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Dayton Power & Light Co. v. Browner

ELR Citation: 29 ELR 21362
Nos. Civ. A. 97-3074(JLG), 44 F. Supp. 2d 356/48 ERC 2114/(D.D.C., 03/31/1999)

The court upholds the U.S. Environmental Protection Agency's (EPA's) decision to add coal and oil-burning electricity-generating facilities to the list of facilities subject to toxic release inventory (TRI) reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA). The court first holds that EPA's decision to add to the list of facilities subject to TRI reporting requirements electricity generating facilities that combust coal and/or oil for purposes of generating power for distribution in commerce falls squarely within EPA's statutory authority. Congress expressly authorized EPA to encompass facilities into the TRI reporting program to the extent necessary to further the purposes of the TRI reporting program. The only governing standard for adding new classes of industries to the TRI program is the informational purpose and value of reporting the release of toxic chemicals into the environment, and adding electricity-generating facilities serves the informational purpose of EPCRA. EPA's interpretation is also supported by a congressional report on EPCRA. The court next holds that the facilities' argument that they are entitled to the de minimis exemption of EPCRA is not ripe for review. The court cannot carve out a specific extension of the exemption to be applicable only to utility companies after ruling that the expansion of EPCRA is reasonable. In addition, the facilities failed to raise this de minimis issue during the comment period of the rulemaking.

Counsel for Plaintiffs
William M. Bumpers
Baker & Bott
The Warner Theater Bldg.
1299 Pennsylvania Ave. NW, Washington DC 20004
(202) 639-7700

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