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Troy Corp. v. Browner

ELR Citation: 27 ELR 21548
Nos. 96-5188, 120 F.3d 277/(D.C. Cir., 08/01/1997)

The court holds that the U.S. Environmental Protection Agency (EPA) arbitrarily and capriciously listed Bronopol and DMP on the toxic release inventory, but acted properly in adding 284 other chemicals to the list. The court first rejects appellant chemical groups' argument that EPA acted contrary to the Emergency Planning and Community Right-to-Know Act's (EPCRA's) statutory criteria for listing chemicals and acted arbitrarily and capriciously in not complying with its own guidelines. Because the decision rested on an evaluation of complex scientific data within EPA's technical expertise, the court shows considerable deference to EPA. While the court finds that the record of some of the chemical reviews may be "brief" or "sketchy," the statutory standard does not require that the evidence to meet it be voluminous. The court next holds that EPA's failure to consider the likelihood of exposure of humans to each candidate chemical is not a violation of EPCRA. It is not the case that the congressional language mandating listing of a chemical that "is known to cause or can reasonably be anticipated to cause in humans" the enumerated adverse effects unambiguously incorporates the likelihood of contact between humans and the chemicals. Because the wording of the statute is ambiguous, the most that can be required of the administering agency is that its interpretation be reasonable and consistent with the statutory purpose. The court also holds that EPA's exposure policy is exempt from the Administrative Procedure Act's notice-and-comment requirement. EPA's exposure policy mentioned in the preamble of its final rule was not a rule; it merely informed the public that the agency would exercise its discretion by considering exposure only for low toxicity chemicals.

Next, the court holds that EPA acted arbitrarily and capriciously in listing Bronopol as a chronic toxicant. EPA failed to explain its departure from Agency precedent. Previously, EPA considered the length of the toxicant's effect, not the length of the exposure, to be critical; therefore, a particular effect could be either chronic or acute. Here, EPA considered the length of exposure to be critical and, thus, an effect could be both chronic and acute. The court then holds that EPA acted arbitrarily and capriciously in listing DMP. EPA's reliance on tests that were largely undocumented violates the Agency's guidelines. The court, therefore, remands EPA's listing decisions on Bronopol and DMP.

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

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

Before Ginsburg and Tatel, JJ.