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administrative record. While so doing, produced limited evidence, then claimed the weight of the Agency's research evidence demonstrated ETS causes cancer.
Gathering all relevant information, researching, and disseminating findings were subordinate to EPA's demonstrating ETS a Group A carcinogen. EPA's conduct transgressed the general meaning of the Radon Research Act's operative language. Further, to the extent EPA's conduct in this matter entailed interstitial construction of the Act, the court affords no deference to EPA. Congress did not delegate rule making or regulatory authority to EPA under the Act. EPA's conduct of the ETS Risk Assessment frustrated the clear Congressional policy underlying the Radon Research Act. See 131 Cong. Rec. S7035 (May 23, 1985) (purpose of the Act is to provide clear, objective information about indoor air quality).
EPA also failed the Act's procedural requirements. In the Radon Research Act, Congress granted EPA limited research authority along with an obligation to seek advice from a representative committee during such research. Congress intended industry representatives to be at the table and their voices heard during the research process. EPA's authority under the act is contingent upon the Agency hearing and responding to the represented constituents, concerns. The record evidence is overwhelming that IAQC was not the representative body required under the Act. Had EPA reconciled industry objections voiced from a representative body during the research process, the ETS Risk Assessment would very possibly not have been conducted in the same manner nor reached the same conclusions.
Because EPA exceeded its authority under the Radon Research Act and also failed the Act's procedural requirements, the court will direct the entry of judgment in favor of Plaintiffs' motion for summary judgment and vacate Chapters 1 thru 6 of and the Appendices to EPA's Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, EPA/600/6-90/006F (December 1992). To ripen its judgment for purposes of appellate review pursuant to Fed. R. Civ. P. 54(b), the court will make an express determination that there is no just reason for delay. Accordingly, the court need not address Plaintiffs, remaining arguments, Counts II, III, and IV of the Complaint. The court will also grant Plaintiffs' Motion to Supplement the Pleading.
An order and judgment in accordance with this memorandum opinion will be filed contemporaneously herewith.
This the 17th day July 1998.
[Signed] William L. Osteen
United States District Judge
To read the 91 page decision, click here: Decision
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HTML ©1998Gene Borio, Tobacco BBS (212-982-4645). WebPage: http://www.tobacco.org).Original Tobacco BBS material may be reprinted in any non-commercial venue if accompanied by this credit.
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