                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
__________________________________________
                                            )
STYRENE INFORMATION AND                     )
RESEARCH CENTER, INC., and                  )
                                            )
DART CONTAINER CORPORATION,                 )
                                            )
               Plaintiffs,                  )
                                            )
       v.                                   ) Civil Action No. 11-1079 (RBW)
                                            )
KATHLEEN SEBELIUS,                          )
Secretary, United States Department of      )
Health and Human Services, and              )
                                            )
UNITED STATES DEPARTMENT OF                 )
HEALTH AND HUMAN SERVICES,                  )
                                            )
               Defendants, and              )
                                            )
UNITED STEEL, PAPER AND FORESTRY,           )
RUBBER, MANUFACTURING, ENERGY,              )
ALLIED INDUSTRIAL AND SERVICE               )
WORKERS INTERNATIONAL UNION, et al.,        )
                                            )
               Intervenor Defendants.       )
__________________________________________)

                                MEMORANDUM OPINION

       The plaintiffs, Styrene Information and Research Center, Inc. (the “Styrene Center”) and

Dart Container Corporation, bring this action under the Administrative Procedure Act (“APA”),

5 U.S.C. § 704 (2006), challenging the decision of the United States Department of Health and

Human Services (“HHS”) to list the substance styrene in its Twelfth Report on Carcinogens.

Complaint for Declaratory and Injunctive Relief (“Compl.”) ¶ 1. Currently before the Court are

cross-motions for summary judgment filed by the plaintiffs; defendants HHS and Kathleen

Sebelius, the Secretary of HHS (the “Secretary”); and intervenor defendants United Steel, Paper
and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers

International Union, Environmental Defense Fund, and Peter Orris (the “Intervenors”). 1 Upon

careful consideration of the parties’ submissions, 2 the Court concludes for the following reasons

that the defendants’ motions must be granted, and the plaintiffs’ motion must be denied.

                                                I. BACKGROUND

A.         The Report on Carcinogens

           The Public Health Service Act directs the Secretary to “publish a biennial report which

contains . . . a list of all substances . . . which either are known to be carcinogens or may

reasonably be anticipated to be carcinogens.” 42 U.S.C. § 241(b)(4) (2006). This so called

“Report on Carcinogens” is an “informational scientiﬁc and public health document that

identifies and discusses agents, substances, mixtures, or exposure circumstances . . . that may

pose a hazard to human health by virtue of their carcinogenicity.” A.R. at 2467. The Report on

Carcinogens is prepared by the HHS’s National Toxicology Program (“NTP”), which is staffed

by scientists from three HHS components: the National Institutes of Health, the Centers for

Disease Control and Prevention, and the Food and Drug Administration. Fed. Defs.’ Mem. at 3.

           A substance under consideration for listing in the Report undergoes a four step review

process. A.R. at 2472. First, the NTP nominates and selects candidate substances, announcing

the nominees and soliciting public comments through notices in the Federal Register and NTP
1
    The Court will refer to HHS, the Secretary, and the Intervenors collectively as the defendants.
2
  In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: the Administrative Record (“A.R.”); the Plaintiffs’ Memorandum in Support of its Motion for Summary
Judgment (“Pls.’ Mem.”); the Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment and in
Support of Defendants’ Cross-Motion for Summary Judgment (“Fed. Defs.’ Mem.”); the Intervenor-Defendants’
Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment and in Support of Defendants’ and
Intervenor Defendants’ Cross-Motions for Summary Judgment (“Intervenor Defs.’ Mem.”); Styrene Information and
Research Center, Inc.’s Corrected Opposition to Defendants’ and Intervenor-Defendants’ Cross-Motions for
Summary Judgment and Reply to Defendants’ and Intervenor-Defendants’ Oppositions to Plaintiffs’ Motion for
Summary Judgment (“Pls.’ Opp’n”); the Reply in Support of Defendants’ Cross-Motion for Summary Judgment
(“Fed. Defs.’ Reply”); and the Intervenor-Defendants’ Reply in Support of Defendants’ and Intervenor-Defendants’
Cross Motions for Summary Judgment (“Intervenor Defs.’ Reply”).


                                                            2
publications. Id. Second, after the candidate substances are selected, each substance undergoes

a scientific review that entails “(1) preparation of [a] draft background document, (2) review by

an expert panel at a public meeting, and (3) internal review by two independent federal

committees.” Id. Third, the NTP—taking into consideration the listing recommendations of the

expert panel, two other scientific review groups, and public comments—drafts substance profiles

with listing recommendations for each candidate substance. A.R. at 2473. The draft substance

profiles are then peer reviewed by the NTP’s Board of Scientific Counselors, which “prepares

and submits a peer review report to the NTP that describes the nature and scope of its findings

and conclusions concerning the NTP’s draft substance profiles.” Id. Fourth, the NTP responds

to the Board of Scientific Counselors’ peer review report, drafts the next edition of the Report on

Carcinogens, and transmits the final draft of the report to the Secretary for review and approval.

Id. Upon being approved by the Secretary, the Report on Carcinogens is transmitted to Congress

and disseminated to the public through notices in the Federal Register and NTP publications. Id.

        In determining whether a substance is either “known” or “reasonably anticipated” to be a

carcinogen and thus warrants listing in the Report on Carcinogens, the NTP applies the following

criteria:

        Known To Be Human Carcinogen:

               There is sufficient evidence of carcinogenicity from studies in humans,
               which indicates a causal relationship between exposure to the agent,
               substance, or mixture, and human cancer.

        Reasonably Anticipated To Be Human Carcinogen:

               There is limited evidence of carcinogenicity from studies in humans,
               which indicates that causal interpretation is credible, but that alternative
               explanations, such as chance, bias, or confounding factors, could not
               adequately be excluded,

               or



                                                 3
               there is sufficient evidence of carcinogenicity from studies in experimental
               animals, which indicates there is an increased incidence of malignant
               and/or a combination of malignant and benign tumors (1) in multiple
               species or at multiple tissue sites, or (2) by multiple routes of exposure, or
               (3) to an unusual degree with regard to incidence, site, or type of tumor, or
               age at onset,

               or

               there is less than sufficient evidence of carcinogenicity in humans or
               laboratory animals; however, the agent, substance, or mixture belongs to a
               well-defined, structurally related class of substances whose members are
               listed in a previous Report on Carcinogens as either known to be a human
               carcinogen or reasonably anticipated to be a human carcinogen, or there is
               convincing relevant information that the agent acts through mechanisms
               indicating it would likely cause cancer in humans.

       Conclusions regarding carcinogenicity in humans or experimental animals are
       based on scientific judgment, with consideration given to all relevant information.
       Relevant information includes, but is not limited to, dose response, route of
       exposure, chemical structure, metabolism, pharmacokinetics, sensitive sub-
       populations, genetic effects, or other data relating to mechanism of action or
       factors that may be unique to a given substance. For example, there may be
       substances for which there is evidence of carcinogenicity in laboratory animals,
       but there are compelling data indicating that the agent acts through mechanisms
       which do not operate in humans and would therefore not reasonably be
       anticipated to cause cancer in humans.

A.R. at 2468 (footnotes omitted).

B.     The Listing of Styrene in the Twelfth Report on Carcinogens

       On May 19, 2004, the NTP set in motion the above described review process by

nominating twenty-one substances for listing in the Twelfth Report on Carcinogens (the

“Report”). See 69 Fed. Reg. 28,940 (May 19, 2004). Among these candidate substances was

styrene, id. at 28,943, a liquid derived from petroleum and natural gas byproducts that is used to

manufacture a variety of consumer goods, Compl. ¶ 11. The NTP nominated styrene based on

the International Agency for Research of Cancer’s finding “of limited evidence of




                                                 4
carcinogenicity in animals and limited evidence of carcinogenicity in humans” associated with

styrene. 69 Fed. Reg. at 28,943.

       After selecting styrene as a candidate substance, the NTP prepared a 405-page draft

Background Document for the substance, which it released and solicited public comments on in

May 2008. See A.R. at 419; 73 Fed. Reg. 29,139 (May 20, 2008). The draft Background

Document did not opine on whether styrene should be listed in the Report; rather, it surveyed

relevant scientific data on styrene, exploring topics such as human exposure, human cancer

studies, studies of cancer in experimental animals, and toxicity. See A.R. at 443-45.

       In July 2008, the NTP convened a panel of experts (the “Expert Panel”) to peer review

the draft Background Document on styrene and recommend whether the substance should be

listed in the Report. A.R. at 1110. After conducting this review, the Expert Panel recommended

several revisions to the draft Background Document and voted 10-0 that the document, with the

panel’s recommended changes, was “adequate for drawing conclusions about the carcinogenicity

of styrene and for applying the [Report on Carcinogens] listing criteria.” A.R. at 1110-11. The

Expert Panel further recommended, by a vote of 8-2, “that styrene . . . be listed in the [Report] as

reasonably anticipated to be a human carcinogen based on limited evidence of carcinogenicity in

humans and sufficient evidence in animals.” A.R. at 1697. The two members who voted against

the panel’s decision did so because, in their opinion, “styrene should be listed as known to be a

human carcinogen.” Id. The Expert Panel’s majority recommendation was based on the

following considerations:

       (1) evidence of past and present human exposure to styrene in the United States;
       (2) evidence of cancer in styrene-exposed workers; (3) induction of lung tumors
       in mice by styrene by two routes of exposure; (4) the established carcinogenicity
       in animals and genotoxicity of a styrene metabolite, the 7,8-oxide; (5) evidence
       for styrene-related DNA adducts and cytogenetic effects in styrene-exposed
       workers.



                                                 5
Id.

       Following the Expert Panel’s July 2008 meeting, the NTP finalized the Background

Document “based on the peer review recommendations of the expert panel and public comments

received on the draft document.” A.R. at 1194. The NTP also invited public comment on the

Expert Panel’s listing recommendation for styrene through a notice published in the Federal

Register. 73 Fed. Reg. 52,059 (Sept. 8, 2008).

       Next, the NTP convened two panels of scientists to review the body of knowledge

relating to styrene (including the Background Document, the Expert Panel Report, and any

public comments), and recommend a listing status for the substance. A.R. at 2473. The first of

these panels, the Interagency Scientific Review Group, recommended by a vote of 6-2 “that

styrene . . . be listed in the [Report] as Reasonably Anticipated to be a Human Carcinogen based

on limited evidence in humans, sufficient evidence in experimental animals and supporting

mechanistic data.” A.R. at 1766. The two members who voted against the panel’s decision did

so because “they felt styrene should be listed as known to be a human carcinogen because of

evidence in human cancer studies and mechanistic data (DNA adducts and chromosomal

aberrations in humans).” Id. (emphasis added). The second panel, the National Institute of

Environmental Health Sciences/NTP Scientific Review Group, recommended by a vote of 7-1

“that styrene . . . be listed in the [Report] as Reasonably Anticipated to be a Human Carcinogen

based on limited evidence in humans, sufficient evidence in experimental animals and supporting

mechanistic data.” A.R. at 1773. The dissenting member of the panel “did not think the

available evidence in experimental animals and humans [was] sufficiently convincing to list

styrene in” the Report. Id.




                                                 6
        The NTP then prepared a draft Substance Profile and listing recommendation for styrene,

A.R. at 1779, taking into account the recommendations of the Expert Panel, the scientific review

groups, and public comments, A.R. at 2473. It solicited public comments on the draft Substance

Profile in December 2008. 73 Fed. Reg. 78,364 (Dec. 22, 2008).

        In February 2009, the NTP convened another panel of experts, the Board of Scientific

Counselors (the “Board”), to peer review the draft Substance Profile for styrene. See A.R. at

1799, 1814. Unlike the other expert review groups, the Board is not responsible for making a

listing recommendation for candidate substances. A.R. at 2473. Rather, it is charged with

determining “whether the scientific information cited in the draft substance profile for a

candidate substance is technically correct, clearly stated and supports the NTP’s policy decision

regarding its listing in the” Report on Carcinogens, after which it “prepares and submits a peer

review report to the NTP that describes the nature and scope of its findings and conclusions

concerning the NTP’s draft substance profiles.” Id. In the case of styrene, the Board’s findings

and conclusions are set forth in the minutes of its February 2009 meeting. See A.R. at 1868-76,

1883.

        After considering the Board’s peer review comments, the NTP revised and finalized the

Substance Profiles to be listed in the Report. A.R. at 1883. The Secretary then approved the

Report, including its listing of styrene, and released it to the public on June 10, 2011. 76 Fed.

Reg. 36,923 (June 23, 2011). The Report lists styrene as “reasonably anticipated to be a human

carcinogen based on limited evidence of carcinogenicity from studies in humans, sufficient

evidence of carcinogenicity from studies in experimental animals, and supporting data on

mechanisms of carcinogenesis.” A.R. at 2847.




                                                 7
         On the same day the Secretary released the Report, the plaintiffs instituted this lawsuit.

Plaintiff Styrene Center is a trade association whose membership comprises 95% of the North

American styrene industry, and plaintiff Dart Container Corporation is a manufacturer of

styrene-based products. Compl. ¶¶ 2-3. Their complaint challenges HHS’s listing of styrene in

the Report on the grounds that (1) the NTP failed to follow its own procedures in violation of the

APA; and (2) HHS’s actions in creating and reviewing the Report (a) contravened the Public

Health Service Act, and (b) were arbitrary and capricious, not in accordance with law, and

constituted an abuse of discretion, all in violation of the APA. Compl. ¶¶ 70-75. The plaintiffs

further allege that HHS violated the Information Quality Act, 44 U.S.C. § 3516 note (2006), by

constructively denying plaintiff Styrene Center’s request for correction of information. Id. ¶¶

76-77.

         By Minute Order dated June 19, 2012, the Court granted the Intervenors’ motion to

intervene in this action as conceded, based on the parties’ lack of opposition to the motion. See

Local Civ. R. 7(b). The Intervenors consist of a union that represents workers who are exposed

to styrene in the workplace, a non-profit organization that seeks to minimize the health and

environmental risks of chemicals, and a doctor who specializes in occupational medicine. See

ECF No. 42-1 at 5-6.

         The parties have now filed cross-motions for summary judgment.

                                  II. STANDARD OF REVIEW

         “Summary judgment is the proper mechanism for deciding, as a matter of law, whether

an agency action is supported by the administrative record and consistent with the APA standard

of review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010)

(citing Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007), aff’d, 408




                                                   8
F. App’x 383 (D.C. Cir. 2010)); see also Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir.

1977). But due to the limited role of a court in reviewing the administrative record, the typical

summary judgment standards set forth in Federal Rule of Civil Procedure 56 are not applicable.

Stuttering, 498 F. Supp. 2d at 207. Rather, “[u]nder the APA, it is the role of the agency to

resolve factual issues to arrive at a decision that is supported by the administrative record,

whereas ‘the function of the district court is to determine whether or not as a matter of law the

evidence in the administrative record permitted the agency to make the decision it did.’” Id.

(quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). In other words,

“when a party seeks review of agency action under the APA, the district judge sits as an

appellate tribunal,” and “[t]he ‘entire case’ on review is a question of law.” Am. Bioscience, Inc.

v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote and citations omitted).

                                          III. ANALYSIS

A.      The Plaintiffs’ Challenge to the NTP’s Listing Criteria

        The Court first turns to the plaintiffs’ assertion that the criteria applied by the NTP in

listing styrene (“the Listing Criteria”) “were contrary to the Congressional mandate”—as stated

in the Public Health Service Act and that statute’s legislative history—“that a substance be

‘reasonably anticipated to cause cancer in humans’ and not merely ‘suspected’ of doing so.”

Pls.’ Mem. at 55-56. Although not explicitly framed as such, this claim presents a facial

challenge to the Listing Criteria, insofar as the plaintiffs are contending that the criteria violate

the Public Health Service Act as applied to any substance, not just styrene. See Intervenor Defs.’

Mem. at 15-16 (characterizing the plaintiffs’ claim as a facial challenge to the Listing Criteria);

Pls.’ Opp’n at 23-25 (not disputing this characterization). The Secretary and Intervenors move

for summary judgment as to this claim on several grounds, which the Court will address in turn.




                                                   9
         1.       Timeliness

         The Intervenors argue that the plaintiffs’ challenge to the Listing Criteria is time-barred.

Intervenor Defs.’ Mem. at 15. “Unless another statute prescribes otherwise, a suit challenging

final agency action pursuant to section 704 [of the APA] must be commenced within six years

after the right of action first accrues.” Harris v. FAA, 353 F.3d 1006, 1009 (D.C. Cir. 2004)

(citing 28 U.S.C. § 2401(a)). And a “right of action” under the APA “first accrues on the date of

the final agency action.” Id. (citation omitted). This limitation provision constitutes “‘a

jurisdictional condition attached to the government’s waiver of sovereign immunity.’” P & V

Enterps. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008) (citation omitted).

         Construing the Listing Criteria as an HHS regulation, the Intervenors contend that the

plaintiffs’ claim accrued when HHS first promulgated the Listing Criteria in 1996. 3 Intervenor

Defs.’ Mem. at 15-16. Because the plaintiffs filed suit in 2011, more than fifteen years after the

Listing Criteria were promulgated and well outside of the APA’s six-year limitation period, the

Intervenors assert that the plaintiffs’ claim is time-barred. Id. at 16. The plaintiffs respond that

their claim is timely “[b]ecause the [L]isting [C]riteria were first applied to styrene just days

before suit was filed.” Pls.’ Opp’n at 25. The Court agrees with the plaintiffs.

         A “court will entertain challenges beyond a statutory time limit to the authority of an

agency to promulgate a regulation . . . following enforcement of the disputed regulation.”

Cellular Telecomms. & Internet Ass’n v. FCC, 330 F.3d 502, 508 (D.C. Cir. 2003); see also P &

V Enterps., 516 F.3d at 1026 (“[O]ur conclusion that P & V’s facial challenge to the 1986 rule is

untimely does not immunize the rule from all challenge: If the [agency] applies the rule to P &

3
 The plaintiffs also treat the Listing Criteria as a regulation. See Pls.’ Opp’n at 23 (characterizing the plaintiffs’
attack on the Listing Criteria as a challenge “‘to the authority of an agency to promulgate a regulation.’” (emphasis
added and citation omitted)). This characterization of the Listing Criteria is consistent with Circuit precedent. See
Tozzi v. HHS, 271 F.3d 301, 311 (D.C. Cir. 2001) (treating the Listing Criteria as an “HHS regulation,” in case
where the petitioner did not argue otherwise).


                                                          10
V’s property, . . . then P & V would be able to challenge the rule notwithstanding that the

limitations period has run.”); NLRB Union v. FLRA, 834 F.2d 191, 195-97 (D.C. Cir. 1987)

(“An agency’s regulations may be attacked . . . once the statutory limitations period has expired”

when “a party who possesses standing . . . challenge[s] regulations directly on the ground that the

issuing agency acted in excess of its statutory authority in promulgating them.”). Underlying this

principle is the rationale that “administrative rules and regulations are capable of continuing

application,” and thus “limiting the right of review of the underlying rule would effectively deny

many parties ultimately affected by a rule an opportunity to question its validity.” NLRB Union,

834 F.2d at 196 (citation omitted).

        Here, it is undisputed that HHS first listed styrene in the Report on Carcinogens in June

2011. Nor is there any quarrel that the plaintiffs—a trade association representing the styrene

industry and a manufacturer of styrene-based products—have been adversely affected by this

application of the Listing Criteria to styrene. Under these circumstances, the plaintiffs may

challenge the legality of the Listing Criteria, “notwithstanding that the limitations period has

run.” P & V Enterps., 516 F.3d at 1026. The Court therefore has jurisdiction to consider the

plaintiffs’ challenge to the Listing Criteria.

        2.      Exhaustion / Waiver

        The Intervenors next assert that the plaintiffs failed to exhaust available administrative

remedies for their claim challenging the Listing Criteria. Intervenor Defs.’ Mem. at 16. “‘A

party must first raise an issue with an agency before seeking judicial review.’” Tesoro Ref. &

Mktg. Co. v. FERC, 552 F.3d 868, 872 (D.C. Cir. 2009) (citation omitted). This doctrine, which

courts have interchangeably referred to as “issue exhaustion” and “issue waiver,” recognizes that

“‘[s]imple fairness . . . requires as a general rule that courts should not topple over administrative




                                                 11
decisions unless the administrative body . . . has erred against objection made at the time

appropriate under its practice.’” Advocates for Highway & Auto Safety v. Fed. Motor Carrier

Safety Admin., 429 F.3d 1136, 1149-50 (D.C. Cir. 2005) (citation omitted). The doctrine applies

both in the contexts of agency adjudication and rulemaking. See id. In the rulemaking context,

the District of Columbia Circuit has provided the following articulation of the rule: “a party will

normally forfeit an opportunity to challenge an agency rulemaking on a ground that was not first

presented to the agency for its initial consideration.” Id. at 1150; see also Nat’l Mining Ass’n v.

Dep’t of Labor, 292 F.3d 849, 874 (D.C. Cir. 2002) (declining to consider challenge to

regulation because the petitioner “failed to raise it during the notice-and-comment period”); Nat’l

Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002) (“It is well established that issues not

raised in comments before the agency are waived and this Court will not consider them.”).

       The parties do not contest that the plaintiffs were required to raise any issues concerning

the Listing Criteria with HHS prior to seeking judicial review; instead, their disagreement

concerns whether the plaintiffs did, in fact, raise their challenge to the Listing Criteria at the

administrative level. See Intervenor Defs.’ Mem. at 16-17; Pls.’ Opp’n at 25-26. The record

reveals that they did not.

       Between 2004 and 2008, the NTP provided the public with four opportunities to

comment upon the process of preparing the Report and the potential listing of styrene in the

Report. See 69 Fed. Reg. 28,940 (May 19, 2004); 73 Fed. Reg. 29,139 (May 20, 2008); 73 Fed.

Reg. 52,059 (Sept. 8, 2008); 73 Fed. Reg. 78,364 (Dec. 22, 2008). Although the plaintiffs

submitted several comments in response to these invitations, at no point did they raise the

argument currently being advanced—that the Listing Criteria violate the Public Health Service

Act because they permit a substance to be listed as “reasonably anticipated to be a human




                                                  12
carcinogen” based on a “mere suspicion” of carcinogenic association. Pls.’ Opp’n at 30. Indeed,

the plaintiffs’ arguments at the administrative level were directed not at the validity of the

Listing Criteria themselves, but at the manner in which the NTP was applying those criteria. See

A.R. at 15254 (“[O]ur reading of the legislative history of the [Report on Carcinogens] reveals

the need for a more stringent interpretation of the criteria associated with the category

‘reasonably anticipated to be a human carcinogen’ than has been recommended by the staff in

their review of styrene.”); see also A.R. at 2184-86; Pls.’ Opp’n, Appendix (Dec. 20, 2010

Letter). In fact, the plaintiffs previously made representations to the NTP and even this Court

indicating their general approval of the Listing Criteria. See A.R. at 15254 (“[A] change in the

way in which [the] criteria are interpreted and applied, consistent with the legislative history, is

what [the Styrene Center] is suggesting, rather than a change in the criteria.” (emphasis added));

Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for a Preliminary

Injunction, ECF No. 3-1 at 12 (“The plain language of HHS’ policy correctly interpreted

Congress’ mandate, but HHS failed to follow that policy.” (emphasis added)). Only now, in

their summary judgment brief, do the plaintiffs directly challenge the Listing Criteria. This

comes too late. Accordingly, because the plaintiffs failed to raise their claim challenging the

lawfulness of the Listing Criteria with HHS prior to instituting this lawsuit, that claim is waived.

B.     The Plaintiffs’ Procedural Challenges

       The plaintiffs argue that the Report was issued “without observance of procedure

required by law,” 5 U.S.C. § 706(2)(D), in violation of the APA for several reasons. As

explained below, the Court finds none of the plaintiffs’ procedural challenges persuasive.




                                                 13
        1.       The Expert Panel’s Alleged “Re-analysis” of Peer-Reviewed Data

        The plaintiffs first argue that the Expert Panel 4 improperly re-analyzed data found in

publicly available, peer-reviewed studies, rather than simply reporting that data without

alteration. See Pls.’ Mem. at 38-42. This, in the plaintiffs’ view, violated two procedural

guidelines set forth by the NTP in the Report: one which states that certain data in the

Background Document “must come from publicly available, peer-reviewed sources,” A.R. at

2472, and another which directs the Expert Panel “to peer review the background document,” not

conduct a new analysis, A.R. at 2473. The defendants assert that this claim is unreviewable

because it challenges “agency action . . . committed to agency discretion by law.” 5 U.S.C. §

701(a)(2); see Fed. Defs.’ Mem. at 28-29; Intervenor Defs.’ Mem. at 33-34. The plaintiffs do not

respond to this argument in their opposition brief, so it is conceded. See Lewis v. Dist. of

Columbia No. 10-5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011) (per curiam) (“‘It is

well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion

and addresses only certain arguments raised by the defendant, a court may treat those arguments

that the plaintiff failed to address as conceded.’” (citation omitted)).

        However, even if the Court were to address the merits of the plaintiffs’ claim, it would

agree with the defendants’ position. “[T]he APA explicitly excludes from judicial review those

agency actions that are ‘committed to agency discretion by law.’” Sierra Club v. Jackson, 648

F.3d 848, 855 (D.C. Cir. 2011) (quoting 5 U.S.C. § 701(a)). This exclusion applies both “in

those rare instances where statutes are drawn in such broad terms that in a given case there is no

law to apply,” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (quotation


4
 Recall that the Expert Panel was the first of the scientific panels involved in the listing review process; it was
charged with peer reviewing the draft Background Document and making a listing recommendation for styrene. See
supra at 5.



                                                        14
marks and citations omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99

(1979), and when “the statute is drawn so that a court would have no meaningful standard

against which to judge the agency’s exercise of discretion,” Heckler v. Chaney, 470 U.S. 821,

830 (1985). “Agency actions in these circumstances are unreviewable because ‘the courts have

no legal norms pursuant to which to evaluate the challenged action, and thus no concrete

limitations to impose on the agency’s exercise of discretion.’” Sierra Club, 648 F.3d at 855

(citation omitted). “To determine whether a matter has been committed to agency discretion,

[courts] ‘consider both the nature of the administrative action at issue and the language and

structure of the statute that supplies the applicable legal standards for reviewing that action.’” Id.

(citation omitted). “‘[J]udicially manageable standards may be found in formal and informal

policy statements and regulations as well as in statutes.’” Sec’y of Labor v. Twentymile Coal

Co., 456 F.3d 151, 158-59 (D.C. Cir. 2006) (citation omitted). If, after reviewing all these

sources, no “‘judicially manageable standards’ are discernable, meaningful judicial review is

impossible, and agency action is shielded from the scrutiny of the courts.” Drake v. FAA, 291

F.3d 59, 70 (D.C. Cir. 2002) (quoting Chaney, 470 U.S. at 830).

       The plaintiffs have not identified, nor does the Court discern, any “judicially manageable

standards” against which the Court could evaluate the Expert Panel’s peer review process. The

Public Health Service Act does not establish any particular procedures that HHS must follow in

preparing the Report on Carcinogens. See 42 U.S.C. § 241(b)(4). And the HHS has

promulgated no regulation establishing legal criteria for the Expert Panel’s peer review process.

The only “standards” referenced by the plaintiffs are the Report’s statements that certain data in

the Background Document “must come from publicly available, peer-reviewed sources,” A.R. at

2472, and that the Expert Panel is “to peer review the background document,” A.R. at 2473. See




                                                 15
Pls.’ Mem. at 38-41. But these statements do not provide sufficient criteria for the Court to

review the plaintiffs’ claim; in fact, they raise more questions than they answer. What does it

mean, for instance, for the Expert Panel to “peer review” a document, and how does the Court

determine whether the Expert Panel exceeded the permissible bounds of that review in this case?

No legal norms are available to guide the Court’s consideration of these questions. As a result,

the Court cannot meaningfully review the plaintiffs’ claim that the Expert Panel conducted an

improper re-analysis of peer-reviewed studies.

           The plaintiffs suggest (but do not explicitly argue) that the Information Quality Act

(“IQA”), 44 U.S.C. § 3516 note, and guidelines issued by the Office of Management and Budget

(“OMB”) to implement the IQA, provide standards governing the Expert Panel’s peer review

process. 5 See Pls.’ Mem. at 17 & n.4; Pls.’ Opp’n at 18-19. However, as the defendants point

out, several courts have held that “[n]either the IQA or the OMB Guidelines provide judicially

manageable standards” because they vest agencies with unfettered discretion to determine “when

correction of information contained in informal agency statements is warranted.” Salt Inst. v.

Thompson, 345 F. Supp. 2d 589, 602 (E.D. Va. 2004), aff’d sub nom. on other grounds, Salt Inst.

v. Leavitt, 440 F.3d 156 (4th Cir. 2006); accord Family Farm Alliance v. Salazar, 749 F. Supp.

2d 1083, 1095 (E.D. Cal. 2010) (holding that “[t]he IQA itself contains no standards concerning

peer review, committing such matters to agency discretion,” and that “[t]he OMB IQA Bulletin

for Peer Review specifically disclaims that its contents create any enforceable rights, thereby

preserving the agency’s discretion to interpret and apply the OMB IQA Bulletin for Peer

5
    The IQA directs the Director of the OMB to issue guidelines that

           provide policy and procedural guidance to Federal agencies for ensuring and maximizing the
           quality, objectivity, utility, and integrity of information (including statistical information)
           disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of
           title 44, United States Code, commonly referred to as the Paperwork Reduction Act.

44 U.S.C. § 3516 note (a).


                                                          16
Review”). The plaintiffs offer nothing to rebut this argument, so it is conceded. See Lewis,

2011 WL 321711, at *1. In any event, even without the plaintiffs’ concession, the Court would

adopt the persuasive reasoning of the foregoing caselaw and conclude that the IQA and OMB

guidelines do not provide judicially manageable standards.

       Because the Court has “no law to apply” with respect to the plaintiffs’ claim challenging

the Expert Panel’s purported re-analysis of peer-reviewed data, judicial review of this claim is

precluded under 5 U.S.C. § 701(a).

       2.      The NTP’s Alleged Premature Finalization of the Background Document

       The plaintiffs next contend that the Report was issued “without observance of procedure

required by law,” 5 U.S.C. § 706(2)(D), because the NTP finalized the Background Document

before the public comment period expired for a separate document issued by the Expert Panel.

See Pls.’ Mem. at 41-42. As a threshold matter, it is unclear what Expert Panel document the

plaintiffs are referencing because, much to the Court’s confusion, they inexplicably change

positions in their briefs. In their opening brief, the plaintiffs argue that the NTP erred in

finalizing the Background Document before the public comment period closed for the Expert

Panel’s listing recommendation (Part B of the panel’s report). See id. at 41-42 (citing 73 Fed.

Reg. 52,059 (Sept. 8, 2008) (notice soliciting public comments on the listing recommendation)).

But then, in their opposition brief, the plaintiffs assert that the NTP erred in finalizing the

Background Document before the public comment period closed for the Expert Panel’s peer

review comments (Part A of the panel’s report). See Pls.’ Opp’n at 19-20. Since the plaintiffs’

opposition brief was filed later, the Court will construe that brief as stating their current position.

       In claiming that the NTP prematurely finalized the Background Document, the plaintiffs

do not assert that the NTP violated the notice and comment provisions of the APA or any other




                                                  17
statute; they instead argue that the NTP violated its own procedures as set forth in the Report.

See Pls.’ Opp’n at 19-20. Specifically, they rely upon the following passage from the Report:

“Following the expert panel meeting, NTP staff reviews and considers the expert panel’s peer

review comments and any public comments as it finalizes the background document on the

candidate substance.” A.R. at 2473 (emphasis added). According to the plaintiffs, the “fairest

reading” of this review process is that (1) the NTP issues the draft Background Document; (2)

the NTP convenes the Expert Panel and requests public comments, first on the draft Background

Document and then on the Expert Panel’s peer review comments; and (3) based upon the public

comments on both of these documents, the NTP finalizes the Background Document. Pls.’

Opp’n at 20.

        The plaintiffs’ argument is not persuasive. Admittedly, the language they quote from the

Report concerning the NTP’s consideration of “any public comments” during its finalization of

the Background Document is ambiguous—it does not clarify what particular set of public

comments it is referring to. But when considered in context, the Court finds that language refers

to public comments on the draft Background Document, not the Expert Panel’s peer review

comments. This reading makes the most sense because the NTP never even solicited public

comments on the Expert Panel’s peer review comments. Thus, at the time the NTP finalized the

Background Document, there were no public comments on the Expert Panel’s peer review

comments available for the NTP to review. The NTP did, by contrast, solicit public comments

on the draft Background Document. See 73 Fed. Reg. 29,139 (May 20, 2008). So the “any

public comments” language most plausibly refers to those comments that the NTP had actually

solicited—those concerning the draft Background Document. 6


6
 Insofar as the plaintiffs may be arguing that the “any public comments” language required the NTP to conduct
another round of public comments specifically for the Expert Panel’s peer review comments, this argument likewise


                                                       18
        Based on the representations made in their opening brief, the plaintiffs’ real problem, it

seems, is with the NTP’s decision to stagger the public comment periods for the draft

Background Document and the Expert Panel’s listing recommendation, rather than have those

periods coincide. See Pls.’ Mem. at 41-42. While the plaintiffs may question the wisdom of this

approach, they have not shown that the NTP failed to observe a “procedure required by law.” 5

U.S.C. § 706(2)(D) (emphasis added). Accordingly, the Court rejects the plaintiffs’ claim that

the NTP prematurely finalized the Background Document.

C.      The Plaintiffs’ IQA Claims

        In their complaint, the plaintiffs allege that HHS violated the IQA by constructively

denying the Styrene Center’s request for information correction. Compl. ¶ 77. The plaintiffs

have not, however, raised any argument concerning this claim in their summary judgment briefs.

The Court will therefore deem this claim abandoned. See Grenier v. Cyanamid Plastics, Inc., 70

F.3d 667, 678 (1st Cir. 1995) (“Even an issue raised in the complaint but ignored at summary

judgment may be deemed waived.”); Noble Energy, Inc. v. Salazar, 691 F. Supp. 2d 14, 23 n.6

(D.D.C. 2010) (same).

        The plaintiffs also assert that HHS’s listing of styrene violated the IQA’s requirement

that information disseminated by federal agencies be both objective and useful. See Pls.’ Mem.

at 54-55, 34. Perhaps recognizing the cases holding that the IQA “creates no legal rights in any

third parties,” e.g., Salt Inst., 440 F.3d at 159, the plaintiffs stress that they “do not seek to

enforce the IQA,” but rather assert that the “NTP’s failure to comply with the IQA is further

evidence that the [Report] is arbitrary, capricious or otherwise not in accordance with the law,”

Pls.’ Mem. at 55. As explained above, however, the plaintiffs have conceded the defendants’


fails. Reaching this conclusion would require the Court to make a sweeping and unjustified inference, and there is
no indication in the record that the NTP contemplated such a review process.


                                                        19
argument that the IQA provides no judicially manageable standards sufficient to enable judicial

review, and that APA claims challenging noncompliance with the IQA are consequently

unreviewable pursuant to 5 U.S.C. § 701(a). See supra at 16-17. This concession is fatal to the

plaintiffs’ hybrid APA-IQA claim.

D.       The Plaintiffs’ Arbitrary and Capricious Claim

         The plaintiffs also assert that HHS’s listing of styrene in the Report was arbitrary and

capricious in violation of the APA. Before reaching the merits of this claim, the Court must

address a preliminary matter concerning the scope of its review.

         1.       Scope of the Court’s Review

         The plaintiffs contend that the listing of styrene was arbitrary and capricious because the

Secretary’s decision was based on misleading and incomplete information contained in two

memoranda from the Director of the NTP, Dr. Linda Birnbaum (“Birnbaum Memoranda”). 7

Pls.’ Mem. at 42-43. The defendants respond that this argument improperly focuses on the

mental processes of HHS decisionmakers rather than the agency’s stated reasons for its decision.

See Fed. Defs.’ Mem. at 44-46; Intervenor Defs.’ Mem. at 24-26. The Court agrees with the

defendants.

         “It is a widely accepted principle of administrative law that the courts base their review

of an agency’s actions on the materials that were before the agency at the time its decision was

made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997). This review generally must

be based on the “whole record”—no more or no less. See Overton Park, 401 U.S. at 420

(“[R]eview is to be based on the full administrative record that was before the [agency] at the

time [it] made [its] decision.” (emphasis added)); Walter O. Boswell Mem’l Hosp. v. Heckler,

7
  The plaintiffs also contend that the Secretary was misled by a letter from Dr. Christopher Portier, Director of the
Agency for Toxic Substances and Disease Registry, but they offer no argument as to why Dr. Portier’s
representations were misleading. See Pls.’ Mem. at 42-53.


                                                          20
749 F.2d 788, 792 (D.C. Cir. 1984) (“If a court is to review an agency’s action fairly, it should

have before it neither more nor less information than did the agency when it made its decision.”).

There is no dispute here that the Birnbaum Memoranda were “before the agency” at the time of

its decision; indeed, HHS acknowledged as much by including the memoranda as part of the

administrative record. See A.R. at 2301b-g, 2301h-l. The memoranda are therefore within the

universe of documents that the Court may consider in adjudicating the plaintiffs’ APA claim.

        But that does not mean that the Birnbaum Memoranda will be determinative of the

Court’s analysis. On the contrary, where, as here, there is a “contemporaneous explanation of

the agency decision[,] . . . [t]he validity of the [agency’s] action must . . . stand or fall on the

propriety of that finding, judged, of course, by the appropriate standard of review.” Camp v.

Pitts, 411 U.S. 138, 143 (1973) (emphasis added). If the agency’s contemporaneous explanation

is “not sustainable on the administrative record made, then the [agency’s] decision must be

vacated and the matter remanded to [it] for further consideration.” Id. And because “the

reasonableness of the agency’s action is judged in accordance with its stated reasons” under the

arbitrary and capricious standard of review, “the actual subjective motivation of agency

decisionmakers is immaterial as a matter of law—unless there is a showing of bad faith or

improper behavior.” In re Subpoena Duces Tecum, 156 F.3d 1279, 1279 (D.C. Cir. 1998)

(emphasis added); see also Overton Park, 401 U.S. at 420 (“[W]here there are administrative

findings that were made at the same time as the decision,” any “inquiry into the mental processes

of administrative decisionmakers is usually to be avoided,” absent a “strong showing of bad faith

or improper behavior.”).

        The “contemporaneous explanation” for the Secretary’s decision to list styrene in the

Report is found in the Report itself, specifically in the substance profile for styrene, which




                                                   21
includes a summary of the evidence for styrene’s carcinogenicity and citations to supporting

data. See A.R. at 2470, 2847-55. Insofar as this document sets forth the stated reasons for the

Secretary’s decision to list styrene, it must be the focus of the Court’s review, not the Birnbaum

Memoranda.

        In resisting this conclusion, the plaintiffs argue that the record shows that the Birnbaum

Memoranda were prepared at the Secretary’s request, and that the Report cites several of the

studies discussed in the memoranda. See Pls.’ Opp’n at 16. According to the plaintiffs, these

factors suggest that the Secretary relied upon the Birnbaum Memoranda in deciding to list

styrene in the Report, thus making the accuracy of the memoranda relevant to their APA

challenge. Id. The problem with this argument is that the Report does not expressly reference

the Birnbaum Memoranda, so the plaintiffs are effectively asking the Court to infer what

documents the Secretary relied upon and the extent to which she relied on those documents in

deciding to list styrene. Making this assessment would require the Court to speculate as to the

Secretary’s mental processes and her subjective motivations for the listing decision, which is

forbidden by bedrock principles of administrative law absent a showing of bad faith or improper

behavior. 8 See Overton Park, 401 U.S. at 420; In re Subpoena Duces Tecum, 156 F.3d at 1279.

The plaintiffs have made no such showing here.

        The Court’s conclusion is consistent with the case upon which the plaintiffs chiefly rely,

National Small Shipments Traffic Conference, Inc. v. ICC, 725 F.2d 1442 (D.C. Cir. 1984).

That case arose in the context of informal rulemaking. Id. at 1451. The petitioners claimed that

staff at the Interstate Commerce Commission had improperly concealed from agency


8
  The Court’s conclusion might be different if the Secretary had expressly relied on analyses set forth in the
Birnbaum Memoranda in support of the decision to list styrene. In that instance, the Court would not have to
speculate about what role, if any, the memoranda played in the agency’s decision because the memoranda would be
incorporated by reference in the Secretary’s final decision.


                                                      22
decisionmakers negative public comments concerning a study relevant to the rulemaking at

issue. Id. at 1450. In addressing the legal consequences of this alleged conduct, the Circuit

stated:

          Under existing law, an agency decisionmaking body such as the Commission may
          delegate detailed consideration of the administrative record to its subordinates
          while retaining the final power of decision for itself. Rather than wade through
          the entire record personally, then, members of the body are free to rely on
          summaries prepared by agency staff. Because of the strong presumption of
          regularity in administrative proceedings, reviewing courts will not normally
          entertain procedural challenges that members of the body inadequately considered
          the issues before reaching a final decision, or that staff reports on which the body
          relied imperfectly summarized the record under review.

          At some point, however, staff-prepared synopses may so distort the record that an
          agency decisionmaking body can no longer rely on them in meeting its
          obligations under the law. More particularly, in informal rulemaking employing
          notice-and-comment procedures, dependence on severely skewed staff summaries
          may breach the decisionmaker’s statutory duty to accord “consideration” to
          relevant comments submitted for the record by interested parties. See 5 U.S.C. §
          553(c) (1982). Certainly, if subordinates systematically eliminated from their
          reports all mention of record comments adverse to the agency’s final action, the
          consideration requirement would not be satisfied unless the decisionmakers took
          independent steps to familiarize themselves with withheld portions of the record.

Id. at 1450-51 (emphasis added) (footnotes and some internal citations omitted). The court

ultimately rejected the petitioners’ procedural challenge because the record revealed that the

“Commission members were thoroughly familiar with adverse comments in the rulemaking

record,” and, even assuming that they were not, the petitioners had “adduced no evidence

suggesting bad faith or improper behavior on the part of ICC personnel.” Id. at 1451-52.

          Relying on the language from National Small Shipments emphasized above, the plaintiffs

assert that the Birnbaum Memoranda were so misleading that they “distorted the record,” such

that the Secretary could not rely on them in discharging her statutory duties. Pls.’ Opp’n at 15.

Although the plaintiffs acknowledge that National Small Shipments arose in a different

procedural context (i.e., informal rulemaking employing notice and comment procedures under §



                                                  23
553(c)) than this case, they contend that the court’s rationale is equally applicable here because

“reliance . . . on a skewed summary that fundamentally distorts the record is arbitrary, capricious

and contrary to law.” Id. at 15 n.8.

        National Small Shipments does not help the plaintiffs for several reasons. First, despite

the plaintiffs’ argument to the contrary, it is not clear that the rationale of that decision applies

outside the context of informal rulemaking under § 553(c). At most, the Circuit’s analysis

indicates that an agency’s reliance on inaccurate summaries of public comments may violate §

553(c), which expressly directs agencies to “consider[]” public comments before adopting a rule.

No similarly explicit statutory directive applies in the present context, and the plaintiffs present

no basis for extending the Circuit’s rationale to the facts of this case. Second, even assuming

National Small Shipments applies in this context, that decision makes clear that courts should not

entertain “procedural challenges that members of the body inadequately considered the issues

before reaching a final decision, or that staff reports on which the body relied imperfectly

summarized the record under review” absent “evidence of bad faith or other improper behavior.”

Id. at 1450 & n.11 (internal citations omitted); see also id. at 1452 (“Because [the petitioners]

have adduced no evidence suggesting bad faith or improper behavior on the part of ICC

personnel, petitioners have failed to establish their final procedural challenge.”). As previously

noted, the plaintiffs have offered no such evidence here. Finally, for the plaintiffs to prevail even

under their reading of National Small Shipments, they would have to show that the Secretary

relied on the Birnbaum Memoranda in deciding to list styrene. See id. at 1450-51 (“[S]taff-

prepared synopses may so distort the record that an agency decisionmaking body can no longer

rely on them in meeting its obligations under the law.” (emphasis added)). As discussed above,

the plaintiffs have failed to show such reliance in this case, and instead invite the Court to




                                                  24
undertake the impermissible task of speculating about the unstated bases for the Secretary’s

decision—an invitation the Court must decline.

       For all of these reasons, the Court concludes that the plaintiffs’ singular emphasis on the

Birnbaum Memoranda is misguided, and that the focus of the Court’s review must be the

contemporaneous explanation for the Secretary’s listing decision: the substance profile for

styrene.

       2.      Whether the Listing of Styrene was Arbitrary and Capricious

       Having framed the proper scope of its review, the Court finally turns to the question

whether the Secretary acted arbitrarily and capriciously in listing styrene in the Report. “The

‘arbitrary and capricious’ standard of review as set forth in the APA is highly deferential,” and

the Court must “presume the validity of agency action.” Am. Horse Prot. Ass’n v. Yeutter, 917

F.2d 594, 596 (D.C. Cir. 1990). Although the “court is not to substitute its judgment for that of

the agency[,] . . . the agency must examine the relevant data and articulate a satisfactory

explanation for its action including a rational connection between the facts found and the choice

made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(citations and quotation marks omitted). And where, as here, a court is reviewing an agency’s

evaluation of “‘scientific data within its technical expertise,’” the arbitrary and capricious

standard of review is “‘extreme[ly] deferential.’” Nuclear Energy Inst., Inc. v. EPA, 373 F.3d

1251, 1289 (D.C. Cir. 2004) (citation omitted). This is because courts “review scientific

judgments of the agency ‘not as the chemist, biologist, or statistician that we are qualified neither

by training nor experience to be, but as a reviewing court exercising our narrowly defined duty




                                                 25
of holding agencies to certain minimal standards of rationality.’” 9 Troy Corp. v. Browner, 120

F.3d 277, 283 (D.C. Cir. 1997) (citation omitted).

         The Secretary’s stated reasons for listing styrene in the Report—as set forth in styrene’s

substance profile—more than satisfy these “minimal standards of rationality.” The Report lists

styrene as “reasonably anticipated to be a human carcinogen based on limited evidence of

carcinogenicity from studies in humans, sufficient evidence of carcinogenicity from studies in

experimental animals, and supporting data on mechanisms of carcinogenesis.” A.R. at 2847

(emphasis omitted). Under the Listing Criteria, this finding justifies listing styrene as

reasonably anticipated to be a human carcinogen on two, independent grounds: “limited

evidence” of carcinogenicity in humans, and “sufficient evidence” of carcinogenicity in animals.

See A.R. at 2468. As to this first ground, the NTP based its finding on “studies of workers

exposed to styrene that showed (1) increased mortality from or incidence of cancer of the

lymphohematopoietic system and (2) increased levels of DNA adducts and genetic damage in

lymphocytes from exposed workers.” A.R. at 2847. As for the second ground, the Report relies

on studies in which “[s]tyrene caused lung tumors in several strains of mice and by two different

routes of exposure.” A.R. at 2849. The Report also provides a detailed discussion of

mechanistic data in support of the decision to list styrene. See A.R. at 2849-50.

         The plaintiffs have taken a scattershot approach in attacking the Secretary’s listing

decision, with little discussion of the actual justification for the decision set forth in the substance

profile for styrene. Insofar as the plaintiffs do attack that document, though, their arguments fall



9
  The plaintiffs assert, for the first time in their opposition brief and without citing any case authority, that HHS’s
listing of styrene is entitled to no deference because (1) the recommendations of the scientific review panels were
not binding on HHS; (2) the listing process is biased toward approval; and (3) the scientific review was fractured
and limited. See Pls.’ Opp’n at 2-7. Setting aside that these arguments were likely waived since they were not first
presented to the agency, see Advocates for Highway & Auto Safety, 429 F.3d at 1149-50, none of the arguments
present legal grounds for withholding deference to HHS’s scientific judgments.


                                                          26
flat. For instance, the plaintiffs contend that the substance profile for styrene misconstrues a

2006 study of men employed in the synthetic rubber industry conducted by Dr. Elizabeth Delzell

and others (“Delzell Study”) as supporting the proposition that humans exposed to styrene face

an increased risk of non-Hodgkin’s lymphoma. Pls.’ Opp’n at 10; see A.R. at 5088. Yet,

contrary to the plaintiffs’ assertion, the Delzell Study’s abstract explicitly states that “[s]tyrene”

was “associated positively with NHL [non-Hodgkin’s lymphoma].” A.R. at 5088. Consistent

with this finding, the Report cites the Delzell Study along with two other studies in observing

that “[i]ncreased risks for leukemia, lymphoma, or all lymphohematopoietic cancer were found

among styrene-exposed workers in both the reinforced-plastics and styrene-butadiene rubber

industries.” A.R. at 2847. The Court does not discern, nor do the plaintiffs explain, how this

statement misconstrues the Delzell Study. And even if it did, that misconstruction would not be

fatal to the Secretary’s listing decision because the substance profile cites several other studies

(which the plaintiffs do not address) showing “[e]levated risks of lymphohematopoietic cancer”

among workers exposed to styrene. See A.R. at 2847-49. The plaintiffs thus have not shown

that the Report’s finding of “limited evidence for the carcinogenicity of styrene in humans,” A.R.

at 2847, was arbitrary and capricious. Because this provides an independently sufficient basis to

list styrene in the Report under the Listing Criteria, the Secretary’s listing decision can be upheld

on this ground alone. See Casino Airlines, Inc. v. Nat’l Transp. Safety Bd., 439 F.3d 715, 717

(D.C. Cir. 2006) (“We have consistently held that ‘[w]hen an agency relies on multiple grounds

for its decision, . . . we may . . . sustain the decision as long as one is valid and the agency would

clearly have acted on that ground even if the other were unavailable.’” (citation omitted)).

       The plaintiffs further assert that HHS’s application of the Listing Criteria was arbitrary

and capricious because the scientists who participated in the Expert Panel and the Board of




                                                  27
Scientific Counselors each “relied on the data in his or her field of expertise in evaluating

styrene” (i.e., epidemiologists analyzed the human data and animal pathologists analyzed the

animal data), and there consequently was “no true consensus” on the ultimate decision to list

styrene. Pls.’ Opp’n at 32, 4-5. But there is nothing arbitrary about having experts review only

the data that they are qualified to analyze. And although the plaintiffs claim this process led to a

lack of consensus regarding the ultimate listing decision, that argument overlooks the bifurcated

nature of the Listing Criteria, which allows listing based on either “limited evidence” of

carcinogenicity in humans or “sufficient evidence” of carcinogenicity in animals. See A.R. at

2468. Given these criteria, it was not arbitrary and capricious for HHS to have different

scientists reviewing different sets of data during the listing review process.

           In short, the Report provides a rational explanation for the Secretary’s decision to list

styrene as a reasonably anticipated human carcinogen, and this explanation is adequately

supported by the administrative record. The APA requires no more. Accordingly, the plaintiffs’

arbitrary and capricious challenge fails.

                                             IV. CONCLUSION

           For the foregoing reasons, the defendants’ cross-motions for summary judgment are

granted, and the plaintiffs’ motion for summary judgment is denied.

           SO ORDERED this 15th day of May, 2013. 10

                                                                      REGGIE B. WALTON
                                                                      United States District Judge




10
     The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.


                                                        28
