Intern. Brominated Solvents v. Amer. Conference

• Decision Date: 11 March 2005
• Docket Number: No. 5:04CV394 (DF).,5:04CV394 (DF).
• Citation: 393 F.Supp.2d 1362
• Parties: INTERNATIONAL BROMINATED SOLVENTS ASSOCIATION; National Mining Association; Aerosafe Products, Inc.; and Anchor Glass Container Corp., Plaintiffs, v. AMERICAN CONFERENCE OF GOVERNMENTAL INDUSTRIAL HYGIENISTS, INC.; Elaine Chao, Secretary, United States Department of Labor; and Michael O. Leavitt, Secretary, United States Department of Health and Human Services, Defendants.
• Court: U.S. District Court — Middle District of Georgia

393 F.Supp.2d 1362

INTERNATIONAL BROMINATED SOLVENTS ASSOCIATION; National Mining Association; Aerosafe Products, Inc.; and Anchor Glass Container Corp., Plaintiffs, v. AMERICAN CONFERENCE OF GOVERNMENTAL INDUSTRIAL HYGIENISTS, INC.; Elaine Chao, Secretary, United States Department of Labor; and Michael O. Leavitt, Secretary, United States Department of Health and Human Services, Defendants.

No. 5:04CV394 (DF).

United States District Court, M.D. Georgia, Macon Division.

March 11, 2005.

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William Camp Harris, Macon, GA, Henry Z. Chajet, Washington, DC, for Plaintiff.

David K. Monroe, Daniel Bensing, Elizabeth J. Shapiro, Washington, DC, Matthew T. Strickland, William David Gifford, Macon, GA, for Defendants.

ORDER

FITZPATRICK, District Judge.

There are currently three Motions to Dismiss pending before the Court: two have been filed by Defendant American Conference of Governmental Industrial Hygienists, Inc. ("ACGIH") (tabs 27 & 32)¹ and one has been jointly filed on behalf of Defendants Elaine Chao, Secretary, United States Department of Labor, and Michael O. Leavitt,² Secretary, United States Department of Health and Human Services ("federal defendants") (tab 43). Because the motions raise similar issues, they will be considered together.

This action has been initiated to prevent the adoption and enforcement of workplace-safety exposure levels for four chemical substances — silica, copper, n-propyl bromide ("nPB"), and diesel particulate matter ("DPM"). Plaintiffs are International Brominated Solvents Association ("IBSA"), National Mining Association ("NMA"), AeroSafe Products, Inc., ("AeroSafe"), and Anchor Glass Container Corporation ("Anchor Glass"). IBSA and NMA are trade associations whose members deal in the four substances at issue. They have consequently alleged claims on behalf of their members. AeroSafe and Anchor Glass, each of whom deal in at least one of the substances at issue, allege claims on their own behalf. Plaintiffs collectively maintain that the safety levels, known as Threshold Limit Values ("TLVs"), are adopted by ACGIH and enforced by the federal defendants in violation of federal and state law.

Specifically, the allegations in Plaintiffs' complaint are set forth in five counts: Count I asserts a claim against all defendants for violations of the Federal Advisory Committee Act ("FACA"), 5 U.S.C.A.App. 2 § 1 et seq. (West 1996); Count II asserts a claim against all defendants for violations of the Administrative Procedure Act ("APA"), 5 U.S.C.A. § 551 et seq. (West 1996); Count III asserts a claim against ACGIH for violations of Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-372 (Lexis 2000); Count IV asserts a claim against ACGIH for tortious interference with contractual and business relations; and Count V asserts claims against one of the federal defendants, the United States Department of Labor, for violations of the APA, the Federal Register Act ("FRA"), 44 U.S.C.A. § 1501 et seq. (1991), the Paperwork Reduction Act ("PRA"), 44 U.S.C.A. § 101 et seq. (1991), and the Due Process Clause of the Fifth Amendment.

The parties have addressed the relevant legal issues by written memoranda and oral argument, and the Court has given careful and full consideration to the matter. For the reasons explained below, Defendants' motions are GRANTED in part and DENIED in part.

I. FACTS

This lawsuit involves an attempt to enjoin the adoption and enforcement of four TLVs adopted by the ACGIH. Plaintiffs allege that ACGIH's TLVs are illegally adopted, illegally enforced by the federal government, and cause Plaintiffs and their members to suffer severe economic injury. In addition to seeking declaratory and injunctive relief, Plaintiffs seek damages for anticipated reductions in profits, increased regulatory costs, and increased litigation exposure.³

Plaintiff IBSA is an Illinois non-profit trade association that represents the interests of businesses which produce, use, or otherwise deal in brominated products, including nPB, that are affected by ACGIH's TLVs. Plaintiff NMA, a non-profit, national trade association incorporated in Delaware, represents members who produce coal, metals, and minerals affected by the TLVs in question. Plaintiff AeroSafe is a Georgia corporation that sells products containing nPB to the aviation industry. Plaintiff Anchor Glass is a glass manufacturer incorporated in Delaware with facilities in the Middle District of Georgia. Anchor Glass is particularly interested in the TLV for silica, a substance which is of critical importance to the glass industry.

Defendant ACGIH is a private, non-profit association consisting of professionals who work in the field of occupational safety. Its members are employed in both the public and private sectors as well as in academia. Among the services performed by ACGIH is the creation of TLVs which are included periodically in publications sold to the public. A TLV is a numerical value assigned to a substance and is designed by ACGIH to suggest the maximum exposure level at which a person may be exposed to a given substance and yet remain safe from the health risks associated with that substance. New TLVs are adopted, and current TLVs are reviewed, at the request of an ACGIH committee member. When such a request is made, the ACGIH Board places the substance on its "Under Study" list, which is then published each year in ACGIH's books, magazines, newsletters and on its website. ACGIH invites public comment and solicits information regarding the substances under study.

Once a substance has been posted to the "Under Study" list, an ACGIH subcommittee member is responsible for gathering supporting documentation for the proposed TLV and submitting a draft of the TLV to his or her subcommittee and then to the full committee. After the ACGIH Board of Directors ratifies a proposed TLV, a Notification of Intended Change ("NIC") is posted in various ACGIH publications and on its website.

TLV proposals retain their status as proposals for approximately one year while the public is invited to submit information relevant to their adoption. The posting of the NIC and the exchange of public comment take place through ACGIH publications rather than through the Federal Register. Plaintiffs maintain that none of the information provided by the public is considered in the decision to adopt a final TLV; that the TLVs are false and deceptive because they are not supported by credible science; and that the TLVs are drafted in secret by undisclosed ACGIH members.

The federal defendants, are charged with, among other things, ensuring the safety of American workers. In furtherance of this goal, Congress has delegated authority to DOL to design procedures for disseminating information about the presence of hazardous materials in the workplace. DOL's Hazard Communication Rule, 29 C.F.R. § 1910.1200, incorporates by reference ACGIH's TLVs as establishing certain substances or materials deemed to be hazardous. The Rule also imposes affirmative obligations on employers. For instance, it requires that employers who deal in TLV-covered substances publish lists alerting their employees and others that such substances may compromise their safety.

Plaintiffs challenge the federal government's reliance on TLVs to indicate which substances pose a risk to workplace safety. This reliance, according to Plaintiffs, effectively turns TLVs into binding federal rules, which are promulgated in violation of the APA. In addition, Plaintiffs contend that the federal government may not properly make use of the TLVs because ACGIH violates the requirements of FACA, thereby making its work invalid.

Plaintiffs filed their First Amended Complaint on December 13, 2004, "seek[ing] declaratory and injunctive relief" to prohibit ACGIH from "considering, creating, publishing, promulgating, adopting, using, or recommending" TLVs for silica, copper, nPB, and diesel particulate matter. Pls.' Am. Compl., tab 24, at ¶ 1. Plaintiffs also seek "to prohibit federal government Defendants from allowing their officials and employees to seek, suggest, use, adopt, rely upon, promulgate, or enforce" such TLVs. Pls.' Am. Compl., tab 24, at ¶ 1. Finally, Plaintiffs request "compensation for damages from and caused by Defendant ACGIH." Pls.' Am. Compl., tab 24, at ¶ 1.⁴

It should be noted at the outset that Anchor Glass, along with a number of other plaintiffs, brought a similar suit against the same defendants in this Court approximately four years ago. Though some of the issues raised in that suit overlap some of the issues now before the Court, the most significant ones do not. For instance, a review of the Court's Order on the defendants' motion to dismiss in the prior lawsuit reveals that the Court did not address the private-right-of-action argument made in this case. Nor did the Court address the requirements a plaintiff must meet to challenge an agency action under the APA. Therefore, the claims asserted in each case are sufficiently distinct that the Court sees little reason to rely heavily on its prior decision to support the conclusions reached below.

II. STANDARD OF REVIEW

Defendants move to dismiss the claims in Plaintiffs' amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, except with respect to the claims asserted in Counts I and V, which Defendants move to dismiss under Rule 12(b)(1). The standard to be applied under Rule 12(b)(1) will be discussed in the section devoted to standing.

The purpose of a Rule 12(b)(6) motion is to determine whether the plaintiff's complaint states a legally sufficient claim for relief. See 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (2d ed. 1990 & Supp.2000). The Supreme Court has articulated the following standard for evaluating a Rule 12(b)(6) motion:

In appraising the sufficiency of the complaint we...