Industrial Safety Equipment Ass'n, Inc. v. E.P.A., 87-5096

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WALD, Chief Judge, SENTELLE; WALD
Citation267 U.S.App. D.C. 112,837 F.2d 1115
Parties, 56 USLW 2416, 18 Envtl. L. Rep. 20,598, 13 O.S.H. Cas.(BNA) 1585, 1988 O.S.H.D. (CCH) P 28,123 INDUSTRIAL SAFETY EQUIPMENT ASSOCIATION, INC., et al., Appellants v. ENVIRONMENTAL PROTECTION AGENCY, et al.
Docket NumberNo. 87-5096,87-5096
Decision Date19 January 1988

Page 1115

837 F.2d 1115
267 U.S.App.D.C. 112, 56 USLW 2416,
18 Envtl. L. Rep. 20,598,
13 O.S.H. Cas.(BNA) 1585,
1988 O.S.H.D. (CCH) P 28,123
INDUSTRIAL SAFETY EQUIPMENT ASSOCIATION, INC., et al., Appellants
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.
No. 87-5096.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 24, 1987.
Decided Jan. 19, 1988.

Paul A. Koches, with whom William E. Wickens and Frank J. Pergolizzi, Washington, D.C., were on the brief, for appellants.

M. Alice Thurston, Dept. of Justice, with whom Roger J. Marzulla, Acting Asst. Atty. General, Dept. of Justice, Alan Carpien, Office of General Counsel, E.P.A., Michael A. McCord and Martin W. Matzen, Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before WALD, Chief Judge, SENTELLE, Circuit Judge, and GIBSON, * Senior Circuit Judge.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

This controversy concerns the adequacy of various types of asbestos-protection respirators. The National Institute for Occupational Safety and Health (NIOSH) and the Environmental Protection Agency (EPA) published in April, 1986, a report recommending that "supplied-air" respirators be used for maximum protection against asbestos exposure. 1 Both agencies are authorized by statute to disseminate health information to the public. See Occupational Safety and Health Act, 29 U.S.C. Secs. 669(a), (d), 671; Public Health Service Act, 42 U.S.C. Secs. 241(a), 4321. 2 Occupational Safety and Health Administration (OSHA) and EPA regulations, however, permit industry members to use numerous devices not recommended in the Guide. 3 Plaintiffs-appellants Industrial Safety Equipment Association (ISEA), et al., brought a district court action on June 10, 1986 seeking declaratory and injunctive relief against publication of the Guide. They argued that the Guide violated the Administrative Procedure Act (APA) because it "constitutes or has the effect of new agency regulations," decertifying eleven lawful respirator types, yet it was not promulgated according to proper rulemaking processes. Secondly, they argued that the publication works an unconstitutional deprivation of their property interests in their respirator certifications.

On February 27, 1987, the district court dismissed with prejudice plaintiffs' complaint, ruling that because the Guide was a nonbinding, informational publication, it did not amount to reviewable agency action. 656 F.Supp. 852. This decision is before us on appeal. We hold with the district court that the NIOSH/EPA Guide's respirator recommendations do not constitute agency action that will sustain either an APA or due process claim.

I. BACKGROUND

OSHA and EPA regulations protect employees against the serious health hazard posed by asbestos in the workplace. See 29 C.F.R. Sec. 1910.1001; 40 C.F.R.

Page 1117

Sec. 763.21(d). Both sets of regulations require that asbestos-protection respirators be selected from among those certified by the NIOSH and the Mine Safety and Health Administration (MSHA). See 30 C.F.R. Part 11. Specifically, there are thirteen federally approved respirators, ranging from "air purifying respirators" (filter devices) recommended for use when asbestos concentrations are relatively low, to "powered air purifying respirators," and finally to "supplied-air respirators" (self-contained breathing apparatuses), recommended as concentrations become progressively higher. 4

In April, 1986, the EPA and the NIOSH published the Guide with the stated purpose of providing "a single source for the best and most current information on worker respiratory protection against asbestos." J.A. at 146. Both parties to this dispute agree that the Guide is also intended "to provide employers with guidelines for developing effective respiratory protection programs." J.A. at 64 (quoting Guide at 1); see also Brief of Appellees at 6. The Guide summarizes and builds on existing federal regulations that specify both the PELs and the authorized methods of complying with these limits. The largest section of the Guide describes a model program for asbestos abatement operations. The preface explains that the Guide's recommendations not only satisfy existing regulations but also incorporate the most current scientific information about how best to minimize worker exposure. Respirator use, of course, is a major method of compliance with the PELs. The Guide carefully distinguishes between the thirteen respirators all of which meet federal standards and the two types that the Guide recommends because they provide the maximum amount of worker protection. The most controversial passage in the Guide reads:

The respirator types numbered 3 through 13 above are not recommended by NIOSH or EPA for use against asbestos. However, various existing regulations allow their use. In fact, the existing respirator certification regulations (30 C.F.R. Part 11) requires NIOSH to certify ... [these eleven]. However, as a matter of public health policy, NIOSH and EPA do not recommend their use in asbestos environments.

J.A. at 156 (excerpt is footnote in Guide, prefaced with exclamation "Important") (boldface and capitalization omitted).

Appellants claim that this disapproval of eleven lawful devices amounts to agency rulemaking, subject to review under the APA, because the action effectively "decertifies" the existing respirators marketed or used by appellants. The EPA counters that because the Guide formally binds no one, it cannot be viewed as rulemaking. Although we do not adopt the EPA's broad assertion that only legally binding publications can ever be reviewable, neither do we accept ISEA's characterization of the Guide as a de facto decertification of the respirators. We conclude that the EPA and NIOSH's publication of the Guide does not amount to agency action subject to judicial review.

II. ANALYSIS

A. The Administrative Procedure Act

The APA authorizes review of "[a]gency action made reviewable by statute and final agency action " for which there is no other adequate remedy in a court. 5 U.S.C. Sec. 704 (emphasis added). The APA also specifies that standing for judicial review requires that a party be "adversely affected or aggrieved by agency action." Id. Sec. 702 (emphasis added). In turn, the Act defines agency action as "the whole or a part of an agency rule, order, license, sanction, relief, of the equivalent or denial thereof, or failure to act." .... Id. Sec. 551(13). These categories are imprecise, and courts have made the threshold determination of reviewable agency action on a case-by-case basis.

Almost forty years ago, this court declared that publication by a government

Page 1118

agency of material adverse to a party is not agency action under the APA, and hence is immune from judicial review. 5 See Hearst Radio v. FCC, 167 F.2d 225 (D.C.Cir.1948); see also Kukatush Mining Corp. v. SEC, 309 F.2d 647, 652 (D.C.Cir.1962) (Bazelon, C.J., dissenting). Courts and commentators, however, have been critical of any absolute rule against reviewability in cases of agency publicity. 6 Though in Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397, 402 (D.C.Cir.1975), we reiterated Hearst Radio 's conclusion that if an agency statement is "not a decisional pronouncement affecting legal rights and obligations" it is unreviewable, more recently, in Impro Products, Inc. v. Block, 722 F.2d 845 (D.C.Cir.1983), this court questioned the continuing validity of Hearst Radio where an agency's statements are "concededly false...." 722 F.2d at 849; see also Writers Guild of America, West, Inc. v. FCC, 423 F.Supp. 1064 (C.D.Cal.1976) (multiple speeches that were extra-legal, yet deliberate agency method for regulating the industry, found reviewable); cf. Independent Broker-Dealers' Trade Ass'n v. SEC, 442 F.2d 132, 142, 143 (D.C.Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57 (1971) (court implies that APA review might be proper where agency publicity pressure, itself possibly ultra vires, leads party to take action that injures another).

The problem with Hearst Radio 's absolute immunity rule for agency publications is its failure to accommodate two separate goals of a fair administrative process: protecting parties from false or unauthorized agency news releases and promoting Congress' clear mandate that government information, particularly from consumer-oriented agencies, reach the public. Both NIOSH and the EPA are charged with protecting the public welfare through investigations and reports on health conditions. See Occupational Safety and Health Act, 29 U.S.C. Secs. 669(a), (d), 671; Public Health Service Act, 42 U.S.C. Secs. 241(a), 4321, 4364, 4366. And like the National Highway Traffic Safety Administration's defect notification practices, see 15 U.S.C. Sec. 1412, or the FDA's warnings about poisonous foods, see 21 U.S.C. Sec. 375, the NIOSH and EPA powers would be crippled were these agencies not permitted to use the quick and cheap instrument of publicity. The same agency access to publicity, however, can unjustifiably injure other parties. See Gellhorn, Adverse Publicity By Administrative Agencies, 86 Harv.L.Rev. 1380 (1973) (lengthy discussion of industry effects of agency publicity). 7 Though there is broad consensus that this potential for harm is best controlled by internal agency restraint--i.e., careful attention to the accuracy of, the need for, and alternatives to adverse publicity, see, e.g., FTC Publicity Guidebook (agency guidelines on use of publicity)--where it does occur, courts have a duty to decide whether there

Page 1119

is a remedy under the APA for the release of the information.

Appellants and the district court analyzed APA review in terms of whether the Guide was a "rule" reviewable as agency action. Before focussing on the Guide's status as an agency rule, however, we first canvass the APA's definition of agency actions to ascertain whether the...

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