Flue-Cured Tobacco Co-Op. v. U.S.E.P.A.

4 F.Supp.2d 435

FLUE-CURED TOBACCO COOPERATIVE STABILIZATION CORPORATION, The Council for Burley Tobacco, Inc., Universal Leaf Tobacco Company, Incorporated, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, and Gallins Vending Company, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Carol Browner, Administrator, Environmental Protection Agency, Defendants.

No. 6:93CV00370.

United States District Court, M.D. North Carolina, Winston-Salem Division.

July 17, 1998.

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James D. Blount, Jr., James K. Dorsett, Jr., Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, Raleigh, NC, Lawrence Pierce Egerton, Egerton & Brenner, Greensboro, NC, Keith W. Vaughan, Dewey W. Wells, Jeffrey Lee Furr, Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, W. Thomas White, Allman, Spry, Leggett & Crumpler, PA, for Plaintiffs.

Benjamin H. White, Jr., John W. Stone, Jr., Office of U.S. Atty., Greensboro, NC, Myles E. Flint, U.S. Dept. of Justice Environment & Natural Resources Div., Washington, DC, Laura H. Neuwirth, U.S. Environmental Protection Agency, Office of General Counsel, Washington, DC, Gerald H. Yamada, U.S. Dept. of Environmental Protection Agency, Acting General Counsel, Washington, DC, Gregory B. Foote, U.S. Environmental Protection Agency, Asst. General Counsel, Washington, DC, Alice L. Mattice, U.S. Dept. of Justice, Environment & Nat. Resources Div., Washington, DC, for Defendants.

George M. Cleland, Winston-Salem, NC, Cornish F. Hitchcock, Alan B. Morrison, Public Citizen Litigation Group, Washington, DC, Matthew L. Myers, National Center for Tobacco-Free Kids, Washington, DC, Diana Evans Ricketts, Bode, Call & Stroupe, Raleigh, NC, Daniel J. Popeo, Richard A. Samp, Washington Legal Foundation, Washington, DC, for Movants.

MEMORANDUM OPINION

OSTEEN, District Judge.

This case is before the court on the parties' cross motions for partial summary judgment on Counts I-III of the Complaint. These counts raise Administrative Procedure Act (APA) challenges to EPA's report, Respiratory Health Effects of Passive Smoking Lung Cancer and Other Disorders, EPA/600/6-90/006F, December 1992 (ETS Risk Assessment). EPA claims its authority to conduct the ETS Risk Assessment derives from the Radon Gas and Indoor Air Quality Research Act of 1986, Pub.L. No. 99-499, 100 Stat. 1758-60 (1986) (Radon Research Act) (codified at 42 U.S.C. § 7401 note (1994)). In the ETS Risk Assessment, EPA evaluated the respiratory health effects of breathing secondhand smoke (environmental tobacco smoke or ETS) and classified ETS as a Group A carcinogen, a designation meaning there is sufficient evidence to conclude ETS causes cancer in humans. Disputing the Assessment, Plaintiffs argue: EPA exceeded its authority under and violated the restrictions within the Radon Research Act; EPA did not comply with the Radon Research Act's procedural requirements; EPA violated administrative law procedure by making a conclusion regarding ETS before it concluded its risk assessment, and EPA's ETS Risk Assessment was not the result of reasoned decision making.¹ EPA denies the same and argues the administrative record (record) demonstrates reasoned decision making. Plaintiffs have also filed a motion to supplement the pleadings. For the reasons stated herein, the court will enter an order granting Plaintiffs' motions.

I. THE RADON RESEARCH ACT

The Radon Research Act was enacted by Congress as Title IV of the Superfund Amendments and Reauthorization Act of 1986 (SARA) and codified with the Clean Air Act at 42 U.S.C. § 7401 note. The Act was based on Congress' finding: "exposure to naturally occurring radon and indoor air pollutants poses public health risk[s]," id. § 402(2); "Federal radon and indoor air pollutant research programs are fragmented and underfunded," id. § 402(3); and an "information base concerning exposure to radon and indoor air pollutants should be developed...." Id. § 402(4). The act provides

(a) Design of Program. — [The EPA] shall establish a research program with respect to radon gas and indoor air quality. Such program shall be designed to -

(1) gather data and information on all aspects of indoor air quality in order to contribute to the understanding of health problems associated with the existence of air pollutants in the indoor environment;

(2) coordinate Federal, State, local, and private research and development efforts relating to the improvement of indoor air quality; and

(3) assess appropriate Federal Government actions to mitigate the environmental and health risks associated with indoor air quality problems.

(b) Program requirements. — The research program required under this section shall include -

(1) research and development concerning the identification, characterization, and monitoring of the sources and levels of indoor air pollution....

(2) research relating to the effects of indoor air pollution and radon on human health;

....

(6) the dissemination of information to assure the public availability of the findings of the activities under this section.

Id. § 403(a) & (b). Congress also required a narrow construction of the authority delegated under the Radon Research Act. Nothing in the act "shall be construed to authorize the [EPA] to carry out any regulatory program or any activity other than research, development, and related reporting, information dissemination, and coordination activities specified in [the Radon Research Act]." Id. § 404.

The Act requires EPA to establish two advisory groups to assist EPA in carrying out its statutory obligations under the Radon Research Act. One of the advisory groups is to be a committee comprised of representatives of federal agencies concerned with various aspects of indoor air quality, and the other group is to be "an advisory group comprised of individuals representing the States, the scientific community, industry, and public interest organizations...." Id. § 403(c). The Act requires EPA to submit its research plan to the EPA Science Advisory Board which, in turn, would submit comments to Congress. Id. § 403(d).

II. STANDARD OF REVIEW²

Administrative agencies have no power to act beyond authority conferred by Congress. See, e.g., Louisiana Public Serv Comm'n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 1901, 90 L.Ed.2d 369 (1986). Title 5 U.S.C. § 706(2)(C) requires the court to "hold unlawful and set aside agency action ... found to be ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." The initial inquiry for judicial review of agency action is "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). "The task of resolving the dispute over the meaning of [the statute] begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (citations omitted). "The judiciary ... is the final authority on issues of statutory construction and will reject administrative interpretations which are contrary to the clear congressional intent." Adams v. Dole, 927 F.2d 771, 774 (4th Cir.1991).

"[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. Courts do not always abide by this Chevron deference. Although the circuits appear divided, the majority of post-Chevron cases hold no deference is accorded to an agency's view of a statute where the statute does not confer rule making authority on the agency. Compare Merck & Co. v. Kessler, 80 F.3d 1543, 1550 (Fed.Cir.1996) (Chevron does not apply to interpretive rules); Atchison, Topeka & Santa Fe Ry. v. Pena, 44 F.3d 437, 441-42 (7th Cir.1994) (en banc) (same), aff'd on other grounds sub nom. Brotherhood of Locomotive Eng'rs v. Atchison, Topeka & Santa Fe Ry., 516 U.S. 152, 116 S.Ct. 595, 133 L.Ed.2d 535 (1996) with Trans Union Corp. v. FTC, 81 F.3d 228, 230-31 (D.C.Cir.1996) (applying Chevron to interpretive rule); Elizabeth Blackwell Health Ctr. for Women v. Knoll, 61 F.3d 170, 182 (3d Cir.1995) (same), cert. denied, 516 U.S. 1093, 116 S.Ct. 816, 133 L.Ed.2d 760 (1996). See Ronald M. Levin, Scope of Review Legislation: The Lessons of 1995, 31 Wake Forest L.Rev. 647, 662-64 (1996). Another factor in determining an agency's discretion in statutory interpretation is the specificity of interpretation. Courts determine the general meaning of legislation, whereas agencies are often better equipped to determine interstitial meanings. John H. Reese, Administrative Law Principles and Practice 709-713 (1995).

III. EPA's AUTHORITY UNDER THE RADON RESEARCH ACT

The parties assert the plain language of the statute determines whether EPA had authority to assess the risks of and classify ETS. The court agrees. However, the parties, reading the plain language, come to opposite conclusions. Plaintiffs argue EPA exceeded its statutory grant of authority under the Radon Research Act by conducting a risk assessment, making a carcinogen classification, and by engaging in de facto regulation. Plaintiffs also argue the Toxic Substance Control Act prohibited EPA's risk assessment of ETS.

A. The Radon Research Act Authorizes EPA's Risk Assessment and Classification of Environmental Tobacco Smoke.

Plaintiffs concede EPA was authorized to conduct research on ETS and indoor air quality but argue EPA's ETS carcinogen risk assessment and carcinogen classification are regulatory activities, not research...