The material originally appeared in Inside EPA
November 30, 2001. It is reprinted here with
permission of the publisher, Inside Washington Publishers.
Copyright 2001. All rights reserved.

APPEALS COURT RULING MAY AID CHALLENGE TO EPA DIOXIN REVIEW

Date: November 30, 2001 -

A federal appeals court decision to uphold a federal government listing of dioxin as a human carcinogen is prompting lawyers for the plaintiff to argue that the ruling provides them increased legal footing to oppose other guidance and non-regulatory dioxin actions by federal agencies, including EPA, sources say.

The U.S. Court of Appeals for the District of Columbia Circuit on Nov. 23 said a decision by the Department of Health and Human Services (HHS) to upgrade the classification of dioxin from a "reasonably anticipated" to a "known" human carcinogen was not arbitrary and capricious.

The ruling, Tozzi v. U.S. Department of Health and Human Services, allows the new classification to remain in the latest listing of chemicals covered under the National Toxicology Program, an HHS program that publishes a biennial Report on Carcinogens, which lists chemicals and other compounds based on their cancer-causing potential. The ruling is available on our web site, InsideEPA.com.

However, plaintiff lawyers say that because the case established their standing to sue HHS over the listing and the ability of a federal court to review a non-binding agency document in the form of the listing, the case could set an important precedent for future lawsuits against EPA's ongoing dioxin risk reassessment. While the EPA reassessment is a non-regulatory effort, it could serve as the basis for future regulatory decisions regarding controls on dioxin risks.

According to one attorney, the fact that the court reviewed and issued a ruling on the listing is a "significant benefit to companies wishing to challenge federal government information dissemination."

The lawyer argues that the ruling, coupled with the recently enacted federal Data Quality Act, which sets standards for the federal information dissemination practices, establishes a "one-two punch" for companies seeking to challenge "pejorative statements" by the federal government against their practices, products or byproducts.

The court said the plaintiff had the legal standing to challenge the listing because HHS' change to the dioxin classification could have an economic impact on a restaurant owned by the plaintiff. The litigation was filed by Jim Tozzi, a Washington, DC restaurant owner and the president of Multinational Business Services Inc., which represents corporations in regulatory matters.

Dioxin is a byproduct of charbroiling beef, and the plaintiff argued that the HHS listing would scare away business.

But the court ruling could help in pursuing other legal actions against EPA. "This will help me get into court and stay in court," the plaintiff says, referring to a pending case against the agency's dioxin reassessment. That case, Tozzi v. EPA, has been put on hold until the reassessment is released and undergoes an interagency review.