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American Chemistry Council v. Johnson

May 10, 2004

AMERICAN CHEMISTRY COUNCIL, APPELLANT
v.
STEVEN L. JOHNSON, ACTING ADMINISTRATOR, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, APPELLEES



Appeal from the United States District Court for the District of Columbia (No. 02cv02349)

The opinion of the court was delivered by: Williams, Senior Circuit Judge

Argued February 18, 2005

Before: EDWARDS and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Section 313 of the Emergency Planning and Community Right-To-Know Act ("EPCRA" or the "Act"), 42 U.S.C. § 11023, 100 Stat. 1613, 1741 (Oct. 17, 1986), is captioned "Toxic chemical release forms." The Act calls for the creation of a Toxic Release Inventory List ("TRI"). EPA acknowledged in the district court that "Congress intended that the TRI would contain only toxic chemicals." EPA Memorandum in Support of Cross-Motion for Summary Judgment at 20 (June 6, 2003) ("EPA's Summary Judgment Memorandum") (internal quotation marks omitted). Congress used the phrase "toxic chemical" 38 times in § 313. A naïve observer might think that the section's sole subject is toxic chemicals. He would be right. A naïve observer might also think it obvious that that was so. He would be wrong.

In 1996, the American Chemical Council petitioned EPA to delete methyl ethyl ketone ("MEK") from the TRI, see Methyl Ethyl Ketone; Toxic Chemical Release Reporting; Community Right-To-Know, 63 Fed. Reg. 15195, 15196 (March 30, 1998) (" MEK Petition Denial "), arguing principally that MEK is not a toxic chemical as that term is used in the Act. Joint Appendix ("J.A.") 96. EPA denied the petition, MEK Petition Denial, 63 Fed. Reg. at 15195, 15199, and the court below granted EPA's motion for summary judgment, holding that the decision not to delist MEK was reasonable, based on a permissible construction of the statute, and neither arbitrary nor capricious. See American Chemistry Council v. Whitman, 309 F. Supp. 2d 111, 116 (D.D.C. 2004). We review a grant of summary judgment de novo. Huls America Inc. v. Browner, 83 F.3d 445, 450 (D.C. Cir. 1996). Because we find EPA's decision is based on an impermissible construction of the statute, we vacate the decision of the district court and remand so that the district court can direct EPA to delist MEK.

MEK is a clear, colorless, low-boiling, highly volatile, and highly flammable liquid. MEK Petition Denial, 63 Fed. Reg. at 15196. A highly effective solvent, it is released in the United States in substantial quantities -- with nearly 80 million pounds released into the air in 1994, and another 100,000 and 50,000 pounds into water and onto land, respectively. See id. at 15198. Although MEK can cause "chronic developmental toxicity at moderately high to high doses," id. at 15198/1, it has "low acute and chronic (systemic) toxicity in that effects occur only at high doses," id. at 15199/1. MEK was on the initial TRI list of 309 chemicals and 20 chemical categories specified by Congress, see 42 U.S.C. § 11023(c); 52 Fed. Reg. 3479 (Feb. 4, 1987), which had consolidated two pre-existing state lists of hazardous chemicals, see 59 Fed. Reg. 1788, 1788 (Jan. 12, 1994).

The Emergency Protection and Community Right-To-Know Act was intended to provide "communities with information on potential chemical hazards within their boundaries" and to facilitate awareness and planning for accidental releases. See Huls America, Inc., 83 F.3d at 446 (citing H.R. Rep. No. 253, 99th Cong., 2d Sess., pt. 1 at 60). The Act establishes state emergency response commissions and local emergency planning committees, 42 U.S.C. § 11001, and requires certain facilities that manufacture, process, or use chemicals on the TRI to provide an estimate of the amount of the chemical present at the facility and the annual quantity of the chemical entering the environment. See 42 U.S.C. § 11023(g)(1); see also 40 C.F.R. § 372.25 (reports required for listed chemical if a facility uses at least 10,000 pounds or manufactures or possesses at least 25,000 pounds annually). Such facilities report this information to EPA, which then makes the information available to the public. 42 U.S.C. § 11023(h), (j).

The Act provides for listing if

(A) The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases.

(B) The chemical is known to cause or can reasonably be anticipated to cause in humans --

(i) cancer or teratogenic effects, or

(ii) serious or irreversible --

(I) reproductive dysfunctions,

(II) neurological ...


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