International Brominated Solvents Ass'n v. Acgih, 5:04-cv-394(HL).
| Citation | 625 F.Supp.2d 1310 |
| Decision Date | 06 May 2008 |
| Docket Number | No. 5:04-cv-394(HL).,5:04-cv-394(HL). |
| Parties | INTERNATIONAL BROMINATED SOLVENTS ASSOCIATION; Aero-Safe Products, Inc.; National Mining Association; and Anchor Glass Container Corporation, Inc., Plaintiffs, v. AMERICAN CONFERENCE OF GOVERNMENTAL INDUSTRIAL HYGIENISTS, INC.; Elaine Chao Secretary, U.S. Department of Labor; Tommy Thompson Secretary, U.S. Department of Health and Human Services, Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
Andrew Zimmitti, David Farber, Henry Z. Chajet, Patton Boggs LLP Attorneys at Law, John D. Austin, Jr., R. Brian Hendrix, Patton Boggs LLP, Washington, DC, William Camp Harris, Harris & James, LLP, William David Gifford, US Attorney's Office, Middle District of Georgia, Macon, GA, for Plaintiffs.
James H. Cox, Carlton Fields, Lynda Womack Kenney, Hall Booth Smith & Slover, P.C., Atlanta, GA, Matthew T. Strickland, Jones, Cork & Miller, LLP, Macon, GA, Steven John Fellman, Brendan Collins, David K. Monroe, Galland, Kharasch, Greenberg, Fellman & Swirsky, P.C., Daniel Bensing, Washington, DC, for Defendants.
At issue in this case is 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 workplace-safety exposure levels, known as Threshold Limit Values ("TLVs"), are adopted by Defendant American Conference of Governmental Industrial Hygienists ("ACGIH" or "Conference") and enforced by Defendant United States Department of Labor ("DOL" or "federal defendants") in violation of federal and state law. After this Court dismissed all but two claims from Plaintiffs' Amended Complaint (doc. 24), the parties engaged in extensive discovery, leading up to the filing of dispositive motions.
Currently pending before the Court are the parties' cross motions for summary judgment (docs. 203, 204, and 210). Specifically, Plaintiffs move for summary judgment on their Uniform Deceptive Trade Practices Act ("UDTPA") claim against ACGIH, ACGIH moves for summary judgment against Plaintiffs on said UDTPA claim, and DOL moves for summary judgment against Plaintiffs on the extant Administrative Procedures Act ("APA") claim. The parties have addressed the relevant legal issues through memoranda in support of their motions and oral argument at a hearing held on Tuesday, January 28, 2008. This Court has given careful consideration to these matters and presents its conclusion and disposition below.
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 concerned about the TLV for silica, a substance which is of critical importance to the glass industry.
The Department of Labor ("DOL") is a federal agency charged with promoting the welfare of the work force of the United States by, inter alia, ensuring safe working conditions. 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 and dissemination of TLVs, which are periodically included in generally available publications.
The controversy in this case surrounds TLVs. A TLV is a numerical value assigned to a substance and is designed by ACGIH to suggest the maximum 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 the public to comment on its proposed TLVs 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. The draft is then brought before 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.
Plaintiffs filed their original Complaint on November 17, 2004. Specifically, Plaintiffs' Complaint set forth five counts: Count I asserts a claim against all defendants for violations of the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App. 2 § 1 et seq.; Count II asserts a FACA-based claim against all defendants under the APA, 5 U.S.C. §§ 702, 704; Count III asserts a claim against ACGIH for violations of Georgia's UDTPA, O.C.G.A. § 10-1-372; Count IV asserts a claim against ACGIH for tortious interference with contractual and business relations; and Count V asserts claims against the DOL for violations of the APA, the Federal Register Act, 44 U.S.C. § 1501 et seq., the Paperwork Reduction Act, 44 U.S.C. § 101 et seq., and the Due Process Clause of the Fifth Amendment to the United States Constitution. A day after filing their Complaint, Plaintiffs sought a temporary restraining order ("TRO") in an attempt to prevent ACGIH from publishing the controversial TLVs. The Court denied Plaintiffs' TRO motion, finding that, inter alia, Plaintiffs could not demonstrate a substantial likelihood of success on the merits.
Shortly thereafter, Plaintiffs amended their complaint as of right, and both ACGIH and federal defendants moved to dismiss the Amended Complaint (doc. 24). In an Order dated March 11, 2005 (doc. 70), 393 F.Supp.2d 1362, the Court granted in part and denied in part the motions. Only two claims survived the motions to dismiss-one against ACGIH and one against DOL. In light of the relatively straightforward nature one would expect from a case with only two claims, the parties to this lawsuit have engaged in numerous discovery disputes throughout the litigation of the case at bar. After numerous extensions to the dispositive motions deadline, the parties submitted their motions for summary judgment, which are currently pending before the Court.
If "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law," then summary judgment must be granted. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact arises only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, the Court must evaluate all of the evidence, together with any logical inferences, in the light most favorable to the non-moving party. Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1560 (11th Cir.1995). The Court may not, however, make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact" which would entitle the moving party to a judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (internal quotation marks omitted). If the moving party meets this burden, the burden then shifts to the non-moving party to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact, or that the non-moving party is not entitled to a judgment as a matter of law. Id. at 324-26, 106 S.Ct. 2548. This evidence must consist of more than mere conclusory allegations. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.1991). Under this scheme summary judgment must be entered "agai...
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US Dominion, Inc. v. Powell
...or distributing products similar to those sold and distributed by Plaintiffs." Int'l Brominated Solvents Ass'n v. Am. Conf. of Governmental Indus. Hygienists, Inc. , 625 F. Supp. 2d 1310, 1318 (M.D. Ga. 2008). But the court reached that conclusion only after distinguishing other cases in wh......