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CITIZENS FOR A BETTER ENVT. UNITED NEIGHBORHOOD OR

January 10, 1989

CITIZENS FOR A BETTER ENVIRONMENT, UNITED NEIGHBORHOOD ORGANIZATION OF SOUTHEAST CHICAGO AND MARY ELLEN MONTES, Plaintiffs,
v.
LEE M. THOMAS, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, Defendant, and ACME STEEL COMPANY and LTV STEEL COMPANY, INC., Intervenors


Harry D. Leinenweber, United States District Judge.


The opinion of the court was delivered by: LEINENWEBER

HARRY D. LEINENWEBER, UNITED STATES DISTRICT JUDGE.

 Section 21 of the Toxic Substances Control Act ("TSCA" or the "Act"), 15 U.S.C § 2620, permits citizens to petition the Administrator of the Environmental Protection Agency ("EPA") to initiate rulemaking under various provisions of TSCA. If the EPA denies a citizen petition or fails to act on it within ninety days the citizen may present his petition to an United States District Court for de novo consideration. 15 U.S.C § 2620(b)(4).

 This case arises out of a petition filed by plaintiffs, Citizens for a Better Environment ("CBE"), requesting that the EPA initiate rulemaking pursuant to 15 U.S.C. § 2603, which provides for the promulgation of rules requiring testing of certain chemical substances and mixtures where there may be an unreasonable risk of injury to health and the environment and where there is insufficient data to determine if such a risk exists. Specifically, the CBE asked the EPA to compel business entities in southeast Chicago whose business includes the production of, inter alia, coke oven emissions to test such emissions. The EPA denied the petition explaining that:

 
"The toxicological properties of these ten substances in one mixture (coke oven emissions) are already well documented and therefore regulatory decisions concerning them can be made without requiring further testing" and "no standards exist at present for the testing of multiple chemicals for their toxicological interactions and the state of the art in this area is insufficient for prescribing how the testing which the petitioners' request should be conducted, or for assuring that the test data be reliable and adequate."

 50 F.R. 30518. As a result of this denial plaintiffs commenced this action in this court under Section 2620.

 On April 11, 1988 this court permitted Acme Steel Company ("Acme") and LTV Steel Company ("LTV") to intervene pursuant to Fed.R.Civ.P. 24(a)(2) in order to litigate the constitutionality of 15 U.S.C. § 2620(b)(4). This court found at that time that Acme and LTV were claiming a direct and substantial interest in the proceeding which was subject to impairment because the testing which plaintiffs seek is expensive and invasive and would certainly be required of them as southeast Chicago steel producers who use coke ovens. While any rules which may result from these proceedings could be tested under judicial review procedure (Section 2618), the constitutionality of Section 21 could not be.

 Accordingly, the court now has before it for decision the constitutionality of Section 2620(b)(4).

 Standing

 Plaintiffs have raised the issue of intervenor standing to litigate the constitutionality of Section 2620(b)(4). However this court has previously ruled under Fed.R.Civ.P. 24(a)(2) that Acme and LTV may intervene in these proceedings for precisely the purpose which plaintiffs seek to deny: to argue the constitutionality of Section 2620(b)(4). The issue is somewhat moot anyway insofar as the EPA has itself questioned the court's jurisdiction to grant the relief prayed for by plaintiff and has taken an extremely strained and attenuated interpretation of Section 2620(b)(4) in its brief on the issue of constitutionality. (Defendant's Response to Intervenor's brief, p. 1). Accordingly, the court will consider the constitutionality of Section 2620(b)(4).

 TSCA

 Intervenors contend that Section 2620(b)(4) allows the court through de novo hearing to substitute its judgment for that of the EPA and thereby control the administration of the Act, which they argue violates the separation of powers doctrine. Intervenors also contend that Section 2620(b)(4)(b) sets forth a different standard for the court than that required of the EPA under Section 2603(a). Specifically, Section 2603(a) requires that the EPA find that testing is "necessary" while Section 2620(b)(4) does not make the same requirement for the court. This in the intervenors' opinion amounts to a legislative veto because it subordinates the executive to the judiciary by legislative directive. As authority for this intervenors' cite INS v. Chadha, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983).

 Intervenors further assert that Section 2620(b)(4) provides for judicial infringement on executive powers by assigning to the judiciary an administrative function. Specifically, the administrative function is the power to substitute the court's judgment for that of the EPA on such questions as the reasonableness of the risk of exposure to a chemical and the sufficiency of the technical evidence available to the EPA administrator. Section 2620(b)(4)(B) These questions are political in nature, the argument goes, in that they require judgments on the acceptability of the risks of particular chemicals to the environment. Plaintiffs' answer that TSCA is unquestionably constitutional and points to a host of examples where the legislature assigned to the judiciary de novo review of administrative ...


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