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.
Before: Sloviter and Cowen Circuit Judges and Pollak, District Judge* * Hon. Louis H. Pollak, United States District Court for the Eastern District of Pennsylvania, sitting by designation.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Submitted Pursuant to Third Circuit LAR 34.1(a) October 5, 1998
(Filed December 21, 1998)
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.
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. §§ 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 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. § 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 § 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. § 1291.