|
IN THE UNITED STATES DISTRICT COURT Case No. _________ JIM J. TOZZI, President, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION Defendants. -------------------------------------------------------------------- DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES Pursuant to Rules 108(b) and 205(c) of the Local Rules of this Court, defendants hereby submit their memorandum of points and authorities in opposition to plaintiffs’ motion for preliminary injunction. PRELIMINARY STATEMENT Plaintiff seeks to enjoin the Environmental Protection Agency (EPA) under the Paperwork Reduction Act of 1995 (PRA), as amended, 44 U.S.C. § 3501, et seq., from public dissemination and publication, on the Internet or otherwise, of data and information on the compliance history, pollutant releases, and the toxicity of released chemicals of 661 facilities in five national industries, under an EPA Sector Facility Indexing (SFI) Project. The SFI Project brings together data and information collected under an EPA Toxics Release Inventory (TRI) program approved by the Office of Management and Budget (OMB) in compliance with the requirements of the Paperwork Reduction Act integrated with data and information collected with OMB approval from other existing systems, for data users, including EPA, members of the public, industries, and trade associations. Plaintiff alleges that the SFI data and information constitute a "substantive or material modification to a collection of information" under Section 3507(h) (3) of the PRA, which he contends requires EPA to undergo new notice and comment procedures and approval by OMB before the SFI results may be publicly released. However, OMB has advised plaintiff, pursuant to its authority as the agency charged by the PRA with the management of the collection and use of information resources under the Act, see 44 U.S.C. § 3504, 3505, that the dissemination of data and information collected under OMB approval does not require further OMB approval or formal notice and comment procedures, and does not give rise to a private cause of action under the PRA. See Declaration of OMB General Counsel Robert G. Damus ("Damus Decl."), EPA Exhibit A, at ¶¶ 13, 16, 20, 21. The motion for preliminary injunction must be denied, because plaintiff cannot establish that he meets the four factors necessary to justify this extraordinary remedy: 1. Plaintiff has not shown a substantial likelihood of success on the merits: (a) The PRA creates no private right of action to permit plaintiff to bring an action for an alleged violation of the Act. The public protection section of the Act, which establishes a defense against penalties, 44 U.S.C. § 3512, is the only remedial provision in the Act. Congress could have explicitly provided for a private right of action had it intended to create such a right. (b) Plaintiff’s reliance upon Section 3607 (h) (3), which requires OMB approval before an agency may make "a substantive or material modification to a collection of information," flows from a misreading of the statute. As OMB, the agency charged with the administration of the statute, has declared, that section refers to changes in the "collection of information," in which an agency asks or requires respondents to take action, e.g., to fill out a form, not to actions that the agency may undertake in its use of the information that is collected. (c) The use of the data and information collected under the TRI program was not restricted to the various uses described in the Information Collection Request; indeed, the OMB imposed no restrictions whatsoever. Additional use of the TRI data in the SFIP serve the purpose and mandate of the statute to "ensure the greatest possible public benefit from and maximize the utility of the information created, collected, maintained, used, shared and disseminated by the Federal Government," 44 U.S.C. § 3501 (2); see also 44 U.S.C. § 3504 (c) (4). (d) Plaintiff’s contention that the SFI data and information constitute a flawed "substantial or material modification" of the information collected under 44 U.S.C. § 3507 (h) (3) is without foundation. The TRI Information Collection Request discussed many uses to which the TRI is put by a variety of users, and disclosed that TRI data and information had been used with other sources of data for a variety of uses. The release of data under the SFI Project does not represent any new policy, data management shift, or new collection, but rather highlights steps EPA has taken in making data systems more integrated. 2. Plaintiff has not shown irreparable injury to himself if a preliminary injunction is not granted. Indeed, he has not shown injury at all. Plaintiff is a lobbyist who represents trade associations and corporations in several industries. As an indispensable part of his case, Plaintiff does not have standing to bring this action because he cannot show a particularized, concrete, individualized, and actual threat of harm personal to himself. Further, no possible real parties in interest, are parties to this case, and are not members of his organization. To the extent plaintiff claims a personal right to participate in filing comments, he expresses only a general grievance available to every citizen, which cannot confer standing. 3. Plaintiff cannot show that the injunction will not substantially harm other parties. Plaintiff’s contention that the public will be harmed by dissemination of the information in its present state is without merit. The SFI data and information have been properly assembled from information that was collected through collections of information approved by the OMB, and maintained by EPA in several databases. The SFI data and information are available to the public pursuant to the Freedom of Information Act, 5 U.S.C. § 552, and the PRA, see 44 U.S.C. §§ 3505, 3506, 3511, and are being disseminated in response to request by a wide range of stakeholders to integrate the collected information into a single source of reliable and timely environmental performance information. Plaintiff’s contention that release of the SFI data and information will cause irreparable harm to hundreds of industrial facilities because the SFI project has not been subjected to comment and OMB approval procedures is likewise without merit. As a matter of law, EPA was not required to secure OMB approval for use of the OMB approved collection of TRI data and information in the SFI Project. As a matter of fact, EPA has acted vigorously to solicit, receive, review, and respond to comments on the validity of the SFI data and information. 4. Plaintiff cannot demonstrate that the injunction would not significantly harm the public interest. There is a great public interest in the public dissemination of the SFI data and information to inform the industries and individual companies involved, the states, and the public generally of the present degree of compliance of the facilities with regulatory standards for pollution prevention and chemical toxicity controls. The PRA itself manifests a purpose and interest to maximize the dissemination of information collected by federal agencies in compliance with the requirements. See 44 U.S.C. §§ 3501(2), (7), 3504(a) (1) (B) (ii), (b) (2), (c) (4), (d), 350(b) (1) (c), (d). THE STATUTORY FRAMEWORK The PRA is the successor to the Federal Reports Act of 1942, whose purpose it was to coordinate the information collection activities of federal agencies, thereby reducing the cost of these activities to the government and to businesses and individuals required to file reports. United Steelworkers of America, AFL-CIO-CLC v. Pemdergrass, 855 F.2d 108, 111 (3d Cir. 1988), aff’d, Dole v. United Steelworkers of America, 494 U.S. 26 (1990). The PRA of 1980, which superseded the Federal Reports Act, was enacted "to reduce the flow of paperwork that individuals, small businesses and local governments were required to complete for the federal government." Kuzma v. USPS, 798 F.2d 29, 31 (2d Cir. 1986). See also United States v. Smith, 866 F.2d 1092, 1094 (9th Cir. 1989); Gossner Foods, Inc. v. EPA, 918 F. Supp. 359, 361 (D. Utah 1996). "Among its purposes are: (1) the minimization of the Federal paperwork burden for individuals, small businesses, state and local governments, and other persons; (2) the minimization of the cost to the Federal government of collecting, maintaining, using, and disseminating information; and (3) the coordination and integration of Federal information policies and practices." Shane v. Buck, 658 F. Supp. 908, 912 (D. Utah 1985), aff’d, 817 F.2d 87 (10th Cir. 1987). The current statute, the PRA of 1995, 44 U.S.C. §§ 3501, et seq., was enacted to "(1) Reauthorize appropriations" for the OMB’s Office of Information and Regulatory Affairs (OIRA); "(2) Strengthen OIRA and agency responsibilities for the reduction of paperwork burdens on the public, particularly through the inclusion of all Federally sponsored collections of information in a clearance process involving public notice and comment, public protection, and OIRA review; (3) Establish policies to promote the dissemination of public information on a timely and equitable basis, and in useful forms and programs; (4) Strengthen agency accountability for managing information resources . . .; and (5) Improve OIRA and other central management agency oversight of agency information resources management (IRM) policies and practices." H.R. Rep. NO. 104-37, at 2-3 (1995), reprinted in 1995 U.S.C.C.A.N. 164-65.
44 U.S.C. § 3501. Before undertaking any "collection of information," an agency is required to publish notice of its proposed collection and allow for comment. 44 U.S.C. § 3506(c). The agency must evaluate the comments received, and then submit it to the OMB for review and approval, and publish in the Federal Register a notice that states that the request has been submitted to the OMB and requests public comments. 44 U.S.C. §§ 3504 (c) (1), 3507(a). OMB is required to provide at least 30 days for public comment prior to making a decision. 44 U.S.C. § 3507(b). "Before approving a proposed collection of information, the Director [of OMB] shall determine whether the collection of information by the agency is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility." 44 U.S.C. § 3508. If OMB then approves a proposed collection of information, OMB issues a control number that must be displayed on the collection of information. 44 U.S.C. § 3507(a) (2) and (3). OMB’s approval of the collection of information may be renewed after three years upon request by the agency after further review and approval by the OMB. 44 U.S.C. § 3507 (g), (h) (1). "An agency may not make a substantive or material modification to a collection of information after such collection has been approved by the Director [of OMB], unless the modification has been submitted to the Director for review and approval under this chapter." 44 U.S.C. § 3507(h) (3). FACTUAL BACKGROUND The TRI program implements and administers the requirements of Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11023, which requires covered facilities to file toxic chemical release forms with EPA and their respective states. Declaration of William H. Sanders III, Director, Office of Pollution Prevention and Toxics ("Sanders Decl."), EPA Exhibit B, at ¶ 2. EPA compiles these forms into the Toxics Release Inventory (TRI), a nationwide toxic chemical release inventory on a computerized database for general release. Id. The purpose of the program is to provide information to government and the public, including citizens of communities surrounding covered facilities, to become informed of toxic chemical releases to the environment, conducting research, and developing regulations, guidelines, and standards. Id. The form requires information on the facility’s location and other characteristics, and detailed information on the disposition of the toxic chemical, including amounts released to air, land, and water, and amounts transferred to other facilities. Id. at ¶ 2. EPA secured OMB approval for a renewal of the TRI collection of information in compliance with the Paperwork Reduction Act, see id. at ¶¶ 6-13: 1. On August 30, 1996, EPA issued a public notice published in the Federal Register and requested comments on a proposed renewal of its Information Collection Request (ICR) #1363.05 on Toxic Chemical Release Reporting. 61 Fed. Reg. 45964 (1996), EPA Exhibit C. See Complaint at ¶ 21. In an abstract in the notice, the EPA declared:
61 Fed. Reg. at 45966. 2. After reviewing the comments submitted, on November 21, 1996, EPA issued a notice published in the Federal Register that it had forwarded the Information Collection Request to OMB for review and approval, and requesting that any additional comments be submitted to EPA and OMB. 61 Fed. Reg. 59226 (1996). See Complaint at ¶ 22. The notice repeated the same abstract. 61 Fed. Reg. at 59226-27. EPA Exhibit D. 3. On April 30, 1997, OMB granted approval for renewal of the same Information Collection Request. EPA Exhibit E. See Complaint at ¶ 24. As indicated in the Information Collection Request for OMB approval, the TRI is put to many uses by a variety of users. Sanders Decl., EPA Exhibit B, at ¶ 11. One use of the TRI data is a project known as the Environmental Indicators Model, having as its purpose to develop methods to incorporate toxicity, exposure, and pollution considerations into the evaluation of toxic chemical releases, in order to improve understanding of the relative risk of such releases. Id. at ¶ 14. This Model forms part of the SFI Project. Id. at ¶ 11. The TRI serves with several other independent databases, that contain information collected pursuant to information collection requests that were reviewed, approved, and assigned currently valid control numbers by OMB, as the foundation of the SFI Project. Declaration of Elaine G. Stanley, Director of the Office of Compliance, Office of Enforcement and Compliance Assurance ("Stanley Decl."), EPA Exhibit F, at ¶ 2. As currently planned, the SFI is a pilot data integration effort to synthesize existing environmental records from several publicly available data sources into a system that allows facility-level and industrial sector analysis:
Id. at ¶ 3. The SFI Project is designed to integrate various existing publicly available database into an integrated system providing user access at a single location:
Id. at ¶ 7. For each facility within the five sectors, the SFI Project will include information on the following topics: name, location, permits held under major statutory programs, inspection and compliance history, self-reported chemical releases, the relative toxicity of chemicals released, the population surrounding the facility, that actual production or production capacity, and pollutant spill information. Id. at ¶ 8. All of this information is public. Id. The TRI data system, is the most thorough source of pollutant information, due to its consistently structured format and nationally-used reporting requirements. Id. at ¶ 9. The SFI Project enhances the utility and the presentation of TRI data by including information regarding compliance with requirements of other media programs, and by applying a toxicity weighting factor, but the SFI Project does not change the self-reported numbers drawn from the independent databases; it simply enhances their utility by adding the toxicity weighting factors and other information. Id. at ¶¶ 9,10. In developing the SFI Project, for considerably more than one year and continuously to the present time and prospectively into the future, EPA has extensively solicited the views and comments of the public, the states, and various interested parties on the validity and utility of the SFI data and information, Stanley Decl., EPA Exhibit F at ¶¶ 12-14: 1.On November 5, 1996, EPA sent each State Commissioner a letter describing the SFI Project, and invited State participation and assistance in the project. EPA Exhibit G. 2.Since that time, EPA has initiated extensive efforts to obtain State involvement in the Project, following suggestions outlined in a Spring 1997 resolution of the Environmental Council of States. EPA has: a.Provided an opportunity for State review of the data during a combined Regional/State review period conducted between November 21, 1996, and February 28, 1997; b.Addressed several State meetings on the SFI Project in an effort to ensure that States have the opportunity to be heard and represented; c.Submitted the toxicity weighting used within the SFI Project for review by the EPA Science Advisory Board; d.Held a public meeting inviting comments on the overall purpose and methodology used under the Project, and alternative ways of analyzing and presenting the data. Following the public meeting, EPA held a one month written comment period to accommodate those unable to provide comments in person; and e.On January 13, 1998, held a joint meeting with the Environmental Council of States to discuss State concerns, and shared EPA’s initial assessment of the facility review effort. 3.On April 3, 1997, EPA published a notice in the Federal register of a public meeting on April 29, 1997, before the EPA Science Advisory Board. 62 Fed. Reg. 15190 (1997), EPA Exhibit G. The Science Advisory Board, after review of the toxicity weighting used by the SFI Project, issued a final report on September 30, 1997, concluding that the issue of weighting factors was "a step in the right direction," and referred the issue of toxicity weightings to the agency for final determination. 4.On April 22, 1997, EPA published in the Federal Register a notice of a public meeting held on May 14, 1997, inviting comment on the overall purpose of and methodology used in the Project, and on alternative ways of analyzing and presenting the data. 62 Fed. Reg. 19573 (1997), EPA Exhibit H. Following the public meting, EPA held a one-month written comment period to accommodate those that would not provide comments in person. 5.In response to oral and written comments, EPA provided each facility affected by the SFI Project with a copy of the individual records EPA proposed to include in the SFI Project. See EPA Exhibit I. To date, 410 of the 621 facilities have submitted comments, which were referred to the PA regions in conjunction with the appropriate State agency. On June 12, 1997, plaintiff contacted OMB by petition to raise his Paperwork Reduction Act concerns on EPA’s plans to disseminate information through the FSI Project. Declaration of Robert G. Damus, OMB’s General Counsel, EPA Exhibit A, at ¶ 11. By letter dated July 24, 1997, plaintiff’s attorney requested a meeting with OMB’s General Counsel to discuss the petition. Id. at ¶ 12. By letter dated August 11, 1997, the Administrator of OMB’s Office of Information and Regulatory Affairs Sally Katzen stated that "to the best of [EPA’s] knowledge, the collections of information associated with the SFIP have all been approved by OMB and assigned control numbers, these control numbers continue to be in effect, and EPA has complied with the requirements in 44 U.S.C. 3512 that the collections of information display the applicable control number and (for those approved under the 1995 Act) that respondents be provided the required notice." Id. at ¶ 13; EPA Exhibit J. In addition, Administrator Katzen advised plaintiff that "OMB is not aware of any information contained within the SFIP that was collected in a manner that does not comply with the applicable requirements of 44 U.S.C. 3512," and that "[i]n the absence of any contrary evidence regarding compliance with the requirements of 44 U.S.C. 3512, OMB has concluded that the PRA’s ‘public protection’ provision does not preclude the enforcement of any of the collections of information drawn upon by the SFIP." Id. By letter dated November 21, 1997, plaintiff submitted a "Pre-Filing Review Draft" of a complaint for judicial review and accompanying brief, concerning EPA’s planned dissemination of information through the SFIP. Id. at ¶ 14. On December 22, 1997, OMB’s General Counsel and a staff attorney met with plaintiff and his counsel concerning plaintiff’s legal position regarding the SFI Project and the EPA. Id. at ¶ 15. By letter dated January 26, 1998, OMB’s General Counsel explained in detail that the PRA requires OMB approval before an agency "collects information," but "[t]he PRA does not require any agency to receive OMB’s approval before it publicly disseminates the information" (emphasis in original). Id. at ¶ 16; EPA Exhibit K. EPA has indicated its intention to publish the SFI data and information on or after March 7, 1998. ARGUMENT "To be entitled to a preliminary injunction, [plaintiff] must–at a minimum [fn. omitted]–demonstrate four things: (1) that he is substantially likely to succeed on the merits of his suit; (2) that in the absence of an injunction, he would suffer irreparable harm for which there is no adequate legal remedy; (3) that the injunction would not substantially harm other parties; and (4) that the injunction would not significantly harm the public interest." Taylor v. Resolution Trust Corp., 56 F. 3d 1497, 1504-05 (D.C. Cir. 1995). Accord: City of Las Vegas v. Lucan, 891 F. 2d 927, 931 (D.C. Cir. 1989); Rafted v. INS, 880 F. 2d 506, 519 (D.C. Cir. 1989); National Wildlife Federation v. Burford, 835 F.2d 305, 318 (D.C. Cir. 1987), reh’g denied, 844 F. 2d 889 (D.C. Cir. 1988).. If the movant fails to demonstrate any irreparable injury, the court will not inquire further before denying the injunction. CityFed Financial Corp. v. Office of Thrift Supervision, 58 F. 3d 738, 747 (D.C. Cir. 1995); Sea Containers Ltd. v. Stena AB, 890 F. 2d 1205, 1210-11 (D.C. Cir. 1989). "A preliminary injunction is an extraordinary remedy. It should only be granted if the movant has clearly carried the burden of persuasion on all four . . . prerequisites. The decision to grant a preliminary injunction is to be treated as the exception rather than the rule." Cherokee Pump & Equipment Inc. v. Aurora Pump, 38 F. 3d 246, 249 (5th Cir. 1994), quoting Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F. 2d 618, 621 (5th Cir. 1985). It is a power to be "sparingly exercised." See Dorfman v., Boozer, 414 F. 2d 1168, 1173 (D.C. Cir. 1969). I. PLAINTIFF HAS NOT SHOWN A SUBSTANTIAL A. The PRA Does Not Create a Private Right of Action to Permit Plaintiff to Bring This Suit The Court lacks jurisdiction over the subject matter of this action under Fed. R. Civ. P. 12(b) (1) because the PRA does not create a private right of action to permit plaintiff to file suit asking a court to enjoin the EPA from disseminating data and information in the SFI Project on the grounds that the agency has not complied with statutory requirements for the collection of the data and information. The sole remedy provided by the PRA is expressly limited to the public protection provision of 44 U.S.C. § 3512. That provision states (a) that "no person shall be subject to any penalty for failing to comply with a collection of information . . . does not display a valid control number assigned by the Director [of the OMB] in accordance with this chapter," or the respondent is not so informed by the agency, and (b) that "[t]he protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable hereto" (emphasis added). See, e.g., Saco River Cellular, Inc. v. FCC, ___ F.3d ___, 1998 WL 11788 (D.C. Cir. 1998); United States v. Hatch, 919 F.2d 1394, 1397-98 (9th Cir. 1990); United States v. Smith, 886 F.2d 1092, 1098-99 (9th Cir. 1989). Although the PRA’s public protection provision establishes a defense, there is no provision in the Act for a private person to bring suit for an alleged violation of the Act. The legislative history of the PRA confirms that Congress did not intend to provide any broader use of the PRA to permit injunctive relief as a remedy against alleged agency violations, as it had in the Freedom of Information Act, 5 U.S.C. § 552(a) (4), and Privacy Act, 5 U.S.C. 552a(g). In the floor debate on the PRA of 1980, Senator Danforth noted that the Act permits a party to ignore "bootleg" information collection requests, but the public protection provision of § 3523 nevertheless
26 Cong. Rec. 30171, 30192 (1980), EPA Exhibit L (excerpts). No change in this philosophy was reflected in the 1995 PRA amendments or in its legislative history. Thus, the PRA confers no private right of action for persons to file suit seeking to challenge alleged violations of the Act. United States District Court Edge Oberdorfer of this Court so ruled in denying a motion for preliminary injunction on a claim that an agency had conducted surveys without following notice and comment procedures and without OMB approval required by the PRA. Council on Regulatory and Information Management, Inc. v. Dept. of Labor, Civil Action No. 93-2362-LFO (D.D.C. Dec. 21, 1993) (unreported), EPA Exhibit M.1 The Court held that plaintiff had failed to demonstrate a likelihood of success on the merits because the PRA assigns no private right of action to plaintiffs aggrieved by alleged violations of the Act; the public protection section of the Act, 44 U.S.C. § 3512, is the only remedial section of the Act, and it only establishes a defense against penalties; and Congress could have provided explicitly for a private right of action had it intended to create such a right. Id. at 4-5. The same ruling was adopted from the bench in Portland Cellular Partnership v. United States, Civil Action No. 94-62-P-H (D. Maine June 3, 1994) (unreported), where the Court ruled, Transcript, EPA Exhibit N (excerpts) at 46: Finally, and as an alternative ground for the decision, I do agree with the decision of the District Court, the District of Columbia in Council on Regulatory and Information Management v. The Department of Labor, December 21, 1993, that the Paperwork Reduction Act does not create a private cause of action to sue upon, but rather, creates a defense. It is of course a defense that can be raised with the FCC and on review to the D.C. Circuit . . . . The Paperwork Reduction Act represents an example of a series of statutes where Congress has imposed administrative duties upon an agency without granting a private right of action for persons to file suit seeking to challenge agency action based upon the agency’s alleged failure to comply with requirements of the statute. Thus, in California v. Sierra Club, 451 U.S. 287, 292-98 (1981), the Supreme Court found n private right f action to exist to enjoin operation and construction of water diversion facilities until the consent of the Army Corps of Engineers was obtained as required by statute, observing that "there is no ‘indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one,’" quoting Cort v. Ash, 422 U.S. 66, 78 (1975). Id. at 295. In Universities Research Assn. V. Coutu, 450 U.S. 754, 767-68 (1981), the Supreme Court held that the Davis-Bacon Act does not confer upon an employee a private right of action for back wages under a contract that had been administratively determined not to be subject to the Act’s wage provisions. The Supreme Court observed, "the question whether a statute creates a private right of action is ultimately ‘one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law.’" Id. at 770. The Court declared, id. at 771-72:
In Touche Ross & Co. v. Redington, Trustee, 442 U.S. 560 1979), in holding that there is no implied private cause of action under § 17(a) of the Securities Exchange Act of 1934, the Supreme Court declared, "the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." Id. at 568, quoting Cannon v. University of Chicago, 441 U.S. 677, 688 (1979). "The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action." Id., 442 U.S. at 575. In Chrysler Corp. v. Brown, 441 U.S. 281 (1979), the Supreme Court held that the Freedom on Information Act is exclusively a disclosure statute, id. at 292. Its provisions exempting specified material from disclosure were only meant to permit the agency to withhold certain information, and were not meant to mandate non-disclosure so as to give rise to a private right of action to enjoin agency disclosure. Id, at 292-94. The most significant circumstance to compel the conclusion that the PRA has not created a private right of action to permit persons to bring suit seeking to enforce the Act is that Congress has not explicitly provided such a private cause of action. The language, the legislative history, and the purpose and nature of the Act disclose no intent by Congress to permit persons to file lawsuits seeking to enforce the PRA. Consequently, the Court does not have jurisdiction of the subject matter under Fed. R. Civ. P. 12(b) (1) to grant the relief that plaintiff seeks. B.The Information That Has Been Collected under OMB-Approved It appears to be uncontroverted that the "collection of information" which yields the information that EPA would disseminate through its SFI Project was carried out in full compliance with the requirements of the PRA. See supra at 10-11. Plaintiff does not appear to contest that "the collections of information associated with SFIP have all been approved by OMB and assigned control numbers, these approvals and control numbers continue to be in effect, and EPA has complied with the requirements in 44 U.S.C. 3512 that the collections of information display the applicable control number, and (for those approved under the 1995 Act) that respondents be provided the required notice." Letter, Administrator, Office of Information and Regulatory Affairs of OMB Sally Katzen to Jim J. Tozzi, Aug. 11, 1997, EPA Exhibit J, at 2. The thrust of plaintiff’s complaint, at ¶¶ 1-2, 11, 31-33, 36, and 40-42, motion for preliminary injunction, at 2, and memorandum of points and authorities, passim, is that the use of the data and information collected in the TRI program as applied in the SFI Project is a new use not identified in the Information Collection Request for the TRI Project; that it constitutes substantive and material modifications of existing collections of information within the meaning of 44 U.S.C. § 3507 (h) (3); and that it is therefore subject to renewed EPA and OMB review, public comment, and OMB approval before the data and information may be released. However, as OMB’s General Counsel has pointed out, this is a misreading of the PRA, because 44 U.S.C. § 3507(h) (3) only pertains to the "collection of information" which asks or requires respondents to take action, e.,g., to fill out a form, not to uses which the agency may make of the information that it obtains as a result of the "collection of information":
Damus Decl., EPA Exhibit A, at ¶ 19. The Supreme Court has "long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). OMB’s reading if the statute is plainly reasonable and correct. OMB’s reading of the PRA is also supported by the case law. The courts have had to determine, in applying the PRA’s public protection provision, whether the instruction booklets for the Form 1040 tax return must themselves display an OMB control number. Specifically, the issue was whether the instruction booklets constituted an "information collection request" under the 1980 PRA (the 1980 version of the PRA referred to "information collection request" and "collection of information"; in 1995, Congress consolidated the terms, referring simply to "collections of information"). The courts held that the instruction booklets for the tax return do not need to display an OMB control number because they do not independently constitute an "information collection request." As the courts explained, "the IRS requests all the information it seeks through the 1040 form itself, and the instructing booklets do not ask that any additional information be supplied." United States v. Stiner, 765 F. Supp. 663, 666 (D. Kan. 1991), aff’d without opinion, 952 F.2d 1401 (10th Cir. 1992); United States v. Crocker, 753 F. Supp. 1209, 1216 (D. Del. 1991). Thus, as does OMB, the courts have construed the PRA as requiring OMB to give its approval (and assign a control number) only to the instrument through with an agency asks or requires respondents to provide information, e.g., a form. Since EPA and OMB have complied fully with the procedural requirements which Congress has imposed under the PRA, see supra at 10-11, reviewing courts are not free to "engraft[] their own notions of [additional] proper procedures upon agencies entrusted with substantive functions by Congress." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524-25 (1978). C.The Use of the Data and Information Which Had Been Collected Is As the agency charged under the PRA with "overseeing the use of information resources," 44 U.S.C. § 3504(a) (a), the OMB has also determined that the uses of information which have been collected are not restricted to those particularly described in the Information Collection Request:
Damus Decl., EPA Exhibit A, at ¶¶ 20. Again, considerable weight should be accorded OMB’s view, as explained by its General Counsel, of the PRA’s statutory scheme that the OMB is entrusted to administer. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 844. In addition to reflecting the plain language of the statute, OMB’s reading of the PRA also coincides with the PRA’s purpose to "minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other purposes resulting from the collection of information by or for the Federal Government" (emphasis added). See supra at 6-8. The paperwork burden of the respondents was completed when the information was collected by EPA for its database. The SFIP simply disseminates this collected information in another format. Similarly, OMB’s reading of the PRA also favors another purpose of the statute, to "ensure the greatest possible public benefit from and maximize the utility of information created, collected, maintained, used, shared and disseminated by or for the Federal government." 44 U.S.C. at § 3501 (2). See also 44 U.S.C. § 3501(4) (to "improve the quality and use of Federal information to strengthen decision-making accountability, and openness in Government and society"); 44 U.S.C. § 3504(b) (2) (charging OMB to "foster greater sharing, dissemination, and access to public information"); 44 U.S.C. § 3504(c) (4) (charging OMB to "maximize the practical utility of and public benefit from information collected by or for the Federal Government"); 44 U.S.C. § 3504(d) (2) (charging OMB, "[w]ith respect to information dissemination," to "promote public access to public information and fulfill the purposes of this chapter, including through the effective use of information technology"); 44 U.S.C. § 3506(b) (1) (c) (charging the agency to "improve the integrity, quality, and utility of information to all users within and outside the agency, including capabilities for ensuring dissemination of public information, [and] public access to government information"); 44 U.S.C. § 3506(d) ("With respect to information dissemination, each agency shall – (1) ensure that the public has timely and equitable access to the agency’s public information, including ensuring such access through – (A) encouraging a diversity of public and private sources for information based on government public information"). The proposed dissemination of the SFI data and information fulfills all of these purposes. D.Plaintiff’s Concern That the SFI Project Constitutes a Flawed As discussed in Parts B and C supra, as a matter of law an agency’s decision to disseminate information it has collected with OMB approval does not constitute a "modification to a collection of information" requiring further OMB approval under 44 U.S.C. § 3507(h) (3). There is also no merit in fact to plaintiff’s charge that EPA collected the data and information under the OMB control number for the TRI program, and then produced a "modification and transformation, resulting in the creation of ‘new data,’ [as to] constitute[] a ‘substantive or material modification to a collection of information’ within the meaning of section 3507(h) (3) of the Paperwork Act." See Complaint at ¶¶ 3, 31, 36, Memorandum of Points and Authorities at 2, 4, 7-9. There was no transmogrification of the TRI Project data and information to produce a "new" flawed and distorted modification of the data and information collected. The abstract of the TRI Information Collection Request disclosed that all of the information collected would be made available to the public; that "[t]he TRI has been used extensively by EPA and the public and private sectors. Program offices within EPA have used the TRI, with other sources of data, to establish priorities, evaluate potential exposure scenarios, and for enforcement activities"; and "[w]ith TRI, and the real gains in understanding it can produce, communities and governments know what listed toxic chemicals a subset of industrial facilities in their area release, transfer, or otherwise manage as waste" (emphasis added). 61 Fed. Reg. 59227, EPA Exhibit C, 61 Fed. Reg. 45966, EPA Exhibit D. The Information Collection Request for TRI provided a discussion of the many uses to which the TRI is pub by a variety of users, from individuals to State and local government. Sanders Decl., EPA Exhibit B, at ¶ 11. That discussion listed a number of specific "examples" of how the TRI data are used by EPA, other government agencies, communities, environmental groups and other organizations, and researchers, including the Environmental Indicators Model currently under development, which forms part of the SRI Project. Id. The SFI Project uses compliance and enforcement data required by federal regulations to produce facility and sector reports. Stanley Decl., EJA Exhibit F, at ¶ 7. Production and capacity data simply are taken from public data sources, and demographic data are taken from publicly available U.S. census files. Id. The release of these data under the SFI Project does not represent any new policy, data management shift, or new collection, but rather highlights the improvements EPA has made in making data systems more integrated. Id, The integration of TRI with the various other databases into the SFI Project was not manipulative, bizarre, or distorted, but solidly based on proper methodology. The SFI Project is in part a response to requests by a wide range of stakeholders to integrate risk-based factors into its decision-making process, to have information on the relative hazards of releases. Id. at ¶ 11. The SFI Project thus provides additional context to chemical release data. Id. Summing the product of pounds released and toxicity weighting for all reported chemicals is an alternative way to examine pollutant chemical releases. Id. Data relating to toxicity weighting of chemicals released are derived from the TRI Environmental Indicators Model developed by the EPA Office of Pollution Prevention and Toxics. The Environmental Indicators Model has undergone extensive review by EPA, the public, and the SAB, and was given the highest rating out of approximately 180 risk-modeling systems by an EPA workgroup. Sanders Decl., EPA Exhibit B, at pp 5-16. Thus, the process of the SFI Project in integrating and disseminating information from various EPA databases was an appropriate use of TRI data and information. II.PLAINTIFF IS NOT A REAL PARTY IN INTEREST, Within the rule that ever civil action in federal court must be prosecuted in the name of the real party in interest, Fed. R. Civ. P. 17(a), "the action must be brought by the person entitled under the governing substantive law to enforce the asserted right." Whelan v. Abell, 953 F.2d 663 (D.C. Cir.), cert. denied, 506 U.S. 906 (1992). See also United Health Carte Corp. v. American Trade Insurance Co., Ltd., 88 F.3d 563, 568-69 (8th Cir. 1996) ("this rule requires that the party who brings an action actually possess, under the substantive law, the right sought to be enforced"): Boeing Airplane Co. v. Perry, 322 F.2d 589, 591 (10th Cir. 1963), cert. denied, 375 U.S. 984 (1964) ("the ‘real party in interest’ is the one who, under applicable substantive law, has the legal right to bring the suit"). Plaintiff, by his own admission in an earlier preliminary filing with the EPA, is "a lobbyist who represents trade associations and corporations in several industries who will be harmed by the EPA’s and OMB’s [alleged] statutory violations[.]" See EPA Exhibit O; see also EPA Exhibits P, Q (excerpts). Suit is brought, however, n his own name, not in the name of any person who allegedly will be harmed by the alleged statutory violations by the EPA and OMB. Evan assuming that the PRA creates a private right of action to permit an aggrieved person to bring suit to enforce the PRA, but see Part I A supra, plaintiff as a lobbyist for affected companies is not the real party in interest to claim their injury in his own name. In addition, plaintiff as a lobbyist lacks standing to bring suit because he cannot show some actual injury would be suffered personal to himself by the defendants’ alleged violation of the PRA in disseminating the data and information of the SFI Project. Perhaps the most important component of the doctrine under Article III of the Constitution, which confines federal courts to adjudicating actual "cases" and "controversies," is the requirement that a litigant have "standing" to invoke the power of a federal court. Allen v. Wright, 468 U.S. 737, 750, red. denied, 468 U.S. 1250 (1984); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976). "Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The Supreme Court declared in Warth v. Seldin, 422 U.S. 490, 498-99 (1975):
It is an "irreducible constitutional minimum of standing" that "plaintiff must have suffered an ‘injury in fact’–an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) ‘actual or imminent, not "conjectural or "hypothetical."’" Lujan v. Defenders of Wildlife, 504 U.S. at 560. "By particularized, we mean that the injury must affect the plaintiff in a personal and individual way." Id. at 560 n.1. Since plaintiff has not brought suit in the name of an organization in which his clients are members, plaintiff also cannot assert standing on their behalf for an organization which is not a plaintiff. Cf. Warth v. Seldin, 490 U.S. at 511. Plaintiff claims irreparable harm to himself because he "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." Memorandum of Points and Authorities at 23. But even assuming, contrary to the statutory framework of the PRA, (a) that plaintiff has a private right of action to bring this suit, see I A supra, and (b) that there is any right to submit comments to prevent dissemination by the SRI Project of data and information after they have been collected with OMB approval under an OMB control number, see I B and C supra, – even then, any purported harm to plaintiff, in that he cannot file comments to prevent dissemination of the SFI data and information, is not a recognizable injury to confer standing. Plaintiff, like all members of the public and particular interested persons or groups and organizations, have been and are free to continue to submit comments and information relative to the data and information which have been collected under various OMB approvals with OMB control numbers. However, his claim of a right to file comments with the EPA as a member of the public is only "a generally available grievance about government" which does not confer standing in an Article III case or controversy as to entitle plaintiff to institute a suit in federal court. See Lujan v. Defenders of Wildlife, 504 U.S. at 573-74. III.PLAINTIFF CANNOT SHOW THAT THE INJUNCTION A.The Public and Other Parties Have a Strong Interest in the Dissemination of the SFI Data and InformationEPA proposes to dissemination the SFI data and information in response to a strong public need and interest:
Stanley Decl., EPA Exhibit F, at ¶ 4. EPA expects the release of data as presented in the SFI Project to result in the advancement of environmental protection. Id. at ¶ 5. Moreover, members of the public and environmental groups have informed EPA that they share EPA’s assessment of the value of the SFI Project and have urged EPA to release the SFI data and information. Id. EPA has been asked by a wide range of stakeholders to integrate risk-based factors generally into its decision-making process. Id. at ¶ 11. B.EPA Has Afforded Full Opportunity To Interested In addition to his claims that EPA was required to secure OMB approval for use of the TRI data in the SFI Project, Complaint at ¶¶ 30-34, and that the TRI control number issued by OMB was invalid for SFI purposes, id. at ¶¶35-38, plaintiff also alleges that EPA failed to allow public comment, id. at ¶¶ 30-34, and that EPA had "independent, separate, and distinct statutory duties with respect to the dissemination of existing data . . . ‘to regularly solicit and consider public input’ . . . and (b) to ‘provide adequate notice’" on disseminating the information, quoting 44 U.S.C. § 3506(d)(2) and (3), id. at ¶¶ 39-44. As a matter of law, as OMB’s General Counsel has declared, "[i]n contrast to those provisions in the PRA that address ‘collections of information’ (see especially 44 U.S.C. §§ 3506 (c), 3507, 3508, 3512, 3517(b)), the provisions in the PRA that address ‘information dissemination’ do not establish a formal notice-and-comment process, do not require OMB to review and approve ‘information dissemination,’ and do not provide any private remedies." Damus Decl., EPA Exhibit B, at ¶ 21. In addition, as a matter of fact, plaintiff’s claim that there has been injury to interested parties because EPA has allegedly not complied with 44 U.S.C. § 3506(d)(2) and (3) is misleading and disingenuous. As set forth, supra at 13-15, EPA has for considerably more than one year vigorously solicited the views and comments of the public, the states, and various interested parties on the validity and utility of the SFI data and information. EPA has also extensively sought input into the Environmental Indicators Model. Sanders Decl., EPA Exhibit B, at ¶ 16. In addition, plaintiff himself has been afforded and taken the opportunity to make his views known to the OMB by correspondence, the filing of a "Pe-Filing Review Draft," and meetings with OMB personnel. See id., and Damus Decl., EPA Exhibit B, at ¶ 11-17, and supporting attachments. Under these circumstances, plaintiff’s contention that EPA has not complied with 44 U.S.C. § 3506(d)(2) and (3) is without merit. IV.PLAINTIFF CANNOT DEMONSTRATE THAT FURTHER DELAY The proposal of the SFI Project to disseminate data and information which would synthesize existing environmental records into a system that would allow facility-level and industrial sector analysis is a matter of great public interest. The public interest purposes to be served by dissemination of the SFI Project data and information have been addressed by EPA’s Director of the Office of Compliance, Stanley Decl., EPA Exhibit F, at ¶ 4, see supra at 35. Diverse important public benefits are anticipated from their dissemination:
Stanley Decl., EPA Exhibit F at ¶ 6. It would thus be of substantial public benefit to disseminate the data and information integrated into the SFI Project to provide data regarding the compliance history and chemical releases for each of the facilities of the five industrial sectors. CONCLUSION For the foregoing reasons, plaintiff’s motion for a preliminary injunction should be denied. Respectfully submitted, FRANK W. HUNGER WILMA A. LEWIS DARIA J. ZANE, DC Bar #412783 ___________________________________ OF COUNSEL:SANDRA M. SCHRAIBMAN, DC Bar #188599 Assistant Director Tanya A. HillHERBERT E. FORREST, DC Bar #4432 U.S. EnvironmentalU.S. Department of Justice Attorneys for Defendants February 13, 1998 1 The Court subsequently denied plaintiff's renewed application for a preliminary injunction and granted defendant's motion to dismiss on plaintiff's lack of standing to bring suit, finding it unnecessary to determine whether the Act creates a private right of action. Memorandum, February 25, 1994. |