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Troy Corp. v. Browner

Citation: 28 ELR 20200
No. 96-5188 et al., 129 F.3d 1290/(D.C. Cir., 12/02/1997)

The court denies a chemical manufacturer's petition for a rehearing on the U.S. Environmental Protection Agency's (EPA's) decision to list 3-IODO-2-Propynyl Butyl Carbamate (IPBC) on the Emergency Planning and Community Right-To-Know Act's (EPCRA's) toxic release inventory. The court first holds that the record adequately supports EPA's decision to list IPBC under the applicable statutory and regulatory criteria. EPA demonstrated that the record supports its listing decision on the alternative criterion of "seriousness." EPA points to its record conclusion that the animal studies demonstrated significant increases in the incidence in nonneoplastic pathology of the stomach. EPA's inclusion of this condition within the compass of the term "serious" passes Chevron's deferential test. The court also holds that EPA's decision to list IPBC was not inconsistent with the Agency's decision not to list phosphoric acid under EPCRA. IPBC is not an acid, and its toxicity depends on dose, not concentration.

[A prior decision in this litigation is published at 27 ELR 21548. Briefs and pleadings to this litigation are digested at BRIEFS & PLEADS. 66525.]

Counsel for Appellant
William K. Rawson
Latham & Watkins
1001 Pennsylvania Ave. NW, Ste. 1300, Washington DC 20004
(202) 637-2200

Counsel for Appellees
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Ginsburg, Sentelle, and Tatel, JJ.