injunction, a balancing of the interests involved and consideration of whether the injunction serves the public interest, argue against the grant of extraordinary relief.

This Circuit has held that the public interest is a crucial factor in deciding whether to grant an injunction where the administration of regulatory statutes designed to promote the public interest is at issue. See, e.g., Virginia Petroleum Jobbers v. Federal Power Commission 259 F.2d 921, 925 (D.C. Cir. 1958) (in litigation involving the administration of regulatory statutes designed to promote the public interest, the interests of private litigants must give way to the realization of public purposes); Mt Airy Refining Co. v. Schlesinger, 481 F.Supp. 257, 284-285 (D.D.C 1979).⁷ In the instant case, an injunction would not further the public interest.

Granting an injunction deprives the public of information on the quantities of dioxins, all highly toxic chemicals, that facilities have released or otherwise managed in local communities, thereby frustrating a Congressionally protected interest. Congress established EPCRA section 313 in explicit recognition that the public has a right to information on chemical releases and other waste management activities in their communities, as well as the hazards associated with these chemicals. The requirement is intended to further the public's ability to estimate local exposures, and thereby take an active role in determining the levels of acceptable risks such releases present in their community. Consistently, this Circuit's assessment of the public interests potentially affected by an injunction has been guided by the legislative purposes inherent in/expressed by the statutes at issue in the case. See, e.g., Serono Labs v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998)(relying on purposes of Federal Food Drug and Cosmetic Act to determine public interest); National Wildlife Federation v. Burford, 835 F.2d 305, 326-327 (D.C. Cir. 1987)(relying on purposes of Federal Land Policy and Management Act in determining public interest); National Association of Farmworkers v. Marshall, 628 F.2d 604, 616, n.5 (D.C. Cir., 1980)(balancing interests reflected in two different statutes in determining public interest, noting "this appears to be the balance struck by Congress").

Moreover, information on the environmental releases and other waste management of dioxins is particularly significant because, in addition to their intrinsic hazard, they both persist and bioaccumulate. Individually, each of these attributes has the potential to pose increased exposures to humans and the environment. Toxic chemicals possessing both attributes have the potential to pose significant exposures to humans and ecosystems over a longer period of time; even small amounts ofPBT chemicals that enter the environment can accumulate to elevated concentrations in the environment and in organisms, and therefore have a greater potential to result in adverse effects on human health and the environment. This is particularly true of the dioxins because they are highly persistent and highly bioaccumulative. See, 64 Fed. Reg. at 58,712, 58, 714, and 58, 724. Thus, the loss of a year's data takes on greater significance.

An injunction would also unduly interfere with the government's implementation of EPCRA section 313. As explained at length in the preamble to the challenged rulemaking, this rule played a significant role in furthering the Agency's implementation of EPCRA section 313. See, 64 Fed. Reg. at 58, 687. Following from legislative guidance, this rule was intended to fill some of the sigpificant gaps that currently exist in the picture the TRI data provides local communities, government agencies, and researchers; specifically, the limited picture of potential community-specific exposure ofPBT chemicals to humans and the environment presented by releases and other waste management currently available from the TRI data.

The public's interest in the conservation of judicial resources and in the orderly administration of justice also argues against granting plaintiffs' request. Contrary to plaintiffs' allegations, the public interest is not furthered by continuing to expend public resources on a claim of which Congress has expressly and unambiguously barred judicial review.⁸ Given the extremely low likelihood that plaintiffs will succeed on the merits, the equities argue against further expenditure of judicial resources.

Moreover, the deadline for reporting in accordance with the challenged rule was established in October 29, 1999, when the rule was promulgated. Yet, as discussed above, plaintiffs have delayed their request for an injunction until two weeks before the first reports are due. Such a request could have been filed at any time in the past year, rather than procrastinating until just before the reporting deadline. See, Headwaters, Inc. v. BLM, 665 F.Supp. 873, 875-876 (D.Or. 1987)(considering plaintiffs delay in seeking preliminary injunction in denying injunction), citing Lydo Enterprises v. City of Las Vegas, 745 F.2d 1211,1213 (9th Cir. 1984). Granting an injunction in such circumstances effectively encourages parties to wait until the eleventh hour in order to seek expedited consideration from the Court, thereby displacing parties who have filed timely motions. The Court should not reward plaintiffs by granting the injunction in the face of such facts.

Plaintiffs already acknowledge that other people and commercial entities are aware of the potentially hazardous nature of their byproducts, see Forshaw at ¶¶9, 11-13, so requiring plaintiffs to quantify such byproducts can hardly be the death knell for their business that they predict. In fact, to the extent that one of the plaintiffs is an association of manufacturers, it is entirely possible that certain manufacturers who contribute noticeably less amounts might be in a favored status among consumers. Unfortunately, this possibility is as speculative as plaintiffs' claims of damage and speculation does not require preliminary injunctions from the court.

Moreover, to the extent that plaintiffs are claiming that they have a procedural interest in being able to comment on OPM's acceptance of EPA's Information Collection Request (ICR), they have no standing to make such a claim. See Council on Regulatory and Information Management. Inc. v. U.S. Department of Labor, D.C. Civ. No. 93-2362 (Memorandum Order of February 25, 1994), attached as Defendants' Motion to Dismiss as Attachment I, citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). See also discussion, Defendants' Memorandum in sunnort of Motion to Dismiss First Cause at n.1.

The balance of interests, including the public interest at stake in this matter, therefore weigh directly with the government's interest in effectuating Congress' intent that the public is informed about the release and other waste management of toxic chemicals in their communities. As this Circuit has noted, "[a] federal equity court may exercise its discretion to give or withhold its mandate in furtherance of the public interest, including specifically the interest in effectuating the congressional objective incorporated in regulatory legislation." Natural Resources Defense Council, 510 F. 2d 692, 712 (D.C. Cir. 1975) (citations omitted). As described, in this case, the public interest is twofold. First, Congress specifically prohibited judicial inquiry into OMB'sdecision on EPA's information collection request in order to avoid needless litigation. See discussion. Defendants' Motion to Dismiss at 7-9. Second, looking beyond the procedural argument of plaintiffs, the intent of the underlying regulations at issue is to provide the public with information about toxic chemicals being released into the environment. See Final Rule, 64 Fed. Reg. 58,667 (Oct. 29, 1999), and discussion. Defendants' Motion to Dismiss at 4-5. Therefore, the factors of balancing of harm to the parties and analysis of the public interest compels a denial of plaintiffs' motion for a preliminary injunction.

Conclusion

Therefore, because plaintiffs do not meet any of the requirements for the grant of the extraordinary relief of a preliminary injunction, plaintiffs' Motion should be denied.

¹ Repods are generally required for any listed chemical or chemical category if a facility manufactures or processes at least 25,000 pounds, or otherwise uses at least 10.000 pounds, of the chemical or chemical category in a year.

² Since 1991, these facilities have also been required under Section 6607 of the Pollution Prevention Act of 1990, 42 U.S.C. § 13106, to report pollution prevention and recycling data for chemicals on the TRI list.

³ EPCRA also requires EPA to establish and maintain a publicly accessible computer database containing a national toxic chemical inventory based on the reports submitted under Section 313. 42 U.S.C. § 11023(j). The database is known as the Toxic Release Inventory ("TRI"). The information enables the public, governments and the regulated community to understand the magnitude of chemical disposition and management throughout the United States; to compare chemical releases of toxic chemicals among states, industries, and facilities; and to assess the need to reduce and where possible eliminate the use and release of toxic chemicals. 59 Fed. Reg. 1,788.

⁴We specifically note here that plaintiffs are NOT raising any issues in their motion other than those under the Paperwork Reduction Act. It therefore appears that plaintiffs and defendants are in agreement that this Court's decision of the pending Motion to Dismiss the First Claim of the Amended Complaint would also determine the outcome of the plaintiffs' Motion for a Preliminary Injunction. See P1. Motion at 7.

⁵ Plaintiffs' reliance on this Court's opinion in World Duty Free Americas v. Summers. 94 F. Supp. 2d 61, 66 (D.D.C. 2000) (RCL) is not persuasive in that, in that case, the court specifically found that the harm to the plaintiffs could "threaten the very existence of movant's business," citing Wisconsin Gas Co., supra, with approval.

⁶ Plaintiffs' reliance on Patriot, Inc. v. Department of Housing & Urban Dev., 963 F. Supp. I (D.D.C. 1997), is misplaced. PI. Motion at 12. In that case, as in World Duty Free Americas, supra, the Court's ruling that the economic harm flowing from the agency's challenged action was irreparable because it threatened the "very existence of plaintiffs business." Patriot, 963 F. Supp. at 5. Patriot, was barred from the reverse mortgage market. The Court also noted that "[a]ny senior citizen who does not wish to continue its relationship with Patriot may simply terminate the relationship because Patriot's service fee agreements are terminable by the client at any time prior to the client receiving funds from a reverse mortgage loan." Id. The federal taxpayers whose funds are received by grantees which plaintiff would be allowed to audit if an injunction were entered would not have that luxury.

⁷ See also, Christie-Spencer Corp v. Hausman Realty, 118 F.Supp.2d 408, 423 (S.D.NY 2000) ("when a case is brought pursuant to an environmental or health statute, the focus of the irreparable harm inquiry shifts to concern for the public interest").

⁸ Moreoever, as noted in the government's Reply, even plaintiffs' PRA claims judicially reviewable, they have failed to demonstrate that EPA has failed to comply with the statute's requirements.ÿ See, Def. Rep. At 3, n.2.

CERTIFICATE OF SERVICE

I certify that on June 25, 2001, I caused the foregoing to be served on plaintiffs counsel, by facsimile and regular mail, postage prepaid, and facsimile upon counsel as follows: