Troy Corp. v. Browner

• Decision Date: 01 August 1997
• Docket Number: 96-5203 and 96-5204,Nos. 96-5188,s. 96-5188
• Parties: , 326 U.S.App.D.C. 249, 27 Envtl. L. Rep. 21,548 TROY CORPORATION, Appellant, v. Carol M. BROWNER, Administrator, United States Environmental Protection Agency and Environmental Protection Agency, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 277

120 F.3d 277

45 ERC 1097, 326 U.S.App.D.C. 249, 27

Envtl. L. Rep. 21,548

TROY CORPORATION, Appellant, v. Carol M. BROWNER, Administrator, United States Environmental

Protection Agency and Environmental Protection

Agency, Appellees.

Nos. 96-5188, 96-5203 and 96-5204.

United States Court of Appeals, District of Columbia Circuit.

Argued May 7, 1997.

Decided Aug. 1, 1997.

Appeals from the United States District Court for the District of Columbia (Nos. 95cv00980, 95cv01673, 95cv01910).

William K. Rawson, Washington, DC, argued the causes for appellants Chemical Manufacturers and Troy Corporation, with whom Claudia M. O'Brien, David F. Zoll, and John C. Marchese, Washington, DC, were on the briefs.

Cynthia A. Lewis, Washington, DC, argued the cause for appellant NMP Producers Group, with whom Alec I. Ugol and Karl S. Bourdeau, Washington, DC, were on the briefs.

Ellen J. Durkee, Attorney, United States Department of Justice, Washington, DC, and Timothy Burns, Attorney, United States Environmental Protection Agency, argued the cause for appellee, with whom Lois J. Schiffer, Assistant Attorney General, Scott J. Jordan, Mary F. Edgar, and John A. Bryson, Attorneys, United States Department of Justice, Washington, DC, were on the brief.

Before: GINSBURG, SENTELLE and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Appellants, chemical manufacturers and associations of chemical manufacturers, appeal from the district court's grant of summary judgment in favor of the Administrator of the United States Environmental Protection Agency ("EPA" or "the Administrator") in actions appellants brought seeking to invalidate the Administrator's rulemaking which had culminated in the addition of 286 chemicals to the Toxic Release Inventory ("TRI") under the Emergency Planning and Community Right to Know Act of 1986 ("EPCRA" or "the Act"), 42 U.S.C. § 11001 et seq. Appellants had asserted error on the Administrator's part both as to the adoption of the list of new chemicals as a whole, and as to specific chemicals on the list. Finding only specific error, we affirm the judgment of the district court in large part, but remand for further proceedings with regard to two chemicals.

I. Background

In 1986, Congress enacted EPCRA, which provides, inter alia, that manufacturers, processors, and users of certain toxic chemicals must file annual reports of environmental releases of those chemicals with the EPA and state environmental agencies. The EPA and the state agencies, in turn, make the information available to federal, state, and local governments and the public, including the citizens of communities surrounding covered facilities. See 42 U.S.C. § 11023(h). The requirements for the report are rather detailed. It must include, as to each facility at which the chemicals are manufactured, processed, or used, the name, location, and principal business activities of the facility; a certification of accuracy by responsible management officials; and, as to each covered toxic chemical known to be present at the facility:

(i) Whether the toxic chemical at the facility is manufactured, processed, or otherwise used, and the general category or categories of use of the chemical.

(ii) An estimate of the maximum amounts (in ranges) of the toxic chemical present at the facility at any time during the preceding calendar year.

(iii) For each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such methods for that wastestream.

(iv) The annual quantity of the toxic chemical entering each environmental medium.

42 U.S.C. § 11023(g)(1)(C)(i)-(iv).

The reporting requirement of the Act applies to chemicals listed in a document titled "Toxic Chemicals Subject to Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986," now known as the TRI. 42 U.S.C. § 11023(c). The original list, compiled by the Senate Committee on Environment and Public Works and incorporated by reference in the statute, included 309 individual chemicals and twenty categories of chemicals. Congress did not, however, limit the coverage of the Act to the original list, but stated that "the Administrator may by rule add or delete a chemical" based on statutory criteria, providing specifically that the Administrator may add a chemical when "in his judgment, ... there is sufficient evidence to establish any one of the following":

(A) The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous or frequently recurring, releases.

(B) The chemical is known to cause or can reasonably be anticipated to cause in humans--

(i) cancer or teratogenic effects, or

(ii) serious or irreversible--

(I) reproductive dysfunctions,

(II) neurological disorders,

(III) heritable genetic mutations, or

(IV) other chronic health effects.

(C) The chemical is known to cause or can reasonably be anticipated to cause, because of--

(i) its toxicity,

(ii) its toxicity and persistence in the environment, or

(iii) its toxicity and tendency to bioaccumulate in the environment,

a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this section [with qualifications].

42 U.S.C. § 11023(d)(2). EPCRA further provides that listing decisions shall be based on "generally accepted scientific principles or laboratory tests, or appropriately designed and conducted epidemiological or other population studies." Id.

Between 1986 and 1994, the Administrator made little use of the statutory power to revise the list, adding only sixteen chemicals and deleting twelve. In 1994, the EPA put forth a proposed rule adding 313 chemicals and chemical categories to the TRI. Addition of Certain Chemicals: Toxic Chemical Release Reporting; Community Right-to-Know, 59 Fed.Reg. 1788. After receiving comments, the EPA determined that there was insufficient evidence to include three of the chemicals. The EPA also deferred action on 40 chemicals and one chemical category for a future rulemaking and added a category containing 20 chemicals, three of which had been proposed for listing individually. With these revisions, the EPA issued a final rule adding 286 chemicals to the TRI. Addition of Certain Chemicals: Toxic Chemical Release Reporting; Community Right-to-Know, 59 Fed.Reg. 61,432.

II. Analysis

We review a grant of summary judgment de novo applying the same standards as those that govern the district court's determination. Doe v. Gates, 981 F.2d 1316, 1322 (D.C.Cir.1993). Those standards require us to "determine whether there is on the record 'no genuine issue as to any material fact.' " Id. (quoting FED.R.CIV.P. 56(c)). In cases like the present one, where the district court was reviewing an agency rulemaking under the Administrative Procedure Act ("APA"), this means that we "review the administrative record directly." Gas Appliance Mfrs. v. Dep't of Energy, 998 F.2d 1041, 1045 (D.C.Cir.1993). In so doing, we must determine whether the agency has complied with the APA; specifically, whether its actions have been arbitrary or capricious, including whether it has acted consistently with its own procedures; and whether its applications of its governing law have been reasonable. The present appeals call upon us to apply those tests to a complex of issues.

Prior to the administrative proceedings leading to the present litigation, the EPA established guidelines for the evaluation of chemicals which were candidates for addition to (or for that matter, deletion from) the TRI, known as the "HAZARD ASSESSMENT GUIDELINES FOR LISTING CHEMICALS ON THE TOXIC RELEASE INVENTORY," May 26, 1992 ("Guidelines"). In the proceedings which we review, the Administrator, at times acting through a contractor, generally applied the Guidelines. The Guideline-mandated analysis involves two steps: (1) "screening" and (2) "hazard evaluation."

In the initial screening stage, the EPA makes what it calls a "rapid initial assessment." Guidelines at 1. In this assessment, the EPA seeks to evaluate whether the subject chemical is handled in a volume that can be expected to cross the statutory threshold for reporting, and to provide an initial categorization of the sufficiency of the toxicological effect of the chemical to be included in the inventory. Id. at 3. In the toxicological categorization, the EPA seeks to classify the candidate chemicals into three categories. Initially, the Guidelines named these categories "sufficient for listing," "may be sufficient for listing," and "insufficient for listing." Id. However, the EPA received comments on the Guidelines pointing out that this nomenclature was misleading and tended to confuse the screening process with the ultimate listing determination. Crediting the comments, the EPA, in the proposed rule, adopted the category titles of "high, medium, and low priority." 59 Fed.Reg. 1788, 1790.

In the second or "hazard evaluation" step, the Administrator undertook a chemical-specific review to determine whether the hazards presented by the specific candidate were in fact sufficient to support listing. Those chemicals classified in the low priority screening category at step one were no longer considered for listing. Guidelines at 3. As to the high and medium categories, the EPA conducted a review of the existing data to determine whether the chemical met one of the three criteria for listing established in EPCRA § 313: that is, whether the chemical "is known to cause or can reasonably be anticipated to cause" (1) significant adverse acute health effects in humans; (2) any of the following effects in humans: "cancer, teratogenic effects, or serious or irreversible reproductive dysfunctions,...