1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-21-1998

Fertilizer Inst v. Browner

Precedential or Non-Precedential:

Docket 97-7494

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Recommended Citation

"Fertilizer Inst v. Browner" (1998). 1998 Decisions. Paper 282.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/282
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 

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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. 

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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)). 

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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).

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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 agencyestablished 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. 

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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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