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A.L. Labs., Inc. v. EPA

ELR Citation: 18 ELR 20555
Nos. Nos. 87-1991-OG, -2377-OG, 674 F. Supp. 894/(D.D.C., 11/25/1987)

The court holds that the Environmental Protection Agency's (EPA's) refusal to remove bacitracin and phthalate esters from the Emergency Planning and Community Right-to-Know Act (EPCRA) list of extremely hazardous substances was arbitrary and capricious. Both bacitracin and phthalate esters had been included erroneously on EPA's Chemical Emergency Preparedness Program list of 402 extremely hazardous substances; this list was later adopted as the list of substances to which EPRCA's requirements would apply. The court first holds that EPA's decision to defer removal of the substances from the list pending the completion of studies on their long-term toxic effects is ripe for judicial review. The action is final, since EPCRA now imposes significant disclosure and reporting requirements on the plaintiff manufacturing companies. There is no administrative or judicial efficiency to be gained by deferring review. Moreover, EPA's argument would effectively preclude judicial review whenever an agency contemplates additional action. The court then holds that the provision in EPCRA §302(a)(4) prohibiting revision of the right-to-know list pending the completion of various studies does not apply to substances whose appearance on the list is the result of error. The court declines to give deference to the agency's interpretation of EPRCA, since construction of the statute does not depend on EPA's expertise. EPA's argument that no deletion is possible until the agency has determined a substance's health effects is irrational, since Congress' goal was to protect communities from hazardous chemicals and all parties agree that bacitracin and phthalate esters were listed due to a clerical error and flawed scientific methods respectively.

[A related decision is published at 17 ELR 20193.]

Counsel for Plaintiff
James Johnstone, Richard L. McConnell
Wiley, Rein & Fielding
1776 K St. NW, Washington DC 20006-2359
(202) 429-7000

Counsel for Defendant
Caroline Wheling
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Daniel Pinkston
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000