esters is not ripe, no perceptible doubt exists that the agency's action on April 22 was final and that immediate and significant burdens are imposed on A.L. Labs and CMA-member companies by that action. The legal issue for this Court's consideration will not change with further deliberation by the EPA. Contrary to EPA's argument, there is no administrative or judicial efficiency to be gained by deferring review. Finally, so long as these chemicals remain on the Right-to-Know list, those who store them in excess of the threshold planning quantity will be subject to the disclosure, reporting, and planning obligations of the Right-to-Know Act and the substantial potential fines for failing to comply with the Act.
EPA argues that for the duration of its review of the long-term toxicity of bacitracin and the phthalate esters, its April 22 action is not final. Apart from the fact that the action on that date was labeled a "final rule," the necessary implication of the agency's argument is that judicial review of any administrative action may be effectively precluded by prolonging consideration of that action. Moreover, the agency's position as to bacitracin and the phthalate esters (and the other substances proposed for deletion in November 1986) is inconsistent with the apparent status of the more than 300 other substances on the Right-to-Know list that were never proposed for deletion. There would appear to be no bar to judicial review of the EPA's classification of these substances since EPA does not purport to be reviewing the toxicity of these substances. Rejecting EPA's arguments avoids such an absurd result.
Because analysis of the first prong of Abbott Laboratories weighs so heavily in favor of judicial review of EPA's April 22 action, the required harm that plaintiffs must show is diminished. State Farm, 802 F.2d at 479-80. Nevertheless, it is clear that the EPA's decision to preserve bacitracin and the phthalate esters on the Right-to-Know list imposes reporting and planning requirements on entities that store sufficiently large amounts of these substances. See 42 U.S.C.S. §§ 11002 & 11003 (Law. Co-op. 1987). Moreover, the potential fines for failure to comply with the requirements of the Right-to-Know Act range from $ 25,000 to $ 75,000 and may be assessed daily. See id. § 11045. The aggregate of these imminent and potential harms is sufficient to satisfy the Abbott Laboratories test.
EPA's Refusal to Remove Bacitracin and the Phthalate Esters from the SARA List Was Arbitrary, Capricious, and not in Accordance with the Law
The power of the judiciary to set aside or compel agency action is limited to occasions when the agency's decision to act or withhold action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.S. § 706(2)(A) (Law. Co-op. 1987); see Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983) (scope of review is "narrow"); American Financial Services Association v. FTC, 247 U.S. App. D.C. 167, 767 F.2d 957, 985 (D.C. Cir. 1985) (standard is "highly deferential"); Natural Resources Defense Council v. SEC, 432 F. Supp. 1190, 1199 n.21 (D.D.C. 1977) (arbitrary and capricious standard applies to agency choice not to take action). The Court's task is no more than to verify that the agency "examined relevant data and . . . articulated a rational explanation for its action." Eagle-Picher, 759 F.2d at 921 (citing Motor Vehicle Manufacturers). That task must be accomplished, however, in a "searching and careful" manner. Farmers Union Central Exchange, Inc. v. FERC, 236 U.S. App. D.C. 203, 734 F.2d 1486, 1499 (D.C. Cir. 1984). Agency action is infirm under this standard if it is based on "factors which Congress has not intended [the agency] to consider . . . or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Manufacturers, 463 U.S. at 43. In the context of this case, the EPA's action as to bacitracin and the phthalate esters must have been rationally connected to the facts before it and consistent with Congress' mandate under the Right-to-Know Act.
The question for the Court's consideration is whether the agency's decision to postpone action in the absence of specific facts is "reasoned." Farmers Union, 734 F.2d at 1499-1500. The answer turns on the validity of the agency's interpretation of section 11002(a)(4). EPA's action cannot stand if it is not "true to the congressional mandate from which it derives authority," id. at 1500, or is based on an "erroneous view of the law." Prill v. NLRB, 244 U.S. App. D.C. 42, 755 F.2d 941, 947 (D.C. Cir. 1985) (citing SEC v. Chenery Corp., 318 U.S. 80, 95, 87 L. Ed. 626, 63 S. Ct. 454 (1943)). Contrary to the EPA's insistence, the Court owes minimal deference to the agency's interpretation of the statute. Office of Communication of United Church of Christ v. FCC, 228 U.S. App. D.C. 8, 707 F.2d 1413, 1422 (D.C. Cir. 1983); see Dill v. INS, 773 F.2d 25, 28 (3d Cir. 1985) ("on questions of law, administrative judgment is subject to plenary review"). Deference is appropriate only if the agency's interpretation is reasonable and consistent with congressional intent. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S. Ct. 455, 461, 88 L. Ed. 2d 419 (1985); Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 845, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Greater reliance on the EPA's understanding would be proper only if construction of the statute depended on the agency's expertise.
The interpretative dispute joined by the parties raises no issues as to which the agency's expertise is enlightening. Indeed, the sole question is whether Congress intended to predicate revision of the Right-to-Know list, even to correct clerical errors, upon the EPA's determination of the toxicity of the substance involved.
EPA contends that no deletion is permissible in the absence of such a finding by the agency regardless of the absence of any existing or historical evidence indicating that the substances pose any health hazard. A.L. Labs and CMA argue essentially that the proscription in section 11002(a)(4) regarding revision of the Right-to-Know list cannot reasonably apply to substances whose appearance on the list is the result of a purely clerical error.
The Right-to-Know Act was adopted by Congress to aid local communities in planning for the accidental release of extremely hazardous chemicals and protecting against injury to persons and property. See H.R. Rep. No. 253, 99th Cong., 2d Sess. 60 (1986). The mandate in section 11002(a)(2) that the substances initially subject to the reporting and planning requirements of the Right-to-Know Act be those on the CEPP list was no more than a mechanism for expediency. There is no indication in the law or legislative history that Congress gave any consideration to the identity of substances on the list or the method by which the list was compiled. The only conclusion properly drawn from the sparse legislative history is that Congress' goal was simply to protect local communities from hazardous chemicals.
Part of Congress' scheme for protecting local communities was to prevent the revision of the Right-to-Know list until the EPA had considered the short- and long-term effects of substances proposed for addition to or deletion from the list. 42 U.S.C.S. § 11002(a)(4) (Law. Co-op. 1987). EPA argues that to comply with this scheme it may not delete any substance from the list until such effects have been determined and evaluated. However, this argument is inconsistent with Congress' goal in enacting the Right-to-Know Act since bacitracin and the esters did not appear on the CEPP or Right-to-Know list because of their toxicity; rather, they appear on the lists because of a clerical error or flawed scientific methods. Consequently, it is illogical to apply the precautions of section 11002(a)(4) to these substances.
EPA's refusal to remove bacitracin and the phthalate esters from the Right-to-Know list is arbitrary, capricious, and contrary to the provisions of the Right-to-Know Act. The agency's interpretation of section 11002(a)(4) of the Act is based on an irrational construction of congressional intent and is not based on the agency's expertise in environmental matters. See Motor Vehicle Manufacturers, 463 U.S. at 43; Chenery, 318 U.S. at 95; Prill, 755 F.2d at 947. Similarly, the agency's action cannot be deemed "reasoned" in the absence of any evidence indicating that bacitracin or the esters is acutely toxic or that Congress intended to require the EPA to evaluate the toxicity of every known substance or even substances appearing on the SARA list through clerical error. See Farmers Union, 734 F.2d at 1499-1500. Because the EPA's interpretation of section 11002(a)(4) is patently unreasonable, deference to its interpretation is not warranted. Riverside Bayview, 106 S. Ct. at 461.
The material facts in this case are numerous but undisputed. See Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (court must determine whether genuine issue for trial exists). EPA insists that bacitracin and the phthalate esters do not appear on the Right-to-Know list because of a clerical error, but the argument is at most inartful dodging of the facts rather than a genuine dispute. The argument implausibly ascribes to Congress an intention to immunize or ignore any errors, clerical or otherwise, in the CEPP list from which the Right-to-Know list was copied. Indeed, there is no evidence in the legislative history that Congress was aware of such errors. In this situation, Congress' silence conveys a clear message: by equating the CEPP and Right-to-Know lists, Congress did not intend to impede correction of clerical errors which cause the lists to be inaccurate. EPA's contention that there is also dispute as to the toxicity of bacitracin and the esters must also be disregarded as too little too late. EPA did not rely on any evidence of toxicity in refusing to remove these substances from the Right-to-Know list. Further, EPA offers only vague allegations that some such evidence exists and no reasonable jury could find from these allegations that either substance is extremely hazardous. See Anderson, 106 S. Ct. at 2512.
The remaining issues in this case are ones of law, and summary judgment is appropriate. Id.; Fed. R. Civ. P. 56(c). As the foregoing discussion explains, the Right-to-Know Act was intended by Congress to protect local communities from emergency releases of hazardous substances; it was not intended to perpetuate clerical errors. A substance as to which there is no evidence of toxicity does not belong on the Right-to-Know list. EPA's contention that it has no choice but to consider the possible toxicity of bacitracin and the phthalate esters is untenable. Were EPA to follow the congressional mandate it perceives in section 11002(a)(4) it would have to study these substances indefinitely since it is not possible to determine with absolute certainty that a substance is not toxic. Instead, section 11002(a)(4) makes sense only when applied to substances for which evidence of toxicity exists and supports their appearance on the Right-to-Know list.