Huls America Inc. v. Browner

• Decision Date: 08 July 1996
• Docket Number: No. 95-5282,95-5282
• Citation: 83 F.3d 445
• Parties: , 317 U.S.App.D.C. 333, 64 USLW 2729, 26 Envtl. L. Rep. 21,130 HULS AMERICA INC., Appellant, v. Carol M. BROWNER, Administrator, and the Environmental Protection Agency, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 445

83 F.3d 445

42 ERC 1792, 317 U.S.App.D.C. 333, 64

USLW 2729,

26 Envtl. L. Rep. 21,130

HULS AMERICA INC., Appellant, v. Carol M. BROWNER, Administrator, and the Environmental Protection Agency, Appellees.

No. 95-5282.

United States Court of Appeals District of Columbia Circuit.

Argued April 4, 1996.

Decided May 10, 1996.

Rehearing Denied July 8, 1996.

Appeal from the United States District Court for the District of Columbia (No. 95cv00042).

William K. Rawson, Washington, DC, argued the cause and filed the briefs for appellant.

Ellen J. Durkee, Attorney, United States Department of Justice, argued the cause for appellees, with whom Lois J. Schiffer, Assistant Attorney General, Mary F. Edgar and Albert M. Ferlo, Jr., Washington, DC and Alan H. Carpien, Counsel, Environmental Protection Agency, were on the brief.

Before: WALD, GINSBURG and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Huls America Inc. ("Huls") appeals the district court's grant of summary judgment to the Environmental Protection Agency ("EPA") in Huls' suit challenging the EPA's refusal to remove isophorone diisocryanate ("IPDI") from the list of extremely hazardous substances ("EHS list") promulgated pursuant to section 302 of the Emergency Planning and Community Right to Know Act ("EPCRA"), 42 U.S.C. § 11002 (1988). We agree with the EPA that its interpretation of section 302 to allow continued inclusion on the EHS list based on toxicity alone is a permissible construction of that law and that the EPA's refusal to delist IPDI was not arbitrary and capricious, and therefore affirm the grant of summary judgment.

I. BACKGROUND

EPCRA was enacted on October 17, 1986 as Title III of the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499 (1986), (codified at 42 U.S.C. §§ 11002-11050). The purpose of EPCRA was to provide communities with information on potential chemical hazards within their boundaries and to foster state and local emergency planning efforts to control any accidental releases. See H.R.REP. NO. 253, 99th Cong., 2d Sess., pt. 1 at 60, 1986 U.S.Code Cong. & Admin.News at pp. 2835, 2842; Emergency Planning and Community Right to Know Programs, Interim Final Rule, 51 Fed.Reg. 41,570, 41,570 (1986) (hereinafter Interim Rule ). To achieve this end, EPCRA imposed a system of notification requirements on industrial and commercial facilities and mandated that state emergency response commissions and local emergency planning committees be created. The local emergency planning committees were charged with developing emergency response plans based on the information provided by facilities. See 42 U.S.C. §§ 11001-11003. In addition, EPCRA granted members of the public the right to know the information reported by the facilities and the contents of emergency response plans. See id. at § 11044.

Section 302, the provision at issue here, is an integral part of the notification system created by EPCRA. Section 302 required the EPA to promulgate the EHS list and establish a threshold planning quantity ("TPQ") for each substance included. See 42 U.S.C. § 11002(a). A TPQ represents the amount of an EHS list substance that the EPA believes generally can be present at a facility without posing a hazard to the surrounding community in the case of an accidental release. See Interim Rule, 51 Fed.Reg. at 41,572. A facility must notify the state emergency response commission within 60 days if a listed substance becomes present at the facility in an amount above the substance's TPQ. See 42 U.S.C. §§ 11002(b), 11002(c). Other provisions require that the facility inform the local emergency planning committee of any relevant changes at the facility and designate a facility emergency coordinator who will work with the committee in developing an emergency response plan. See id. at § 11003(d). In addition, any facility producing, using, or storing an EHS list substance must notify the local emergency response committee of an accidental release of one pound or more of the substance, unless the EPA has set a different release quantity, regardless of the total amount of the substance present at the facility. See id. at § 11004. However, accidental releases that result only in on-site exposure (i.e., exposure to persons within the confines of the facility) are exempt from the accidental release notification requirements. See id. at § 11004(a)(4).

Section 302 further mandated that an initial EHS list be published within 30 days of EPCRA's enactment and granted the EPA the authority to revise the list. The initial EHS list was required to be identical to an existing list promulgated by the EPA in 1985 pursuant to the Chemical Emergency Preparedness Program ("CEPP"). In order to compile the CEPP list, the EPA established definitions of "acutely toxic" substances in regard to three forms of exposure: inhalation exposure (exposure via breathing), oral exposure (exposure via ingestion), and dermal exposure (exposure via the skin). The definition of acutely toxic for inhalation exposure, which is the form of exposure most likely to affect surrounding communities, is that a substance caused the death of at least 50% of the animals exposed over a period of up to eight hours when released at a concentration of .5 milligrams per liter of air or lower. This definition is expressed as a median lethal concentration (LC sub50 ) of .5 mg/l or lower. ¹ Next, the EPA examined data on toxicity in the Registry of Toxic Effects of Chemical Substances ("RTECS"), a comprehensive repository of toxicity data that is maintained by the National Institute of Occupational Safety and Health ("NIOSH"). RTECS contains acute and basic toxicity data on 79,000 chemicals. Using the RTECS data, the EPA compiled a list of 402 chemicals that had an LC sub50 of .5 mg/l or lower and therefore met its definition of acutely toxic upon inhalation exposure. See CHEMICAL EMERGENCY PREPAREDNESS PROGRAM: INTERIM GUIDANCE §§ 6.1 TO 6.7 (EPA 1985); see also Interim Rule, 51 Fed.Reg. at 41,573-75. ²

As mandated by section 302 of EPCRA, the EPA published the CEPP list as the initial EHS list on November 17, 1986, within thirty days of EPCRA's enactment. The EPA simultaneously published an interim rule describing the methodologies the EPA proposed to use to determine revisions to the EHS list and to calculate TPQs. See Interim Rule, 51 Fed.Reg. 41,570. In the interim rule the EPA proposed to use acute toxicity as the sole criterion for determining revisions to the EHS list and to retain the CEPP definitions of acute toxicity. Thus, any substance with an LC sub50 of .5 mg/l or lower would not be removed from the EHS list. See id. at 41,573-75; Proposed Rules, Emergency Planning and Community Right To Know Programs, 51 Fed.Reg. 41,593, 41,593 (1986).

In contrast, the EPA proposed to take into account both the risk that the substance would become airborne and disperse if accidentally released and the substance's toxicity in calculating TPQs. Substances that become airborne and disperse quickly represent a greater health hazard for surrounding communities if an accidental release occurs, since such substances are more likely to cause off-site exposure. Several key factors affect whether a substance will become airborne and disperse. One such factor is the substance's volatility, or its tendency to evaporate. Vapor pressure is generally used as the measure of volatility; thus a substance with a high vapor pressure is more volatile than a substance with a low vapor pressure. ³ Other factors are whether the substance is flammable, which means that it generates sufficient vapor to ignite at low temperatures, whether it reacts violently when exposed to air or water, and its physical state (gas, liquid, or solid) at ambient temperatures. See Interim Rule, 51 Fed.Reg. at 41,575.

The TPQ methodology proposed by the EPA used all of these factors--volatility, flammability, reactivity, and physical state--in calculating TPQs. This methodology focused on determining the risk of off-site exposure associated with a particular EHS list substance in comparison to other substances, rather than on estimating this risk in absolute terms. Through an equation that factored in data on a substance's toxicity, physical state, vapor pressure, and molecular weight, the EPA calculated an "index value" for each substance. In the case of liquids, the EPA assumed that any accidental release would result in a pool of the liquid 1 cm. deep and would occur at boiling point conditions, which were approximated by using the substance's boiling point temperature and a vapor pressure of 760 mm/Hg. The index value represented the comparative degree of risk that an accidental release of the substance would result in off-site exposure, and each substance was assigned one of five possible TPQ levels--2 lbs., 10 lbs., 100 lbs., 1,000 lbs. or 10,000 lbs.--depending on its index value. Substances with low index values were assigned a TPQ of 2 lbs., while substances with high index values received a TPQ of 10,000 lbs. and substances with intermediate index values received a TPQ of either 10 lbs., 100 lbs., or 1,000 lbs. See Interim Rule, 51 Fed.Reg. at 41,575-77, 41,580.

On April 22, 1987, the EPA published a final rule on the EHS list and TPQ methodologies. See Extremely Hazardous Substances List and Threshold Planning Quantities, Emergency Planning and Release Notification Requirements, Final Rule, 52 Fed.Reg. 13,378 (1987) (hereinafter Final Rule ). The EPA stated that it had decided to adopt the proposed EHS listing criteria and therefore revisions to the EHS list would be based only on toxicity and not on other physical and chemical properties of substances. See id. at 13,387-88. ⁴ The EPA noted that it "intend[ed] to evaluate hazards other than toxicity ... to develop appropriate criteria based on ... physical/chemical properties, e.g. flammability, for...