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EPA Dioxin Reporting Rule Prompts New Litigation Leave a Comment
CRE Advisory Board Member Jim Tozzi is suing EPA over the agency's new Toxic Release Inventory reporting requirements for dioxin and 16 related compounds. The new final rule, which was released October 29, 1999 as part of the new requirements for reporting of persistent bioaccumulative toxic ("PBT") chemicals, would require companies to report releases of the dioxins and related compounds for the first time. The rule sets a reporting threshold of 0.1 grams for all such chemicals combined. (Annual releases equaling or exceeding this 0.1 gram amount would have to be reported to EPA on TRI Form R.) EPA indicated in its final rule that it would provide further clarification -- in the form of agency guidance -- on how the agency intended to calculate the amounts of the chemicals that each company would be deemed to have released.

The new rule represents a revision to the information collection requirements previously imposed under EPCRA section 313, 42 U.S.C. 11023. In order to make the revision effective, EPA is required to obtain OMB approval for the new information collection pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. Tozzi and the other plaintiffs charge that, by failing to include information on how the 0.1 gram figure would be calculated, the agency's information collection request to OMB was fatally incomplete.

EPA did submit an information collection request package to OMB for approval in late 1999, and OMB approved the package on January 31, 2000, the same day the suit was filed. That "clearance package" or "ICR" did not contain the methodology by which EPA would calculate the release amounts, however. Plaintiffs therefore claim that the public could not have intelligently commented on -- and OMB could not have assessed -- the "practical utility" of the request, the "burden" on respondents, and other key issues that are part of the Paperwork Reduction Act approval process.

In addition to Mr. Tozzi, plaintiffs in the case include a major wood preserver trade association and an individual wood treater company that would be subject to the new reporting rules. The government has not challenged the plaintiffs' standing to bring the suit.

Cutting Edge Legal Claim Based on Paperwork Reduction Act
The TRI litigation, which is being tried before U.S. District Court Judge Royce Lamberth in Washington, D.C., is likely to set important precedent in the field of administrative law. At issue as a preliminary matter is whether courts may review certain determinations of OMB under the Paperwork Reduction Act.

The government has moved to dismiss the Tozzi plaintiffs' Paperwork Reduction Act claims, citing a statutory provision that allegedly bars judicial review. The government asserts that, under the PRA framework, decisions of OMB to approve a clearance package are simply outside the province of the court system. In support of this claim, the government cites section 3507(d)(6) of the Act, which provides:
The decision by the Director [of OMB] to approve or not act upon a collection of information contained in an agency rule shall not be subject to review.
44 U.S.C. 3507(d)(6). As noted, OMB did approve the clearance package that EPA submitted in connection with the final PBT rule, and some observers suggested that this ended the matter because, they believed, the above provision constituted an absolute bar to relief from the courts.

In a 30-page opposition brief filed May 25, 2000, however, Tozzi and the other plaintiffs argued that the above statutory provision did not apply to their case for several reasons. [Read Tozzi Opposition Brief; Read Table of Contents for Brief] First, they noted that the Administrative Procedure Act strongly favors judicial review. Next, they argued that the statutory preclusion provision does not bar review of two of the three steps involved in ICR approvals (a point the government concedes), and that the jurisdictional prerequisites for OMB review and approval were never met. Third, plaintiffs argued that, because much of the critical detail was to be provided in an agency guidance, the ICR itself was not "contained within an agency rule", as the statute requires. Fourth, plaintiffs cited extensive case authority demonstrating that, in circumstances similar to this one, courts have refused to apply statutory provisions that would have precluded judicial review.

In addition to the statutory preclusion argument, the government also contended that there is no private right of action under the Paperwork Reduction Act. Plaintiffs countered that their right of action stems, not from the Paperwork Act, but from the APA itself, which affords a right of action to any "person . . . adversely affected or aggrieved" by final agency action. No court has squarely ruled on the right of action question in the context of a Paperwork Reduction Act claim, however, and the Tozzi case could therefore set important precedent on this issue as well.

Plaintiffs also assert that the agency's failure to justify the 0.1 gram annual reporting threshold violates the statutory requirements set forth in EPCRA. Specifically, Plaintiffs claim that EPA's failure to use "TEQ" methodology for expressing releases under the final rule amounted to arbitrary and capricious agency action.
  • Table of Contents
  • Hearing Scheduled
    Plaintiffs have moved to enjoin EPA from requiring the new reporting under the final rule, which would be due July 1, 2001, and to prevent EPA from publicly disclosing any such data the agency has already received. Judge Lamberth will hear arguments on that motion June 29, 2001.