National Oilseed Processors Ass'n v. Browner

• Decision Date: 30 April 1996
• Docket Number: No. CV 95-763,CV 95-980,CV 95-1673 and CV 95-1910.,CV 95-763
• Citation: 924 F. Supp. 1193
• Parties: NATIONAL OILSEED PROCESSORS ASS'N, Plaintiff, v. Carol BROWNER, Administrator, and U.S. Environmental Protection Agency, Defendants. TROY CORPORATION, Plaintiff, v. Carol BROWNER, Administrator, and U.S. Environmental Protection Agency, Defendants. CHEMICAL MANUFACTURERS ASSOCIATION, Plaintiff, v. Carol BROWNER, Administrator, and U.S. Environmental Protection Agency, Defendants. NMP PRODUCERS GROUP, Plaintiff, v. Carol BROWNER, Administrator, and U.S. Environmental Protection Agency, Defendants.
• Court: U.S. District Court — District of Columbia

924 F. Supp. 1193

NATIONAL OILSEED PROCESSORS ASS'N, Plaintiff, v. Carol BROWNER, Administrator, and U.S. Environmental Protection Agency, Defendants.

TROY CORPORATION, Plaintiff, v. Carol BROWNER, Administrator, and U.S. Environmental Protection Agency, Defendants.

CHEMICAL MANUFACTURERS ASSOCIATION, Plaintiff, v. Carol BROWNER, Administrator, and U.S. Environmental Protection Agency, Defendants.

NMP PRODUCERS GROUP, Plaintiff, v. Carol BROWNER, Administrator, and U.S. Environmental Protection Agency, Defendants.

Nos. CV 95-763, CV 95-980, CV 95-1673 and CV 95-1910.

United States District Court, District of Columbia.

April 30, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Menotti, John Seymour, Anita Cicero, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., for the National Oilseed Processors Associations.

William K. Rawson, Claudia O'Brien, Latham & Watkins, Washington, D.C., for Troy Corporation and Chemical Manufacturers Association.

David Zoll, Amit Sachdev, Chemical Manufacturers Association, Washington, D.C., Cynthia Lewis, Karl Bourdeau, Alec I. Ugol, Beveridge & Diamond, Washington, D.C., for NMP Producers Group.

Eugene M. FitzMaurice, ARCO Chemical Company, Newtown Square, PA.

Scott Jordan, Mary Edgar, Environmental Defense Section, U.S. Department of Justice, Washington, DC, Amber Aranda, Carl Eichenwald, Julie Simpson, U.S. Environmental Protection Agency, Washington, DC, for Carol Browner and E.P.A.

MEMORANDUM OPINION

KESSLER, District Judge.

I. Introduction

Each of four Plaintiffs, Troy Corporation ("Troy"), NMP Producers Group ("NMP"), National Oilseed Processors Association ("NOPA"), and Chemical Manufacturers Association ("CMA"), brings a separate action against the Environmental Protection Agency ("EPA" or "Agency") pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), on the grounds that EPA's addition of each Plaintiff's chemical or chemicals to the Toxic Release Inventory ("TRI") list was arbitrary and capricious, an abuse of discretion, and contrary to law.¹ Each Plaintiff seeks a final order vacating the final decision of the EPA to list the chemical or chemicals pursuant to § 313 of the Emergency Planning and Community Right-To-Know Act of 1986 ("EPCRA"), 42 U.S.C. § 11023.

This matter is before the Court upon Plaintiffs' Motions for Summary Judgment and Defendants' Cross-Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. The Court has considered the Motions, the Oppositions, the Replies, the oral arguments in open court on March 27, 1996, the applicable statutory and case law, and the voluminous record submitted in each of the four cases. For the reasons discussed below, the Court concludes that Plaintiffs' Motions for Summary Judgment must be denied, and that Defendants' Cross-Motions for Summary Judgment must be granted.

II. Statutory Framework

State and local governments, as well as the public at large, are entitled to access information concerning potential chemical hazards in their communities. That is the central premise underlying the Emergency Planning and Community Right-To-Know Act ("EPCRA"), codified at 42 U.S.C. §§ 11001-11050 and signed into law on October 17, 1986, as Title III of the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613, 1629. The primary purpose of the law is to encourage state and local planning for spills or releases of toxic or hazardous chemicals. 42 U.S.C. § 11001.

Section 313² of EPCRA mandates that facilities manufacturing, processing or using certain toxic chemicals report annually on the presence of those chemicals at the facility, the uses of the chemicals, an estimate of the maximum amounts of the chemicals present at the facility at any time, methods of disposal and treatment of waste, and the extent to which those chemicals are being released into the environment. 42 U.S.C. § 11023(g). The list of toxic chemicals subject to reporting under § 313 is known as the Toxic Release Inventory ("TRI") list. Notably, EPCRA does not restrict the manufacture, processing, use or disposal of any chemical; it is simply a reporting statute which requires facility owners or operators to provide EPA and state governments with information.³ 42 U.S.C. § 11023(a). EPA and state governments, in turn, make this information available to local governments and citizens in the community, who may then develop appropriate emergency response plans as required under Section 303 of EPCRA. See 42 U.S.C. § 11023(h) and (j); 59 Fed.Reg. 1788 (col. 3) (Jan. 12, 1994).

EPCRA also requires EPA to maintain a publicly accessible computer database containing a national toxic chemical inventory based on the reports submitted under Section 313. 42 U.S.C. § 11023(j). This information has enabled the Federal government, State governments, industry, environmental groups, and the general public to participate in an informed dialogue about the environmental impact of toxic chemicals in order to assess the need to reduce and, where possible, eliminate chemical releases. See, e.g., 42 U.S.C. § 11005(a)(1) & (2).

When Congress enacted EPCRA in 1986, it directly placed 309 individual chemicals and 20 chemical categories on the TRI list. 42 U.S.C. § 11023(c). These chemicals came from two existing lists of toxic chemicals: the Maryland Chemical Inventory Report List of Toxic or Hazardous Substances, and the New Jersey Environmental Hazardous Substance List. 59 Fed.Reg. at 1788 (col. 3).

Congress provided that additions may be made to the TRI list in the following manner: First, under § 313(e), 42 U.S.C. § 11023(e), either a private party or a State Governor may petition EPA to add chemicals to or delete chemicals from the TRI list. Within 180 days of receiving such a petition, EPA must either (1) initiate a rulemaking to add or delete the chemical, or (2) publish an explanation of why the petition is denied. 42 U.S.C. § 11023(e)(1).⁴

Second, on its own initiative, EPA "may by rule add or delete a chemical from the TRI list at any time." 42 U.S.C. § 11023(d)(1). Congress left to EPA's discretion the timing and manner of selection of candidate chemicals to be considered for listing under the statutory criteria. The criteria for listing are the same regardless of whether listing is triggered by a petition or an EPA rulemaking. 42 U.S.C. § 11023(d)(2) and (e). The basic requirement for addition of chemicals to the TRI list is a finding by the Administrator that, in her judgment, "there is sufficient evidence to establish any one of" three criteria for listing. 42 U.S.C. § 11023(d)(2).

The first criterion provided in the statute is that EPA may list chemicals that are "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." 42 U.S.C. § 11023(d)(2)(A).

The second statutory criterion is that EPA may list chemicals that are known to cause or can reasonably be anticipated to cause in humans cancer, teratogenic effects (i.e., developmental malformations), or serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutations, or other chronic health effects. See 42 U.S.C. § 11023(d)(2)(B).

The third statutory criterion is that EPA may list chemicals that are known to cause or can reasonably be anticipated to cause, because of their toxicity alone, or their toxicity and persistence in the environment, or their toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment. See 42 U.S.C. § 11023(d)(2)(C).

In enacting Section 313, Congress provided that EPA may list a chemical even when its effects cannot be proven to a scientific certainty. The statute mandates that EPA base its listing decisions under Section 313 "on accepted scientific principles or laboratory tests, or appropriately designed and conducted epidemiological or other population studies, available to the Administrator." 42 U.S.C. § 11023(d).

III. EPA's Screening Process

After seven years of administering EPCRA, EPA concluded in 1993 that the TRI list covered only a relatively small portion of the chemicals potentially of concern to EPA and the public. See 59 Fed.Reg. at 1788-89. In order to develop candidates for addition to the TRI list, EPA identified ten lists of chemicals and two lists of carcinogens. 59 Fed.Reg. 61,432. Faced with 12 lists containing over 1500 chemicals⁵, as well as the Agency's limited resources, EPA developed and applied screening procedures⁶ to eliminate some chemicals from consideration before beginning the rulemaking.⁷

First, EPA excluded a number of the chemicals for practical reasons, such as the fact that they were already on the TRI list or that they had previously been considered and rejected for listing in two previous rulemakings triggered by Section 313(e) petitions. 59 Fed.Reg. 1789. Once this was done, EPA had narrowed the list to 1031 potential candidates for the rulemaking process.

Second, EPA subjected most of the remaining 1031 chemicals to a "production volume screen" and a "toxicity screen." 59 Fed.Reg. 1789-90. Under the production volume screen, EPA determined whether each chemical was manufactured, processed, or used in volumes above the statutory reporting thresholds established in Section 313(f). 42 U.S.C. § 11023(f). EPA used the toxicity screen to determine whether the chemicals manifested acute human health effects, cancer, other chronic human health effects, or ecological effects. This screen was based on readily available toxicity data and involved a "quick look" to identify chemicals that did not warrant further consideration. 59 Fed.Reg. 1789. EPA used the toxicity data to place each chemical in one of three categories: high priority, medium priority, or low priority. 59...