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National Oilseed Processors Ass'n v. Browner

ELR Citation: 26 ELR 21453
Nos. CV 95-763 et al., 924 F. Supp. 1193/42 ERC 1641/(D.D.C., 04/30/1996) aff'd in part and rev'd in part on other grounds

The court holds that the U.S. Environmental Protection Agency's (EPA's) decision to list certain chemicals in the Toxics Release Inventory (TRI) did not violate the Emergency Planning and Community Right-to-Know Act's (EPCRA's) procedural requirements. The court first holds that EPCRA does not require EPA to consider exposure effects when adding chemicals to the TRI under §313(d)(2)(B). EPA's argument that Congress required consideration of exposure when listing chemicals under the acute effects prong of §313(d)(2)(A), but did not require such consideration when listing chemicals under the chronic or environmental effects standards of §313(d)(2)(B) or (C), is both a reasonable and permissible construction of EPCRA. The court then holds that EPA did not act arbitrarily and capriciously in declining to consider exposure in its listing decisions. Examples of listing and delisting decisions in which EPA considered exposure do not prove that EPA unreasonably exercised its discretion, rather, they reflect EPA's policy of considering exposure when the subject chemical is of low toxicity. EPA also adequately explained and documented its decisionmaking process in the administrative record and made a finding that those chemicals that were being added to the TRI under §313(d)(2)(B) were of high or moderately high toxicity. The court also holds that EPA did not engage in post-hoc rationalization to defend its listing decisions. EPA briefs that were longer and more detailed than the explanations of individual listing decisions in the administrative record did not present new, different, or better rationales for the Agency's listing decisions. The briefs were elaborations on the Agency's simple but adequate reasoning contained in the administrative record. The court next holds that §313(d) permits EPA to add categories of chemicals to the TRI where appropriate, without demonstrating that each individual chemical meets the statutory criteria. Finally, the court, deferring to the Agency's expertise in evaluating the merits of individual scientific studies, holds that EPA satisfied the statutory criteria governing the addition of specific new chemicals to the TRI.

Counsel for Plaintiff
David Menotti
Shaw, Pittman, Potts & Trowbridge
2300 N St. NW, Washington DC 20037
(202) 663-8000

Counsel for Defendants
Scott Jordan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000