Industrial Safety Equipment Ass'n, Inc. v. EPA, Civ. A. No. 86-1605.

Citation656 F. Supp. 852
Decision Date27 February 1987
Docket NumberCiv. A. No. 86-1605.
PartiesINDUSTRIAL SAFETY EQUIPMENT ASSOCIATION, INC., et al., Plaintiffs, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
CourtU.S. District Court — District of Columbia

William E. Wickens, Paul A. Koches, Frank Pergolizzi, Wickens, Koches & Cale, Washington, D.C., for plaintiffs.

David Dearing, Karen L. Florini, Land & Natural Resources Div., Dept. of Justice, Alan Carpien, U.S. E.P.A., Washington, D.C., Martin Siegel, Nat. Inst. of Occ. Safety & Health, Dept. of HHS, Atlanta, Ga., for defendants.

MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

This action was filed on June 10, 1986, seeking review under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, et seq., of a report published jointly in April, 1986 by the Environmental Protection Agency ("EPA") and the National Institute for Occupational Safety & Health ("NIOSH") entitled A Guide to Respiratory Protection for the Asbestos Abatement Industry ("Report"). Among other things, the Report recommends industry use of only two of the 13 federally-certified types of asbestos-protection respirators. Plaintiffs are Industrial Safety Equipment Association, Inc. ("ISEA"), a national association of industrial safety equipment manufacturers, and three corporate manufacturers of federally-certified asbestos protection respirators.1 Plaintiffs contend that defendants,2 through issuance of the Report, have unlawfully failed to comply with the requirements of the APA, and have abrogated plaintiffs' constitutional due process rights. Defendants have moved to dismiss under Fed.R.Civ.P. 12(b)(6), contending that the Report is not "agency action," or "final" agency action, and that no due process "deprivation" has occurred.

BACKGROUND

The EPA and NIOSH have statutory responsibility to regulate the presence of asbestos in the work environment under the Occupational Safety & Health Act of 1970 ("OSH Act"), 29 U.S.C. § 651, et seq. (1982), and to implement procedures to abate workplace hazards from asbestos exposure.3 The present OSHA standard establishing the permissible exposure level ("PEL") for asbestos was set in 1976 after notice and comment, at 2 fibers per cubic centimeter. 29 C.F.R. § 1910.1001(b). OSHA is in the process of revising this standard, to reduce the PEL to a proposed level of between .2 and .5 fibers per cubic centimeter. This rulemaking proceeding is ongoing, and is not challenged by plaintiffs.

Applicable regulations set forth abatement procedures for employers to meet the PEL standards, and permit the use of respirators in only limited circumstances. See 40 C.F.R. § 763.121(d)(1). In general, respirators may be used in emergencies or by employees who are removing existing asbestos structural hazards, where preferred methods of abatement are technically not feasible. Id. When permitted, a respirator must be selected from among those formally approved by the Mine Safety & Health Administration ("MSHA") or NIOSH. 40 C.F.R. § 763.121(d)(2). MSHA and NIOSH issue certificates of approval in accordance with procedures set forth in 30 C.F.R. § 11.30, et seq. Certificates are issued only for respirators that have been fully tested and determined to meet the minimum regulatory requirements. Id. at § 11.30(a). The certificate must contain any restrictions or limitations on the respirator's use, id. at § 11.30(b), but there is no provision for specific graded ranking of certified respirators. MSHA and NIOSH may revoke any certificate for cause, but no regulations establish procedures for such revocation. Id. at § 11.34.

NIOSH and EPA produced the Report to provide a hitherto unavailable comprehensive guide to the selection and use of respiratory protection equipment for the asbestos abatement industry. Three factual determinations are set forth that underlie the NIOSH and EPA recommendations in the Report:

(1) there is no known risk-free level of exposure to asbestos, an established human carcinogen;
(2) maximum respiratory protection should be provided to workers engaged in asbestos abatement operations, in all situations; and
(3) "filter-type" respirators, which screen the ambient atmosphere for contaminants, do not provide as high a degree of protection from asbestos particles as do respirators that supply clean pressurized air from a protected source.

See Report, p. 2. The Report lists all types of available certified respirators, and notes that all of them may be used under existing regulations. In unequivocal language, however, the Report encourages the use of only two types of respirators, which EPA and NIOSH have determined provide maximum protection.

Plaintiffs, all of whom manufacture various types of certified respirators, contend that the Report is an unlawful rulemaking changing the PEL and respirator requirements, and that it has in effect revoked the certification of some of their respirators, without required procedures and in violation of their fifth amendment due process rights. Defendants assert that the Report is neither "agency action" nor "final agency action," and that no due process violation has occurred. The Court agrees that the issuance of the Report is not reviewable agency action, and shall dismiss claims seeking APA review, pursuant to Rule 12(b)(6). Claims concerning the unlawful revocation of certification, and related due process deprivation are also appropriately subject to dismissal, based upon the facts as alleged.

DISCUSSION

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must dismiss a complaint that fails to state a claim on which relief can be granted. Fed.R.Civ.P. 12(b)(6). In reviewing a complaint under this standard, the court must presume all factual allegations of the complaint to be true, and must draw all reasonable inferences in favor of the non-movant. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court's review is limited to the pleadings, which in this case include the appended pages of the disputed Report.

A. Reviewable Agency Action

Counts I, III, and IV attack the Report as a rulemaking implemented without the procedural protections of the APA. Defendants contend that APA scrutiny of the Report is not available, as its issuance is not "agency action" within the meaning of the APA. The APA defines "agency action" to include "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). In Hearst Radio, Inc. v. F.C.C., 167 F.2d 225 (D.C. Cir.1948), the Court of Appeals for this Circuit held that an agency decision to disseminate information it had gathered on its own did not amount to agency action. The court therefore affirmed the District Court's dismissal of plaintiff's claims that allegedly false representations in the report were actionable libel, holding that the claim of libel implicated no statutory, reviewable agency action under the APA. The wisdom of this result was questioned in Impro Products, Inc. v. Block, 722 F.2d 845 (D.C.Cir.1983), and the court suggested that the "no action" analysis might lead to a different conclusion today if there is specific statutory authorization to distribute the information, and if the material contains "concededly false" information. Id. at 849. The court did not reject the basic principle set forth in Hearst, however, and its application to this case — where there is no specific statutory reporting authorization, and where the Report is not alleged to contain tortious statements — appears proper.

In determining whether an agency report is reviewable "agency action," courts look to the actual interpretation and effect of the report. In general, an agency statement that announces a rule of law, imposes obligations, determines rights or liabilities, or fixes legal relationships is reviewable agency action. See American Trucking Assoc. v. United States, 755 F.2d 1292, 1296 (7th Cir.1985) (ICC economic report found not to be agency action). A recent decision in this Circuit further indicates that an agency report that makes findings, but that does not alter legal obligations, is not "agency action" subject to direct appellate review. Radio-Television News Directors Ass'n. v. FCC ("RTNDA"), 809 F.2d 860, 862 (D.C.Cir. 1987) (applying Federal Communications Act, 47 U.S.C. § 151 et seq. (1982)).4 Thus, it appears that where an agency disseminates information in the absence of a specific statutory authorization, and the publication does not bind the agency, or alter the rights, liabilities, obligations, or legal relationships of private parties, then no reviewable "agency action" has occurred.

Under this analysis, issuance of the Report is not "agency action" under the APA. It does not change the standards necessary to obtain certification, nor does it restrict or revoke existing certification. No employer or manufacturer is obligated to use or produce a different type of respirator, and there is no indication that adverse agency action would follow if a nonrecommended, certified respirator were sold or used. Further, the Report is consistent with the certification regulations, as it indicates that it recommends only respirators which provide maximum protection; the regulations expressly state that certification is available to all respirators that meet minimum protection requirements. The Report also indicates that the remaining types of respirators remain available for use in compliance with regulatory requirements. To the extent plaintiffs' claims seek review under the APA therefore, they shall be dismissed.5

B. Unlawful Certification Deprivation

Plaintiffs contend that the Report has unlawfully revoked their certificates, and has deprived them of a constitutionally protected property interest without due process of law. It is well settled that an agency license can create a protectible property interest, such that it cannot be revoked...

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