Tobacco Documents Online

IN'THE UNITED STATES DISTRICT COURT FOR'THE DISTRICT OF COLUMBIA WASHINGTON LEGAL FOUNDATION ) 1705 N. ST. NW ) WASHINGTON', D.C. 20036 ) ) Plaintiff, ) ) vs. ) Civil Action No. ) UNITED STATES ENVIRONMENTAL ) PROTECTION'AGENCY, ) 401 M Street S.W. ) Washingtoni, D.C. 20460 ) ). and ) ) WILLIAM K. REILLY, ) Administrator, Environmental ) ProtectioniAgency, ) 401 Mi. Street, S.W. ) Washingtoni, D. C. 20460 ) ) Defendants. ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF COMES NOW plaintiff, Washington Legal Foundation ("WLF'''), and for its cause of action against the defendant United States Environmental Protection Agency and the defendant Administrator William K. Reilly states and alleges as follows: I. NATURE OF COMPLAINT 1. This is a civil action for declaratory and injunctive N relief for violation of §§ 403 and 404 of the Radon Gas and Indoor ~ Air Quality Research Act of 1986, 42 U.S.C. § 7401 (an Act, Oct. '~ ~ 17, 1986, P.L. 99-499, Title IV, §§ 401-405, 1001 Stat. 1758, ~ ~ effective on enactment on Oct. 17, 1986), the Federal Advisory ~ ~ Committee Act, 5 U.S.C. App. 2 § 5(b)(2), and Section 706(2)(C) of

the Administrative Procedure Act, 5 U.S.C. § 706(2):(C). Plaintiff seeks a declaration that the Environmental Protection Agency and Administrator Reilly have violated the Federal Advisory Committee Act, 5 U.S.C. App. 2 § 1, et sea., and the Radon Gas and Indoor Air Quality Research Act of 1986. Plaintiff also seeks an inj'unction enjoining the defendants from taking any further actions under the Radon Gas and Indoor Air Quality Act until such time as they comply with the mandatory statutory requirements of that Act. 2. Plaintiff further seeks a declaration because of their clear statutory violations, that defendants lack authority to carry out any research program pursuant to the Radon Gas and Indoor Air Quality Research Act of 1986, unless and until defendants comply with the mandatory requirements of the Federal Advisory Committee Act and~ the Radon Gas and~ Indoor Air Quality Research Act of 1986. 3. In addition, plaintiff seeks a declaration that defendants have acted in excess of their authority in conducting the Environmental Tobacco Smoke ("ETS")~ Risk Assessment in contra- vention of §§ 403 and 404 of the Radon Gas and Indoor Air Quality Research Act and that they have no authority under that Act to conduct such a risk assessment. Plaintiff seeks to have the ETS Risk Assessment declared void because it was created't without authority and its creation is in violation of § 403(c) of the Act. - 2 -

II. THE PARTIES 4. Plaintiff is an organization whose membership consists of [this should be supplemented by WLF]. It is a public interest organization dedicated to supporting the precepts of individual liberties and the free enterprise system in the administrative agencies and the courts. It is located in Washington, D.C. Plaintiff and plaintiff's members are "directly affected" by defendants' unlawful conduct. 5. Plaintiff and plaintiff's members have been and will continue to be harmed by defendants' unlawful conduct. 6. Plaintiff and plaintiff's members have been and will continue to be injured because they have not been represented on the "advisory group" mandated by the Radon Gas and Indoor Air Quality Research Act as explained further in the Factual Alleg,ations of the Complaint even though plaintiff has requested the opportunity to participate in the formulation of the "advisory group." [Such request was .1 7. Plaintiff and plaintiff''s members have been and will continue to be injured by the defendant's unlawfull publication of the Draft ETS Risk Assessment entitled "'Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders" ~ classifying ETS as a"Group,A Carcinogen." ~ 8. Publication of the Draft Risk Assessment amounted ~ ~ to a significant policy decision made without input from a properly ~ constituted Advisory Group which included representatives of ~ - 3' -

industry and public interest organizations. Thus, plaintiff and plaintiff's members have been injured by being denied the opportunity to dissuade EPA from undertaking this unauthorized activity. 9. Defendant United States Environmental Protection Agency ("EPA") is an~ independent agency of the Executive Branch established by Congress, pursuant to the Reorganization Plan~ of 1970, to coordinate and implement federal governmental action to assure the protection of the environment in accordance with specific statutory authority. As such, the EPA is subject to the Federal Advisory Committee Act, 5 U.S.C. App. 2§ 1, et s.ea. 1&. Defendant William K. Reilly is the appointed Ad- ministrator of the EPA, and this action is maintained against him only in his official capacity. Administrator Reilly (~"the Adminis- trator''') is responsible either directly or through his subordinates for, inter alia, ensuring compliance by the EPA with the terms of the Radon Gas and Indoor Air Quality Act of 1986, Title IV of the Superfund Amendments and Reauthorization Act of 1987, 42 U,.S.C. § 704, the Federal Advisory Committee Act, and the Administrative Procedure Act. III. JURISDICTION AND VENUE 11. This court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. § 1331. Declaratory relief is authorized by 28 U.S.C. §§ 2201-02 and~ Fed. R. Civ. P. 57 and injunctive relief is authorized by Fed. R. Civ. P. 65. 4

12. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and (e). IV. FACTUAL ALLEGATIONS 13. The Federal Advisory Committee Act, 5 U.S.C. App. 2 § 1, et sea., ("FACA") requires that the membership of all advisory committees established or authorized by Congress be "'fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee ...." Id'. § 5(b)(2). 14. The EPA's Science Advisory Board ("SAB"') was created by Congress in the Environmental Research, Development, and Demon- stration Authorization Act of 1978 ("ERDDA Act"), 42 U.S.C. § 4365 and' is an "advisory committee" as defined! by the Federal Advisory Committee Act. The ERDDA Act directed the EPA Administrator to establish an SAB to be composed of at least nine independent members who would provide scientific advice to the Administrator. The Act and its legislative history make clear that the membership of the SAB' cannot represent "outside" interests such as the states, industry or public interest groups or be used as a forum by these interests to criticize the workings of the EPA. 15. The Congressional Findings set forth in the Radon Gas and Indoor Air Quality Research Act, 17 U.S.C. § 7401, emphasize the research and radon oriented objectives of that Act: ~ The Congress finds that: O ~. (1) High levels of radon gas pose a serious ~ health threat in structures in certain areas of ~ the country. N ~ ~ ~ ~ - 5 -

(2) Various scientific studies have suggested that exposure to radon~, including exposure to naturally occurring radon and indoor air pollutants, poses a public health risk. (3) Existing Federal radon and indoor air pollutant research programs are fragmented and underfunded. (4) An adequate information base concerning exposure to radon and~ indoor air pollutants should be developed by the appropriate Federal agencies. 16. In a narrow grant of authority, the Radon Gas and Indoor Air Quality Research~ Act, 17 U.S.C. § 7401, provides the EPA with a limited authorization to conduct a data gathering! research program relating to radon and indoor air quality: Sec. 403. Radon gas and indoor air quality research program.. (a) Design of prog;ram,. The Administrator of the environmental Protection Agency shall establish, a research program with respect to radon gas and indoor air quality. Such programs shall be designed to -- (1) gather data and information, on all aspects of indoor air quality in, order to contribute to the understanding of health problems associated with the existence of air pollutants in the indoor environment; (2) coordinate Federal, State, local, and private research and development efforts relating to the improvement of indoor air quality;; and (3) assess appropriate Federal Government actions to mitigate the environmental and health risks associated with indoor air quality problems. (b) Program requirements. The research program required under this section shall include -- 6

(1) research and development concerning the identification, characterization, andmonitoring of the sources and levels of indoor air pollution, including radon, which includes research and development relating,to -- (A) the measurement of various pollutant concentrations and' their strengths and sources, (B) high-risk building types, and (C) instruments for indoor air quality data collection~; (2) research relating to the ef fects of indoor air pollution and radon on human health;. (3) research and development relating to control technologies or other mitigation measures to prevent or abate indoor air pollution (including the development, evaluation, and testing of individual and' generic control devices and systems); (4) demonstration of methods for reducing or eliminating~ indoor air pollution and radon, including sealing, venting,, and other methods that the Administrator determines may be effective; (5) research, to be carried out in~ conjunction with the Secretary of Housing and' Urban Development, for the purpose of d'eveloping -- (A) methods for assessing the potential for radon contamination of new construction, including (but not limited to) consideration of the moisture content of soil, porosity of soil, and radon content of soil; and (B) design measures to avoid indoor air pollution; and (6) the dissemination of information to assure the public availability of the findings of the activities under this section. - 7 -

17. The Radon Gas and Indoor Air Quality Research Act clearly does not authorize the EPA (i) to regulate indoor air quality, or (ii) to conduct health risk assessments in anticipation of regulatory authority to regulate indoor air quality. 18. The Radon Gas and Indoor Air Quality Research Act provides limited, and carefully defined, areas of responsibility for three separate and distinct "advisory committees": (c) Advisory committees. The Administrator shall establish a committee comprised of individuals representing Federal agencies [Federal Agency Advisory Committee -- Committee #'1 ] concerned with various aspects of indoor air quality and an advisory group [Radon Act Advisory Committee -- Committee #'2 ] comprised of individuals representing the States, the scientific community, industry, and public interest organizations to assist him in carrying out the research program for radon gas and indoor air quality., (d) Implementation plan. Not later than 90 days after the enactment of this Act, the Administrator shall submit to the Congress a plan for implementation of the research program under this section. Such plan~ shall also be submitted to the EPA Science Advisory Board' [the SAB -- Committee #3 ],, which shall, within a reasonable period of time, submit its comments on such plan to Congress. 19. It is clear from the foregoing that under the Radon Gas and~ Indoor Air Quality Research Act the EPA Administrator °'shall establish" a new Federal Agency Advisory Committee (Committee #'1) 1°comprised of individuals representing Federal agencies concerned with various aspects of indoor air quality . . . to assist him in carrying out the research program for radon~ gas and indoor air quality." - 8' -

20. As indicated in Paragraph 18, it is also clear that the Radon Gas and Indoor Air Quality Research Act specifically mandates that the EPA Administrator "shall establish" a new "advisory group comprised of individua]:s representing the States, the scientific community, industry, and public interest organizations to assist him in carrying out the research program for radon gas and indoor air quality." This "Radon Gas Act Advisory Committee"' (Committee #'2) is to be distinct and separate from the Federal Agency Advisory Committee discussed in Paragraph~19, supra, and the Science Advisory Board (Committee #3) discussed in Paragraph~ 21, infra. 21. The Radon Gas and Indoor Air Quality Research Act specifically mandates that the Science Advisory Board~ of the EPA (see Paragraphs 13-14, supra) shall review, and comment upon~, the general plan of research under the Act. The statute mandates that the EPA Administrator "shall" submit the research implementation plan to the Science Advisory Board (Committee #3) of the EPA. The review of the research implementation plan~is the only role assigned to the Science Advisory Board of the EPA under the Radon Gas and Indoor Air Quality Research Act. 22. The IAQTHEC is essentially a subcommittee of the N Science Advisory Board: which was formed as part of the SAB pursuant ~ ~ to 42 U.S.C. § 4365. The IAQTHEC reviewed an initial draft of ~ N EPA's risk assessment on ETS and held hearings on, the draft on Cwi ~ N )-A 9

December 4-5, 1990, in Washington, D.C. At that time the membership of the IAQTHEC was as follows: Chairman Dr. Morton,Lippmann, Professor, Institute of Environmental Medicine, New York University Medical Center Vice Chairman D--. Jan A.J. Stolwijk, Professor, School of Medicine, Department of Epidemiology and Public Health, Yale Univers ity Members Dr. Joan Daisey, Senior Scientist, Indoor Environment Programi, Lawrence Berkeley Laboratory Dr. Victor G. Laties, Professor of Toxicology, Environmental' Health Science Center, University of Rochester School of Medicine Dr. Jonathan M. Samet, Professor of Medicine, Department of Medicine, The University of New Mexico School of Medicine, and~The New Mexico Tumor Registry Dr. Jerome J. Wesolowski,, Chief, Air and Industrial Hygiene Laboratory, California Department of Healthi Dr. James E. Woods, Jr., Professor of Building Construction, College of Architecture and Urban Studies, Virginia Polytechnic Institute and State University The IAQTHEC subsequently reviewed a second version of the EPA draft risk assessment on ETS in public hearings in Washington, D.C. on July 21-22, 1992. For that hearing, the following members were added to the IAQTHEC: Dr. Paul Lioy, Director of the Human~Exposure Division of the Environmental Occupational Health Sciences Institute of New Jersey Dr. Timothy Larson, Professor of Civil Engineering, University of Washington 23. The IAQTHEC is distinct from and is clearly not the Federal Agency Advisory Committee (Committee #1), the Radon Gas - 10 -