                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-1998

Fertilizer Inst v. Browner
Precedential or Non-Precedential:

Docket 97-7494




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

Recommended Citation
"Fertilizer Inst v. Browner" (1998). 1998 Decisions. Paper 282.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/282


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Filed December 21, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7494

FERTILIZER INSTITUTE,
a Delaware non-profit corporation,
       Appellant

v.

CAROL M. BROWNER, Administrator,
United States Environmental Protection Agency;
THE UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY

On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 96-cv-00273)
District Judge: Hon. Joseph J. Farnan, Jr.

Submitted Pursuant to Third Circuit LAR 34.1(a)
October 5, 1998

Before: SLOVITER and COWEN Circuit Judges and
POLLAK, District Judge*

(Filed December 21, 1998)

       Peter L. Gray
       McKenna & Cuneo, L.L.P.
       Washington, D.C. 20006

        Attorney for Appellant
_________________________________________________________________

* Hon. Louis H. Pollak, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
       Lois J. Schiffer
        Assistant Attorney General
       Steve C. Gold
       John T. Stahr
       Mary F. Edgar
        Attorneys, Environment and
       Natural Resources Division
       Department of Justice
       Washington, D.C. 20530

       Of Counsel:
       Laurel Celeste
        Attorney, Office of General Counsel
       U.S. Environmental Protection
        Agency
       Washington, D.C. 20460

        Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The Fertilizer Institute ("TFI") appeals the decision of the
district court upholding the Environmental Protection
Agency's ("EPA") addition of nitrate compounds to the Toxic
Release Inventory ("Inventory"). We will affirm for the
reasons discussed herein.

I.

FACTS AND PROCEDURAL HISTORY

In January 1994, the EPA proposed a rule adding 313
chemicals to the Inventory pursuant to the Emergency
Planning and Community Right to Know Act of 1986 (the
"EPCRA"). See 42 U.S.C. SS 11023(c)-(d). In November 1994,
the EPA adopted a final rule which included 286 of the 313
chemicals originally proposed. Nitrate compounds were
among the chemicals added based on chronic health
effects, specifically because nitrate compounds cause
human infants to develop methemoglobinemia, a condition

                                  2
that prevents proper transportation throughout the body of
oxygen via red blood cells and causes damage to vital
organs. The EPA characterized this consequence to be a
"severe or irreversible . . . chronic health effect," one of the
criteria in the statute. See 42 U.S.C. S 11023(d)(2)(B).

In May 1996, TFI, a trade association representing the
fertilizer industry whose members use nitrate compounds,
filed a complaint in the district court challenging the EPA's
placement of nitrate compounds on the Inventory. TFI gave
three reasons for its challenge to the nitrates listing:
inadequate notice of the EPA's intent to place nitrates on
the list under the EPA's interpretation and application of
chronic health effects; inadequate response to the
comments submitted by TFI; and misapplication of the
statutory criteria, which resulted in the EPA's overstepping
its authority under S 11023(d). Both TFI and the EPA filed
motions for summary judgment.

Reviewing the overall record, the district court held that
the EPA provided adequate notice to the parties, including
"particularly sophisticated commenters like TFI who are
familiar with nitrate compounds." Dist. Ct. Mem. Op. at 19.
The district court also concluded that the EPA adequately
responded to the comments submitted by several
organizations, including TFI. Id. at 22. The court observed
that the criticisms challenged the EPA's conclusions, but
not the evidence the agency relied on in reaching them. Id.
at 21-22. Finally, the district court concluded that the EPA
had shown that the record supported the decision to
include nitrates because of the chronic health effects they
can produce in infants. Id. at 24-25. Thus, the district
court upheld the agency's addition of nitrates to the
Inventory, and granted summary judgment in favor of the
EPA.

TFI filed a timely notice of appeal. We have jurisdiction
pursuant to 28 U.S.C. S 1291.

                               3
II.

DISCUSSION

A.

Standard of Review

In considering summary judgment decisions, we review
the case de novo, applying the same standard that the
district court did. See Carlisle Area Sch. v. Scott P., 62 F.3d
520, 526 (3d Cir. 1995). In the context of agency decision
making, we review the agency record directly. See Troy
Corp. v. Browner, 120 F.3d 277, 281 (D.C. Cir. 1997).

Courts review agency decision making with deference.
The Administrative Procedure Act provides that a court
should "set aside agency action, findings, and conclusions
found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. S 706(2)(A).
Grounds for concluding that the agency acted arbitrarily
and capriciously include its reliance on factors outside
those Congress intended for consideration, a complete
failure by the agency to consider an important aspect of the
problem, or an agency's explanation contrary to, or
implausible in light of, the evidence. See Motor Vehicle Mfrs.
Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983); see also Pennsylvania Dep't of
Pub. Welfare v. United States Dep't of Health and Human
Servs., 101 F.3d 939, 943 (3d Cir. 1996) (reversal
appropriate if action "irrational, not based on relevant
factors, or outside statutory authority").

We have often stated that in assessing the record, the
court should not substitute its own judgment for the
scientific expertise possessed by the agency. See, e.g.,
Southwestern Pa. Growth Alliance v. Browner, 121 F.3d
106, 117 (3d Cir. 1997). Furthermore, the courts are
deferential to an agency's interpretation of a statute in
situations in which "Congress has been either`silent or
ambiguous' " on the question under consideration. Id. at
116 (quoting Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984)).

                               4
B.

The EPCRA

The Emergency Planning and Community Right to Know
Act authorizes the EPA to add chemicals and compounds to
the Inventory under three general criteria, broadly
described as acute effects, chronic effects, and
environmental effects. Only the first two are relevant to the
analysis here. The relevant provision states:

       A chemical may be added if the Administrator
       determines, in his judgment, that 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 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.

S 11023(d)(2) (emphasis added). Subsection (A) governs
chemicals that have acute effects and imposes two
determinations on the EPA: significant adverse human
health effects and a minimum level of exposure. In
contrast, the chronic effects standard of subsection (B)
requires only a determination of "serious or irreversible . . .
chronic health effects," and does not refer to any level of
exposure.

We consider TFI's challenge to the EPA's addition of
nitrate compounds to the Inventory under the "chronic
health effects" language of subsection (B)(ii)(IV).

                               5
1. The Meaning and Application of "Chronic Effects"

First, TFI asserts that the EPA changed its definition and
then applied the new definition of "chronic health effects"
when adding nitrates to the Inventory, but without
explaining the reasons for doing so. TFI compares the
language in the EPA's Hazard Assessment Guidelines for
Listing Chemicals on the Toxic Release Inventory, Revised
Draft (26 May 1992) ("Draft HAG"), with the determination
made in the final rule. The Draft HAG states that chronic
health effects "result from long-term exposure to a
chemical." Draft HAG at 29 (emphasis added). By contrast,
the EPA's listing for nitrates is premised on the long-term
(i.e., chronic) consequences of methemoglobinemia.

It is well-established that an agency may not depart from
"established precedent without announcing a principled
reason for such a reversal." Donovan v. Adams Steel
Erection, Inc. 766 F.2d 804, 807 (3d Cir. 1985) (citing Local
777, Democratic Union Org. Comm. v. NLRB, 603 F.2d 862
(D.C. Cir. 1978)). Nor may an agency "chang[e] course by
rescinding a [promulgated] rule" without providing "a
reasoned analysis for the change." Motor Vehicle Mfrs.
Ass'n, 463 U.S. at 42. Either of these actions would be
arbitrary and capricious.

However, we are not persuaded that the EPA has
abandoned its prior practices here in the way that the
precedents require to trigger an explanation. In Adams
Steel, the agency departed from a series of agency-
established and court-established precedential standards,
and in Motor Vehicle Mfrs. Ass'n, the agency departed from
an already promulgated rule, as distinguished from the
unpromulgated Draft HAG, upon which TFI relies.
Significantly, TFI did not challenge the evidence on which
the EPA relied either in the rulemaking or in the district
court. We conclude that the EPA was free to exercise its
discretion and expert judgment in relying on a definition of
other chronic effects that does not require long-term
exposure. We agree with the D.C. Circuit's conclusion that
the EPA did not abandon any long-held policy in
promulgating this rule. See Troy Corp., 120 F.3d at 287.

However, TFI also contends that the EPA has used the
phrase "other chronic effects" inconsistently within the final

                               6
rule at issue. TFI apparently argues that because the EPA
now views persistence beyond the period of exposure as a
characteristic of chronic effects, four chemicals that it listed
under acute effects (subsection (A)) (methyltrichlorosilane,
trimethyltrichlorosilane, brucine, and phosphine) should
have been listed under chronic effects (subsection (B)),
because they may cause permanent injury. TFI Br. at 22.

The EPA concedes that it withdrew voluntarily
two of the chemicals (methyltrichlorosilane and
trimethyltrichlorosilane) from the Inventory. EPA Br. at 31
(citing Deletion of Certain Chemicals, 63 Fed. Reg. 19838
(1998)). With regard to the two remaining chemicals, it
considered factors such as the manifestation period and
duration of the effect and concluded that these chemicals
"kill too quickly for their effects to be considered `chronic.' "
EPA Br. at 31. Applying this distinction involves precisely
the type of scientific expertise that this court will not
second guess. See Southwestern Pa. Growth Alliance, 121
F.3d at 117.

But TFI presses the inconsistency argument further,
referring to related litigation over the 1994 rule. See Troy
Corp., 120 F.3d 277, aff'g in part and rev'g in part National
Oilseed Processors Ass'n v. Browner, 924 F. Supp. 1193
(D.D.C. 1996). In Troy Corp., the court considered, inter
alia, industry objections to the EPA's listing of bronopol as
a chronic toxicant. The studies on which the EPA based
that listing showed that bronopol produced severe
gastrointestinal irritation in tested animals, suggesting that
it was an acute toxicant. The EPA relied on the duration of
exposure in placing the chemical under (B), even though
that subsection does not have an exposure requirement.
The Troy Corp. court was concerned because previously in
dealing with hydrogen sulfide the agency had looked not to
the length of the exposure but to the length of the effect.
The Troy Corp. court, therefore, directed the EPA to
reconsider whether its listing of bronopol in the Inventory
was inconsistent with its approach in the earlier case. Id. at
291.

Here, the EPA listed nitrates based on the chronic effect,
not the duration of the exposure, which is consistent with
its approach to hydrogen sulfide. Had it based this listing

                               7
on duration of exposure, TFI would have been able to argue
that the EPA was being inconsistent with the hydrogen
sulfide listing. Therefore, the EPA was not arbitrary and
capricious in its listing of nitrates under subsection (B).

2. Statutory Construction

TFI next contends that in listing nitrates the EPA
interpreted the statutory language of "serious or
irreversible," 42 U.S.C. S 11023(d)(2)(B)(ii)(IV), in a way that
makes the term "chronic" superfluous, which would be an
impermissible statutory construction. See Babbitt v. Sweet
Home Chapter of Communities for Greater Or., 515 U.S. 687,
698 (1995); United Steel Workers v. North Star Steel Co., 5
F.3d 39, 42 (3d Cir. 1993). Specifically, it argues that "the
fact that an adverse effect may persist past the period of
exposure is simply another way of stating that the effect is
`serious or irreversible.' " TFI Br. at 25.

As the EPA notes, not all chronic effects are irreversible,
and to demonstrate that the word "chronic" retains
meaning distinct from "irreversible" it gives the example of
a stomach ulcer that might develop over a long period of
time and last a long time but be medically reversible.
Similarly, not all "chronic effects" are necessarily serious,
because, as the EPA notes, a minor effect might last a long
time.

The mere existence of some overlap between terms does
not mean that the EPA's interpretation of the statutory
language is so unreasonable that it cannot be accepted. See
Sweet Home Chapter, 515 U.S. at 698 (agency
interpretation creating overlap with other words in statute
a function of act's purposes not agency unreasonableness).
The deference that we owe to an agency's interpretation of
its own statute, particularly one this technical, requires at
least that much.

3. Notice of the Definition of "Chronic Effects"

Finally, TFI contends that during the rulemaking process
the EPA failed to notify the public that the basis for its
listing of nitrate compounds as "chronic" was that they
produce health effects that persist past the period of
exposure. It argues that had it known that the EPA was

                                8
applying what TFI asserts is the "new `chronic effects'
definition," TFI would have commented.

In responding, the EPA first notes that TFI did not raise
this issue in the district court. Instead, there it raised lack
of notice that effects other than methemoglobinemia were
the basis for listing nitrates. TFI has not disputed in its
reply brief that the direction of its lack of notice argument
in the district court was different than that it makes here.
This alone would support ruling against TFI. In any event,
the record supports the conclusion that TFI was adequately
apprised of the definition that the EPA used.

The rulemaking process requires an agency "to fairly
apprise interested parties of all significant subjects and
issues involved," American Iron & Steel Inst. v. EPA, 568
F.2d 284, 291 (3d Cir. 1977) (internal quotation marks
omitted), so that they can participate in the process. This
policy is not undermined when an agency promulgates a
final rule that does not mirror precisely the proposed rule
outlined in the notice. A "substantially different" rule is
permissible as long as the participants had sufficient notice
at the start of the process. Id. at 293; accord Association of
Oil Pipelines v. FERC, 83 F.3d 1424, 1432 (D.C. Cir. 1996).

The EPA argues that the notice sufficiently apprised
interested parties of its persistent effects rationale for
listing nitrates under the chronic effects category, and that
it merely applied what was a commonly used interpretation
of "chronic effects." In its notice, it referred interested
commenters to the scientific literature on which its
conclusions were based. The EPA notes that at least one
commenter understood that EPA would consider an effect
chronic based on the effect's duration, and that
commentator directed comments to that issue. Just as TFI
could understand that it was not the methemoglobinemia
condition itself, but the extended consequences of that
condition, that warranted a listing under chronic effects, it
could conclude that the EPA was relying on the persistent
consequences after exposure.

TFI was apprised sufficiently of the EPA's usage of
persistence beyond exposure as the basis for the nitrates
listing. Therefore, this final challenge fails.

                               9
III.

CONCLUSION

We have considered all of TFI's other contentions as well
and conclude that it has failed to demonstrate that the EPA
acted arbitrarily and capriciously in listing nitrates on the
Toxic Release Inventory because of their "serious or
irreversible . . . chronic health effects." Thus, we will affirm
the district court's grant of summary judgment for the EPA.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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