Garcia v. McCarthy
| Decision Date | 16 January 2014 |
| Docket Number | Case No. 13-cv-03939-WHO |
| Court | U.S. District Court — Northern District of California |
| Parties | MARIA GARCIA, et al., Plaintiffs, v. GINA MCCARTHY, in her official capacity as Administrator of the U.S. Environmental Protection Agency, et al., Defendants. |
Re: Dkt. No. 20
Plaintiffs1 Maria Garcia, David Garcia, and Angelica Guzman bring this action against defendants Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency ("EPA"), Jared Blumenfeld, in his official capacity as Regional Administrator of Region IX of EPA, and EPA. The plaintiffs allege violations of both the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., and of their Due Process rights under the Fifth Amendment of the United States Constitution based on EPA's allegedly wrongful investigation, negotiation, and settlement of an administrative complaint.2 Based on the parties' briefs and argument of counsel, and for the reasons below, the defendants' motion to dismiss is GRANTED.
The First Amended Complaint ("FAC") alleges the following:
On June 30, 1999, parents of Latino schoolchildren attending public schools, including plaintiff Maria Garcia, filed an administrative complaint with EPA on behalf of themselves and their children. FAC ¶ 41. The complaint in Angelica C. v. California Department of Pesticide Regulation, EPA File No. 16R-99-R9 ("Angelita C."), alleged that the California Department of Pesticide Regulation ("CDPR") violated Title VI of the Civil Rights Act of 1964 ("Title VI") by subjecting Latino schoolchildren in California to harmful and discriminatory exposures to toxic pesticides and fumigants, in particular, methyl bromide. FAC ¶ 41. "To demonstrate this disproportionate impact, this complaint focus[ed] on methyl bromide, due to its particularly deadly characteristics, as an example of overall use of and exposure to highly toxic pesticides in the state." FAC ¶ 41 (quoting Angelita C. at 2). Exposure to high concentrations of methyl bromide can result in complete central nervous and respiratory system failure and cause severe harm to lungs, eyes, and skin. FAC ¶ 42. Chronic, low-level exposure is associated with peripheral neuropathies, impaired gait, cognitive and behavioral changes, and liver and kidney dysfunction. FAC ¶ 42. Acute effects from exposure include headaches, nausea, vomiting, seizures, psychosis, and death. FAC ¶ 42. Children are especially vulnerable to methyl bromide's effects. FAC ¶ 42.
On December 11, 2001, EPA accepted the complaint for investigation, but did not make a preliminary finding within 180 days as required by 40 C.F.R. § 7.115(c). FAC ¶¶ 3-4. On September 10, 2002, EPA staff met exclusively with CDPR senior management, during which time CDPR "indicated its intent to continue authorizing the use of methyl bromide" and argued that its processes for issuing permits were adequate to address risks posed by the chemical. FAC ¶ 44. At some point, EPA conducted at least one additional phone call with CDPR senior management, during which time "CDPR reiterated its position that it was appropriately mitigating the risks posed by methyl bromide and in compliance with governing laws." FAC ¶ 45.
Nearly 12 years after the filing of the complaint, on April 22, 2011, EPA issued a preliminary finding against CDPR of racial discrimination, concluding that Latino schoolchildren in California suffered excessive exposure to and disparate effects from methyl bromide between1995 through 2001. EPA concluded that there was "sufficient evidence to make a preliminary finding of a prima facie violation of Title VI as a result of the disparate adverse impact upon Latino schoolchildren in California from the application of methyl bromide between 1995 and 2001"; it did not analyze any other chemicals or any other time period after 2001. FAC ¶ 47 (quoting Preliminary Finding 3). Comparing data from over 8,000 "majority non-Latino" California public schools against the schools listed in the complaint, EPA found that Latino schoolchildren were disparately exposed to both short-term acute (two-to-30-day periods) and long-term chronic (180-day period to lifetime) levels of methyl bromide above "EPA's health thresholds of concern." FAC ¶ 49. Excessive levels were found at Rio Mesa High School, Rio del Valle Middle School, and Rio Lindo Elementary School. FAC ¶¶ 24, 27.
This was the first preliminary finding ever issued by EPA finding discrimination based on race, color, or national origin. FAC ¶ 6. However, "EPA kept the preliminary finding secret" and did not inform the complainants or the general public, nor were the complainants allowed to discuss the investigation or view the investigative documents. FAC ¶¶ 5, 52. EPA requested that CDPR maintain complete secrecy, stating, "OCR [(EPA's Office of Civil Rights)] would like to conduct these discussions confidentially and hopes that CDPR will also view them in the same way." FAC ¶ 52.
Between August 22, 2011, and August 24, 2011, EPA and CDPR engaged in private settlement discussions and did not invite the complainants to participate or to examine the underlying documents for EPA's decision. FAC ¶¶ 52-53. On August 24, 2011, EPA entered into an informal compliance agreement with CDPR pursuant to 40 C.F.R. § 7.115, but, again, the complainants were not part of the process leading to the agreement. FAC ¶ 7. "As required by its Title VI implementing regulations, EPA provided recommendations for CDPR to achieve voluntary compliance with Title VI." FAC ¶ 50. Among other requirements, EPA recommended more ongoing air monitoring through 2013; a data-call-in process with pesticide registrants to collect data from high-use areas; promulgating methods to ensure that monitoring efforts are effective against excessive long-term exposure; use of high-barrier virtually impermeable films and township caps on methyl bromide levels; and holding three outreach events per year with theLatino community. FAC ¶¶ 50-51, 56.
The plaintiffs identify numerous deficiencies with the settlement agreement, asserting that it provides no relief to those exposed to the pesticides and leaves them without a remedy. FAC ¶¶ 55, 57. FAC ¶ 55. The agreement contains no duty for CDPR to achieve the exposure reduction goals EPA recommended in its preliminary finding. FAC ¶ 58. "Rather, the settlement agreement allows CDPR to continue to discriminate against Latino children in California by allowing the hazardous application of methyl bromide and other dangerous pesticides and fumigants near their schools." FAC ¶ 58.
EPA informed Brent Newell, the complainants' counsel, of the preliminary finding and agreement, and dismissed the complaint on the same day that the agreement was executed. FAC ¶ 9. Newell did not know of the preliminary finding, agreement, or dismissal before then. FAC ¶ 59. Ironically, Newell was attending an EPA-sponsored conference on Title VI and environmental justice, where EPA invited him to speak, when he was informed of the settlement. FAC ¶ 59. At the conference, Newell asked then-EPA Administrator Lisa P. Jackson to rescind the agreement, reopen negotiations with the complainants' participation, and remedy the discrimination identified in the preliminary finding. FAC ¶ 60. Shortly thereafter, Newell and other individuals met with Jackson to discuss his request. FAC ¶ 61.
On January 9, 2012, Newell met with California Environmental Protection Agency ("California EPA") Secretary Matthew Rodriquez to discuss Newell's complaints. FAC ¶ 62. "Rodriquez indicated that California EPA was willing to meet with EPA and [Newell] to discuss whether to reopen the settlement agreement, as allowed by paragraph 23 of the agreement." FAC ¶ 62. On January 18, 2012, Newell and other environmental justice advocates met with Jackson to discuss reopening the agreement and including the complainants in any subsequent negotiations about Angelita C., and mentioned that Rodriquez was willing to discuss doing so; "Jacksonunequivocally committed to contacting Secretary Rodriquez herself to discuss the matter." FAC ¶ 61.
In a February 24, 2012, letter from OCR Director DeLeon to Newell, DeLeon informed Newell that EPA contacted Rodriquez, but Rodriquez said that Newell was not authorized to represent that Rodriquez was willing to consider reopening the settlement." FAC ¶ 64. "Under these circumstances," DeLeon wrote, "EPA does not intend to reopen the settlement agreement." FAC ¶ 64. Newell responded in a March 9, 2012, letter, which stated that "he believed miscommunication between EPA and Rodriquez caused EPA to react" the way it did, and that after speaking with Rodriquez, Rodriquez would send a separate letter to clarify EPA's misunderstanding of his position. FAC ¶ 65. In a March 9, 2012, letter from Rodriquez to DeLeon, Rodriquez stated that California EPA "would be willing to participate in discussions of potential modifications to the settlement, especially if US EPA was interested in such discussions." FAC ¶ 66. In addition, Rodriquez also stated that FAC ¶ 66.
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