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Fertilizer Inst. v. Browner

Citation: 29 ELR 20349
No. 97-7494, 163 F.3d 774/(3d Cir., 12/21/1998)

The court upholds a U.S. Environmental Protection Agency (EPA) rule adding nitrate compounds to the toxics release inventory (TRI) under the Emergency Planning and Community Right-To-Know Act (EPCRA). EPA's draft guidelines for listing a chemical on the TRI provide that one consideration in a listing decision is whether chronic health effects result from long-term exposure to the chemical. By contrast, EPA's present listing for nitrate compounds is based on the long-term consequences of methemoglobinemia — a blood condition in infants allegedly caused by nitrate compounds. The court first holds that EPA was not arbitrary and capricious in its listing of nitrates under the "chronic health effects" language of EPCRA § 313(d)(2)(B). 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, and the Agency did not abandon any long-held policy in promulgating this rule. The court then holds that EPA did not use the phrase "other chronic effects" inconsistently within the final rule at issue. In listing two other chemicals under the "acute effects" language of EPCRA § 313(d)(2)(A), EPA considered factors such as the manifestation period and duration of the effect and concluded that these chemicals kill too quickly for their effect to be considered chronic. The court next holds EPA's interpretation of EPCRA's "serious or irreversible" criterion for listing chemicals does not make the term "chronic" superfluous. Not all chronic effects are serious or irreversible. The mere existence of some overlap between terms does not mean that EPA's interpretation of the statutory language is so unreasonable that it cannot be accepted. The court last holds that the group challenging the addition of nitrates to the TRI was apprised sufficiently of EPA's usage of persistence beyond exposure as the basis for the nitrates listing.

Counsel for Appellant
Peter L. Gray
McKenna & Cuneo
1900 K St. NW, Washington DC 20006
(202) 496-7500

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

Before Cowen and Pollak,* JJ.