Asbestos Disease Awareness Organization v. Wheeler

Background

The plaintiffs in the first case were nonprofit public-health and environmental organizations that promote awareness of asbestos-related health risks. The plaintiffs in the related case were 10 states led by California and the District of Columbia. They challenged the Environmental Protection Agency’s denial of petitions asking the agency to begin rulemaking under Section 8(a) of the Toxic Substances Control Act. The requested changes would have expanded asbestos reporting under the Chemical Data Reporting rule, including by addressing exemptions for asbestos-containing articles, impurities, and processors; lowering the reporting threshold; eliminating the naturally occurring substances exemption; requiring earlier reporting; and addressing confidential business information.

The agency denied the petitions, stating in part that it already possessed the requested information, that additional reporting would be duplicative or unnecessary, that changes would not help the asbestos risk evaluation in time, and that the request concerning confidential business information was not appropriate for a petition under Section 21 of the Toxic Substances Control Act. In an earlier ruling in these cases, the court held that the Administrative Procedure Act supplied the appropriate standard of review because the petitions sought amendments to existing rules.

Standing

The court held that the organizational plaintiffs had standing to sue in their own right. It found that the organizations showed informational injuries from being denied more complete asbestos information and organizational injuries because inadequate information diverted resources from their advocacy, education, and public-health missions. The Environmental Protection Agency stipulated to the standing of the Asbestos Disease Awareness Organization but did not stipulate to the standing of the other organizations; the court nevertheless found that the organizations had demonstrated standing.

The court also held that the states had traditional standing and informational standing. The states submitted evidence that incomplete asbestos information impaired state programs addressing workplace hazards, chemical exposures, environmental health, and asbestos-related health-care costs. The court found that the alleged injuries were traceable to the agency’s reporting rules and could be redressed by requiring more complete information gathering.

Merits

Under the Administrative Procedure Act, a court may set aside agency action that is arbitrary or capricious. The court concluded that the agency had failed to take the required “hard look” at the value and availability of additional asbestos information.

The court identified three significant reporting gaps. First, the article exemption prevented the agency from systematically collecting information about asbestos-containing products, including their import volumes and downstream uses. Second, the impurities exemption prevented the agency from determining what information companies might reasonably be expected to possess about asbestos contamination, including information from third-party testing. Third, the processor exemption and the agency’s reliance on voluntary reporting failed to capture sufficiently complete information about downstream asbestos processing.

The court also found that the agency’s modeling could not cure these gaps because reliable and sufficiently comprehensive raw data were needed to produce accurate assessments. The court considered a draft asbestos risk evaluation and a report from the agency’s Science Advisory Committee on Chemicals as evidence relevant to whether the agency had considered all relevant factors and adequately explained its decision.

The court held that the agency could not rationally conclude that additional reporting would be duplicative when it had not first determined the full range of information reasonably available from manufacturers, importers, and processors. Because the agency had not adequately examined the information gaps or explained why it declined to use its statutory authority to require additional reporting, the denial of the petitions was arbitrary and capricious and not in accordance with law.

Disposition

The court granted plaintiffs’ motions for summary judgment and denied the Environmental Protection Agency’s cross-motions for summary judgment. It remanded the matter to the agency with instructions to proceed consistently with the order and to amend the Chemical Data Reporting rule under Section 8(a) of the Toxic Substances Control Act to address the information-gathering deficiencies identified by the court. Judge Edward M. Chen retained jurisdiction to ensure compliance. The order disposed of the listed motions in both related cases.