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HULS AMERICA, INC. v. BROWNER

June 21, 1995

HULS AMERICA, INC., Plaintiff,
v.
CAROL M. BROWNER and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.



The opinion of the court was delivered by: THOMAS F. HOGAN

 I. BACKGROUND

 EPCRA was signed into law in 1986 at Title III of the Superfund Amendments and Reauthorization Act of 1986. Pub L. No. 99-499, 100 Stat. 1613 (1986). Congress passed the law to encourage state and local planning for accidental releases of certain chemicals called "extremely hazardous substances" (EHSs). Pursuant to 42 U.S.C. § 11002, a facility must notify the relevant state agency of the presence of an EHS in excess of its "threshold planning quantity."

 Congress mandated that the original EHS list be identical to the list EPA published for its Chemical Emergency Preparedness Program (CEPP). Isophorone diisocyanate (IPDI) was one of the chemicals originally designated through CEPP. As a result, IPDI was automatically designated as an EHS when EPCRA became law in 1986. The original EHS list was published in the Federal Register on November 17, 1986. 51 Fed. Reg. 41,570. Congress authorized EPA to revise the EHS list under the criteria set forth in EPCRA. These criteria are the subject of the action between Huls and EPA.

 On November 25, 1992, Huls petitioned EPA to remove IPDI from the EHS list. Huls is one of the leading marketers of IPDI in the United States. Huls contended that leaving the chemical on the EHS list would create significant reporting burdens for its customers and would generate a public misconception that IPDI poses serious and immediate risks if released.

 On October 12, 1994, EPA published a notice in the Federal Register denying Huls' petition to remove IPDI from the EHS list. 59 Fed. Reg. 51,816. Huls then sought judicial review by instituting this action. In Huls' motion for summary judgment, Huls argues that EPA acted contrary to the plain meaning of EPCRA by denying the petition. In addition, Huls claims that EPA's decision to keep IPDI on the EHS list was arbitrary and capricious.

 II. ANALYSIS

 A. Standard of Review

 The plaintiff's suit is governed by the Administrative Procedure Act (APA). The Court can only set aside EPA's decision to keep IPDI on the EHS list if the Court finds that EPA acted in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A). The Court must consider whether the agency's decision was based on a consideration of the relevant factors and whether the agency made a clear error in judgment. The Court cannot substitute its own judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). This standard is highly deferential to the agency and rests on a presumption that the agency's action was valid. International Fabricare Institute v. EPA, 297 U.S. App. D.C. 331, 972 F.2d 384, 389 (D.C. Cir. 1992).

 B. Motions for Summary Judgment

 A court may grant a motion for summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of showing that no genuine issue of material fact exists. In the alternative, the moving party can demonstrate that the opposing party has failed to establish an essential element of the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When the moving party has met its burden, the burden of proof shifts to the nonmoving party to demonstrate specific facts that show no genuine issue for trial exists. Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1984). In reviewing the evidence, a court must draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). As a result, summary judgment is appropriate only when "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. . . ." Matsushita, 475 U.S. at 587.

 C. Consideration of the Plaintiff's ...


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