IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Case No. 1:98CV00169

JIM J. TOZZI, et al.,

Plaintiff,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY; et al.,

Defendants.

MEMORANDUM OPINION

On March 12, 1998, the Court issued an Order denying Plaintiff’s Motion for a Preliminary Injunction. This Memorandum Opinion sets forth the reasons for that ruling.

Background

The Paperwork Reduction Act (44 U.S.C. § 3501, et seq) ("PRA") sets standards for the collection of information from the public by federal agencies. The PRA 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 (2^nd Cir. 1986), cert. denied, 479 U.S. 1043 (1987). "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 formation; 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 (10^th Cir. 1987). 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, submit the request 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." If OMB 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).

The Toxic Release Inventory ("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 the EPA and their respective states annually. (See Decl. Of Dr. William H. Sanders III, Defts.’ Proposed Findings of Fact and Concl. Of Law, Ex. B.) EPA compiles these forms into the TRI, a nationwide toxic chemical release inventory on a computerized database for general distribution, as required by Section 313(j). Id. The purpose of the TRI 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, to conduct research, and to develop regulations, guidelines, and standards. Id. The reporting form requires facility owners to provide information on the facility’s location and other characteristics, and detailed 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. On April 30, 1997, OMB approved the renewal of the TRI Information Collection Request. (Id., Notice of Management and Budget Action, at Ex. E.)

The TRI, together 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, is the foundation of the Sector Facility Indexing ("SFI") Project. (Id., Decl. Of Elaine Stanley, at Ex. F.) As currently planned, the SFI Project is a pilot data integration and dissemination effort to synthesize existing environmental records from several publicly available data sources into a system that more easily allows facility-level and industrial sector analysis at a single location. Id.

The project arranges data from many existing EPA data systems and displays these records in a more user-friendly manner so that data users, including EPA, members of the public, industries, and trade associations, can obtain information in one place . . .Production and capacity data simply are taken from public data sources, and demographic data are taken from publicly available U.S. Census data files. The release of these data under the SFIP 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. Taken in this context, EPA views the SFIP as a significant advancement in public access to environmental data because it provides a single location for search for multiple database records.

Id. The SFI Project enhances the utility and the presentation of TRI data by including information regarding compliance with requirements of other media programs, but the SFI Project does not change the self-reported numbers drawn from the independent databases.¹ Id. In developing the SFI Project, EPA 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. Id. During this process, discussions were held between plaintiff Tozzi and the EPA. Id.

Standard

To be entitled to a preliminary injunction under F.R.C.P. 65(a), a party must show: (1) that it has as substantial likelihood of success on the merits; (2) that irreparable injury will result in the absence of a preliminary injunction; (3) that no other parties will be substantially harmed if the injunction is entered; and (4) that the public interest favors the entry of the injunction. Washington Metropolitan Area Transit Comm’n v. Holiday Tours, 559 F.2d 841, 843 (D.C. Cir. 1977).

Discussion

Plaintiffs have failed to meet the requirements for the issuance of a preliminary injunction. In particular, they have not shown either that they have a substantial likelihood of success on the merits or that irreparable injury will result in the absence of a preliminary injunction. Id. For these reasons alone, the Court can deny Plaintiffs’ motion.²

Plaintiffs argue that the EPA cannot use the TRI data for the SFI Project without first obtaining a separate OMB approval for this new use of the data. Plaintiffs contend that certain issues pertaining to the SFI Project were never reviewed or approved by OMB, or commented on by the public including the accuracy of the manner in which EPA intends to display enforcement-related data on the Internet and the validity of the manner in which EPA intends to display several other information elements of the SFI project. They argue that the EPA should review the new data uses based on a 60-day public comment period, as required by 44 U.S.C. § 3506(c); that the OMB should review the new data uses based on a 30-day public comment period, as required by 44 U.S.C. § 3507(a), (b); and that the OMB should make a determination of the new use’s "practical utility" as required by 44 U.S.C. § 3508. Plaintiffs maintain that they will prevail on the merits because using the TRI data for the SFI Project constitutes a "substantive or material modification," which requires approval from OMB. To prevail on this theory, they must show two things: first, that this is a "substantive or material modification" of the use of the EPA data; and second, that an agency cannot lawfully conduct significant new uses of data until after OMB has approved such new uses. The Court finds that Plaintiffs have failed to prove both.

First, in republishing the TRI data as part of the SFI Project, the EPA has not made a substantive on material modification to the use of the data. The exact data that was collected for the TRI project is merely republished in another medium to facilitate dissemination of the information in a manner that is more "user-friendly" to the public. The information itself is not modified in any way. The way in which it is collected is not modified in any way. Therefore, the Court finds that Plaintiffs have failed to make their first required showing: that the EPA’s actions here constitute a material modification to the collection of information, as defined by the PRA.

Plaintiffs have also failed to show that the OMB must separately approve all new uses of data that agencies have previously collected. Section 3507(h)(3) of the PRA 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.

While the statute clearly discusses modifications in the "collection" of data, Plaintiffs contend that it also proscribes modifications in the "use" of data without OMB approval. The regulations implementing the PRA define "collection of information" as "the act of collecting or disclosing information." See C.F.R. § 1320.3 (c) (emphasis added). Thus, plaintiffs argue, the EPA may not substantively or materially modify its "act of disclosing" without OMB approval. OMB’s draft guidance manual also addresses "Modifications to Collections of Information Previously Approved by OMB." It states:

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 (emphasis added). While Plaintiffs focus on the "significantly changes the uses" portion of this quote, the revision discussed is that of revising the collection of information which then causes the use to change. The OMB itself has rejected Plaintiff’s interpretation of its regulations, and this Court must accord considerable weight to OMB’s view of the statutory scheme that the OMB is entrusted to administer. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, reh. denied, 468 U.S. 1227 (1984).

Plaintiff also argues . . . that OMB’s approval of a collection of information is limited to particular uses of the collected information, and that an agency must therefore obtain OMB approval before it uses collected information in any additional ("new") ways. Again, OMB does not agree with Plaintiff’s reading of the statute. As I have noted, the PRA provides that OMB, "before approving a proposed collection of information, . . . 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." ³ Thus, an element of OMB’s analysis under the PRA is an assessment of the expected usefulness of the information to be collected . . . . However, while OMB’s analysis includes an assessment of how the information is expected to be used, the object of OMB’s review and approval under the PRA remains the "collection of information" itself. In other words, it is the agency’s collection of information, not the agency’s subsequent use of the collected information, that requires OMB’s approval and that is assigned (and must display) an OMB control number. Accordingly, contrary to Plaintiff’s argument, the PRA does not require an agency to obtain OMB approval in order for the agency to use information that it collects in addition ("new") ways.

(Decl. Of Robert G. Damus, Defts.’ Proposed Findings of Fact and Concl. Of Law, Ex. A.) Furthermore, Section 3502 defines the term "collection of information" to mean "the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public of facts or opinions by or for an agency. The Court finds that Plaintiffs have failed to prove that OMB must approve all modifications to the use of the previously collected data.

The Court also finds that this kind of Government action does not fall under the category of harms that the PRA was enacted to address. As discussed above, the PRA was enacted "to reduce the flow of paperwork that individuals, small businesses and local governments were required to complete for the federal government." Kuzma 798 F.2d at 31. "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, 658 F. Supp. At 912 (D. Utah 1985). In sum, the PRA was enacted mainly to reduce for respondents the burden of government reporting; government efficiencies would result. It follows that only those modifications in the collection of information that require respondents to take action (e.g., to fill out a form) require OMB approval. This is not such a modification.

Finally, Plaintiff’s contend that the new use of the TRI data will impose new burdens on respondents because the companies that supply the data will have to police the accuracy of the data; also, the (alleged) inaccuracy of the data will result in public relations costs, may serve as the basis for unwarranted citizen suits, and may result in difficulties for facilities that are for sale (in terms of obtaining financing and insurance). These, however, are general complaints that apply to any public dissemination of the data, which the OMB has already approved. To the extent that Plaintiffs are injured by these factors, such injury stems from the TRI Project, not the new use of the data for the SFI Project.

Conclusion

For the reasons stated above, the Court finds that Plaintiffs have failed to demonstrate that they have met the requirements for a preliminary injunction. At the very least, they have failed to show that they have a substantial likelihood of success on the merits or that irreparable injury will result in the absence of a preliminary injunction. An Order denying Plaintiffs’ Motion for a Preliminary Injunction was issued by the Court on March 12, 1998.

April 21st , 1998

Thomas F. Hogan
United States District Judge

¹ At the time Plaintiffs' Motion for a Preliminary Injunction was filed, the EPA planned to apply a "Toxicity Weighting Factor" to the data. Plaintiffs objected to this modification of the data. Since that filing, the EPA has stated that it will not use facility-specific toxicity weightings independently from risk-based methodologies that are currently under development. (See Notice of New Information, filed March 10, 1998.) The EPA will give plaintiffs ten calendar days' notice prior to releasing any version of the SFI that includes toxicity weighting factors. (See Defs.' Notice of Filing, dated march 12, 1998.)

² Defendants also raise three jurisdictional issues: (1) that the United States has not waived its sovereign immunity to permit Plaintiffs to bring this suit; (2) that the PRA and the Administrative Procedure Act do not create a private right of action to permit plaintiffs to bring this suit; and (3) that Plaintiffs lack standing under Article III of the Constitution to bring this suit. The Court does not need to address these jurisdictional issues at this time, as it finds that Plaintiffs do not meet the requirements for a preliminary injunction on other grounds. At this point in the litigation, it is Plaintiffs who must prove to the Court that they have a substantial likelihood of prevailing on the merits. Washington Metropolitan Area Transit Comm'n v. Holiday Tours, 559 F.2d at 843.

³ Plaintiffs point out that when OMB approves a proposal for the collection of information, one factor it looks at is whether that information has "practical utility." This assessment of practical utility, they argue, necessarily must be based on how the information will be used by the agency. Plaintiffs argue that if an 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". Plaintiffs argue that if an agency is able to change the data's use after it has already been approved, it would be able to subvert the PRA by seeking OMB approvals of proposed data collections for noncontroversial purposes and then use the data, once collected, for other, more questionable purposed never disclosed to OMB or the affected public.