ELR Citation: ELR 21503
No(s). 95-0042 (D.D.C. Jun 21, 1995)

The court holds that the U.S. Environmental Protection Agency (EPA) properly denied a chemical manufacturer's petition under the Emergency Planning and Community Right-to-Know Act (EPCRA) to remove its product isophorone diicocyanate (IPDI) from the Act's extremely hazardous substances (EHS) list. EPCRA §302(a)(4) provides that EPA's revisions to the EHS list must consider the "toxicity, reactivity, volatility, dispersibility, combustibility, or flammability of a substance." EPA only considered the toxicity factor in deciding not to remove IPDI from the list. The court holds that EPA's interpretation that §302(a)(4) does not require it to consider all six of the statutory factors when amending the EHS list is reasonable and entitled to deference. The word "or" normally has a disjunctive connotation that only requires EPA to examine one or some of the statutory factors. The court next holds that EPA did not act in an arbitrary and capricious manner by relying only on the inhalation toxicity data and on animal studies by the National Institute of Occupational Health and Safety to deny the petition. EPA presented credible evidence that IPDI can be toxic when inhaled, even at low concentrations, and its analysis of the scientific and technical information on IPDI is reasonable and entitled to deference.

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

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