P. 18 ;00 From: 

# F-oI3

UNITED STATES DISTRICT COURT FOR TUX DISTRICT Of COLUMIA

THE FERTILIZER INSTITUTE #



## Plaintiff, r I V. Civil 

## Action No. 98-1067 (OK) CAROL BROWNER, ET AL ., FILED

Defendants . 

# APR 15 1999 Wayww"OTMMIMM NMR-umum OPINION UADGINCI CMf f 

### The Fertilizer Institute (11TFI11 or "Plaintiff") brings suit against the Environmental Protection Agency ("EPA") and its Administrator Carol Browner under § 313 of the Emergency Planning and Community Right-to-Know Act of 1986 ("EPCRAII), codified at 4 2

11023 ("S 313-) . Plaintiff challenges Defendants' decision denying TFI's petition to delist phosphoric acid (H3PO4) from the Toxic Release Inventory List
.This matter is now before the Court on the parties' crossmotions for summary judgment . Upon consideration of the motions, oppositions, replies, and the entire record herein, for the reasons discussed below, Plaintiff ' a Motion for Summary Judgment [#12] is granted in 'part and denied in part, and Defendants' Motion for summary judgment C#143 is granted in part and denied in part .



# C602-7p. 2

aaclcground' In 1986, Congress passed EPCRA as a means of informing states, local communities, and the general public of the release of toxic chemicals into the environment . In doing so, Congress, objectives were to aid research, data gathering, and the development of local or national regulations and guidelines for such chemicals . 42 U . S. C. § 11023 (h) . Under 5 313, any facilities covered under EPCRA must annually submit toxic chemical release forms to the EPA, listing which of the covered chemicals they released into the environment, and in what quantities . The EPA then compiles this information into a nationwide list, called the Toxic Release Inventory List, which is made available to the public . Congress originally placed 309 chemicals on the Toxic Release Inventory List, including phosphoric acid . 42 U . S . C . S 11023 (c) Congress also authorized the EPA to add or delete chemicals frok i~ this list, either on its own initiative, 42 U - S.C. S 11023 (d) (1) , or through petitions submitted to the agency by state Governors or the general public . 42 U .S - C . 5 11023 (e) . Chemicals may be added or deleted to the list pursuant to 42 U. S. C. S 11023 W

Pursuant to Local Rule 108(h), 11[iln determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion ." The Court thus takes these facts from the parties' Statements of Material Facts Not in DA.spute . Furthermore, since this case is a review of an administrative agancy,s decision, the Court alao relies on facts contained in the Administrative Record ("A .R .") . 2p. 3 APP-19-99 18-N ~rom :

(2) Additions A chemical may be added if the Administrator determines, in [her] judgment, that there is sufficient evidence to establish any one of the following : (A) The chemical is known to cause or can reasonably be anticipated to cause significantadverse 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-- W cancer or teratogenic effects, or (ii) serious or irreversible-- (1) reproductive dysfunctions, (M neurological disorders , (iri) heritable genetic mutations, or (IV) other chronic health effects . (C) The chemical is known to cause or can reasonably be anticipated to cause, because of-- W its toxicity, (ii) its toxicity and persistence in the

environment, or _(iii) its toxicity and tendency to

bioaccumulate in the environment , a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this section . The number of chemicals included on the list described in subsection (c) of this section on the basis of the preceding sentence may constitute in the aggregate no more than 25 percent of the total number of chemicals on the list . A determination under this paragraph shall be based on generally accepted scientific principles or laboratorytests, or appropriately designed and conducted epidemiological or other population studies, available to the Administrator . (3) Deletions A chemical may be deleted if the Administrator determines there in not sufficient evidence to establish any of the criteria described in paragraph (2) . This suit concerns the scope of 42 U. S. C. 5 11023 W (2) (C) (or I'S 313 (d) (2) (C) 11) , the "environmental effects" criterion

.

3p. 4

EPA undertakes a three-step analysis under 9 313 (d) (2) (C) before concluding that a chemical should be added or retained of

. the list : first, it determines whether the chemical is inherently toxic ; second, it determines whether the chemical, because of its toxicity, toxicity and persistence in the environment, or toxicity and tendency to bioaccumulate in the environment, may cause a significant adverse effect to the environment ; third, it determines whether the significant adverse effect is of sufficient seriousness to warrant reporting on the list . Def9 . 1 Mem . at S . EPA will consider a chemical's potential for exposure in making its final deci'S'ion under I 313(d)(2)(C) only for chemicals "that are low or moderately ecotoxic but do not induce well-documented serious adverse effects ." Addition of Certain Chemicals ; Toxic Chemical Release Reporting ; Community Right-to- Know, 59 Fed . Reg . 61,432( , 61,441 (Nov

. 30, 1994)
. EPA's policy is that exposure aseessmentf i' are unnecessary under 5 313 (d) (2) (C) for chemicals that are "highly ecotoxic or induce well -established adverse environmental effects ." UL On November 9, 1990, TFI filed a petition with EPA to delist phosphoric acid from the Toxic Release Inventory List .' EPA denied 2 On December 14, 1989, Ecolab, Inc . (a non-party to thi s suit) filed a similar petition with EPA, which it withdrew before EPA ruled on it . EPA nevertheless published a notice, for informational purposes, reporting the results of its technical review and evaluation of the petition, as well an the results of an exposure assessment done on phosphoric acid . EPA determined that phosphoric acid could not be listed under either S 313(d)(2)(A) or 5 313 (d) (2) M , and that phosphoric acid "exhibits low direct toxicity" to freshwater organisms . Phosphoric Acid ; Toxic Chemical Release Repartingi Community Right-to-Know, 55 Fed . Reg . 2S, 876, 25,8?7 (June 25, 1990) EPA determined, however, that because 4p. 5 APR-1-99 rum:

TFVS petition on January 23, 1998 .3 EPA's reaaoning waa that phosphoric acid, when discharged into waters which contain nitrogen and which are open to sunlight, "can reasonably be anticipated to cause significant adverse effects on the environment, because it has Ifthe potential to cause increased algal growth leading to eutrophication . . . [and i1n excess . . . can cause extreme algal blooms ." Phosphoric Acid ; Toxic Chemical Release Reporting ; Community Right-to-Know, 63 Fed . Reg . 3566, 3567 (Jan . 23, 1998) . In its final decision, EPA concluded that the effects of eutrophication on aquatic ecosystems was serious enough to warrant retaining phosphoric acid on the Toxic Release Inventory List, and thus denied TF11s petition .' Id , Eutrophication is the process by which waters are enriched with essential nutrients, one of which is phosphorous . Phosphoric acid is readily converted into phosphates when nitrogen and sunlight are present . The phosphates then stimulate the growth of phosphoric acid "may reasonably be expected to lead to eutrophication", it should remain listed under 5 313 W (2) (C) , and EPA would therefore likely have denied Scolable petition had Scolab not withdrawn it . LL 3 EPA offered no explanation for why it took over seven years to rule on TFI's petition . 4 Because EPA took so long to act upon TFIIS petition, tne International Food Additives Council (01FAV) conducted its own exposure assessment on phosphoric acid, which it submitted to EPA in 1996 as,a comment to TFI's petition . IFAC's report reviewed EPA's 1993, toxic chemical release data on phosphoric acid, and found that only four facilities which reported they released phosphoric acid released it in such quantities that could cause eutrophication (50 parts per billion) . Despite that, IFAC also found that all four facilities discharged into waters that lacked nitrogen, and that three of the four discharged into waters on the lower Mississippi River, whose turbidity would retard algae growth .p. 6

APR- 19-99 ~ 8 P , old:



### algal blooms . This algae growth depletes the oxygen in the water as the algae die and decay, causing the killing of fish and other aquatic fauna and flora . Additionally, certain algal blooms whose growth is stimulated by eutrophication secrete toxins that can become sufficiently concentrated to contaminate drinking water, leading to illness or death to fish, birds, and mammals (especially livestock) that drink from the water

. 11 . Standard of Review All parties recognize that the Court is bound by a highly deferential standard of review for agency action . Under the Administrative Procedure Act (11APA") , an agency' a action may be set aside only if it is narbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

. 0 5 U - S.C. S 706 (2) (A) Tn exercising its narrowly defined duty under the APA, the Cour must consider whether the agency acted within the scope of its legal authority, adequately explained its decision, based its decision on facts in the record, and considered the relevant factors

. mawgh y .- Oreggn Natural nuxrom rolincil, 490 U.S . 360, 378 (1989) ; citizgng to preservC Overton Park, Inc

. v . Y~Qlge, 401 U .S . 402, 415-16 (1 .971) The Court must defer to the agency's expertise, particularly with respect to decinion-making which involves Na high level of technical expertise" . M&XILb, 490 U.S . at 377 ; Qtata ilf Maki Yogk

. V. ReiJ4, 969 F.2d 1147, 1150 (D .C . Cir

. 1992) ("We are particularly deferential when reviewing agency actions involving policy decisions based an uncertain technical information .")

. 

### 6p. 7

APR- 19-99 I :Cz From:

Ill . 

## Analysi s TFI challenges EPA's denial of its petition on two grounds : substantively, arguing that EPA has read "toxicity" out of the statute ; and procedurally, arguing that EPA arbitrarily and capriciously strayed from its policy of performing exposure assessments in cases such as this one, and failed to adequately explain its decision . EPA argues that its denial of TFII9 petition was proper because phosphoric acid is inherently toxic, and it adequately explained and justified its decision not to perform an exposure assessment . A . Toxicity in order for phosphoric acid to meet the listing requirements for the environmental effects criterion, it must, at a minimum, be toxic, Deapite the fact that both parties argue that the meaning of "toxicity" is clear, they come to different conclusions an to whether phosphoric acid meets the definition . TVI argues that for a chemical to be toxic, the adverse environmental effects must be dixectl attributable to the chemical's toxicity, and not dependant on any number of variables . EPA argues that the meaning of toxicity is not so constrained and simplistic . EPA notes that in the scientific community, there is a general consenoue thattoxicity encompasses multi-step toxic effects, as well as the onestep toxic effect to which TFI refers . What emerges clearly from this dialogue between the parties is not the meaning of "coxicity",p. 8

but that its meaning is both ambiguous and ill-defined . 5 Such ambiguity requires the Court to apply a Cjbayro analyslL to EPA's interpretation of the statutory phrase "toxicity" . Chgvran, U .S .A ., Tnc- y . Natur&l RAmources Defgage Council, Inc .,, 467 U .S . 837 (1984) . ChCyZ :on requires application of a two-step test when a court reviews an agency's construction of a statute which it administers . First, traditional rules of statutory construction must be used to determine whether Congress has spoken to the precise question at issue . Natural Raae5urcg fense Council, Inc . v . Browner, 57 F .3d 1122, 1125 (D .C . Cir . 199S) . If the"precise question has been addressed, then the Court must give effect to the clearly expressed intent of Congress . Id . If Congress is silent on the issue and the statute is ambiguous, the second step requires the court to uphold the agency's interpreta tion of the statute so long as it is a permissible constructioni .1d. The Court must defer to the agency's reading of the statute if it is "reasonable in light of the Act's text, legislative history, and purpose ." Southern ral- R .Aison Co . y. FREC, 116 F .3d 507, 511 (D .C . Cir . 1997) . It is undisputed that the statute contains no definition of "toxicity" . Furthermore, what little legislative history does exist on EPCRA is irrelevant to thin issue . It is true, as EPA argues, that the House Conference Report on EPCRA lists various

The briefs submitted by the parties were of very little help in terms of providing a definitive definition for thie significant scientific term . Although EPA submitted well-accepted scientific treatioes on toxicology, they did not addresa the differences in the parties, differing definitions of the term
. 8P. 9

environmental developments that would be considered significant adverse effects . H .R . Rep . No . 99-962, at 295 (1986), reprinted in 1986 U .S .C .C .A .N . 3276 . What is significant, however, is that the Report was written before the final version of EPCRA was drafted, and before the term "toxicity" was even added to the environmental effects criterion in the Senate version of the bill . moreover, the listing in the Report merely refers to significant adverse environmental effects, not a definition of toxicity . In short, the House Conference Report sheds no light whatsoever on Congress, understanding of the definition of toxicity . 

### Congress, silence therefore requires the Court to move to step two of the Chenon analysis, to determine whether EPA's interpretation of *toxicity,, an encompassing Nindirect toxicity", is a permissible construction of the statute . we must first discern what EPA means by "indirect toxicity" . As EPA defines it in its briefs, a chemical is *indirectly toxico when, because of its inherent characteristics, its toxic effects are felt through a well -established chain of events, rather than a direct, one-step process . Phosphoric Acid, 63 Fed . Reg . at 3569 ; Defs ., Mem . at 1 ; Defs .1 Reply at 5 . Since EPCRA requires EPA to use "generally accepted scientific principles" in making listing or delisting determinations, EPA has proffered several scientific treatises explaining that the toxic effects of some chemicals may appear only after a chain of events has occurred
. See, e . g..,

"A Qnullls Tnwical^ay, Thp RASin Rcience of Pajeong 14, 35-36 W11 ed . 1996), Simon A . Levin, Mark A. Harwell, John R

. 9P. 10 APR- ;9-99 ~b :ug r!,m ,



### Kelly, and Kenneth D. Kimball, EcoLaxicoloWj : Proj2leMn AnR Innroanhan 1 (1988) . Even though EPA claims that it is defining toxicity In terms of its indirect effects, a careful review of EPA's decision on TFI's petition reveals that EPA has in fact defined "toxicity,, in terms of "significant adverse effects" on the environment . While it is undisputed that under certain circumstances, phosphoric acid has serious and significant adverse effects on the environment, EPA leaps from this fact to the conclusion that phosphoric acid is inherently toxic under all circumstances

. EPA is, in effect, flipping the causation arrow : instead of saying (as the statute requires) that phosphoric acid has significant effects on the environment becaums 2f its toxicity, EPA is saying that phosphoric acid is toxic bgcause of its significant adverse effects on thenvironment

. 6 By using this def inition, EPA effectively reads th, term "toxicity" out of the statute . This is not a permissible construction of the statute

. An examination of the process of eutrophication illustrates how EPA has equated Otoxicity" with "significant adverse effects" . Eutrophication occurs when nutrients such as phosphates are added 6 Under basic principles of logic, deductive arguments are made in the form "if a, then b", or "a -+ bl . Robert C . Solomon, Tritroducina PhIlong at 20 Ord ed

. 1985) . If the premise "a, is true, then, the conclusion "b" necessarily follows
. if the argument a - b is true, it is fallacious to say a *- b . ZA, at 25-26 . In this came, EPA Is analysis under S 313 (d) (2) (C) must proceed " if the chemical in toxic, then significant adverse effects occurn

. EPA in, however, "flipping the causation arrow" by making the conclusion a promise (if eignificant adverse off ects occur) , and the premise a conclusion (then the chemical is toxic) 10

### P.

to waters exposed to plentiful sunlight and nitrogen . This combination stimulates the growth of algae, which in turn depletea the oxygen in the water, which leads to fish kills and harma aquatic flora and fauna . However, phosphoric acid becomes a nutrient for algae only under certain conditions (if nitrogen and sunlight are present) ; it is the growth of algae--an intervening cause--not the discharge of phosphoric acid, that creates the "toxic" effects in aquatic ecosystems . Although it is undisputed that this process creates significant adverse environmental effects, they are not due to any inherent property of phosphoric acid that could be described as "toxic", i .e ., poisonous . 7 in contrast, chlorofluorocarbons (CFCs) and volatile organic compounds (VOCs), which EPA had previously declined to delist, have toxic effects that, though indirect, are inevitable and not dependant an any variables or intervening causes-' The chemica l I Throughout its briefs and at oral argument, EPA used water as an example to explain how chemicals are selected for inclusion on the Toxic Release Inventory List . Specifically, EPA argued that water can have a significant adverse effect on the environment (because of flooding), and the effect can be serious enough to warrant listing (because flooding causes great damage to the environment) , but listing under the environmental effects criterion requirea one more element, which water lacks : toxicity . This example, however, illuminates what EPA is attempting to do with phosphoric acid

. EPA has given plentiful examples of the significant adverse effects phosphoric acid can have on the environment . It has not, however, shown how these effects result from any direct or indirect toxic properties of phosphoric acid
. To use EPAI's, example, saying that phosphoric acid in toxic in akin to saying that water is toxic

.

ozone Depleting Chemicals ; Toxic Chemical Release Reporting ; Carmnunity Right-To-Know ; Addition of Chemicals, S5 Fed

. Reg

. 31S94 (August 3, 1990) ; Cyclohexane ; Toxic Chemical Release Reporting ; Conununity Right-to-Know, 64 Fed . Reg

. 10668 (March 15, 1989) ; Ethylene and Propylene ; Toxic Chemical Release Reporting ; 11p. 12 APP-19-99 1 :0 prom,



### reactions these chemicals undergo in the atmosphere concribute tothe depletion of the ozone layer and the creation of air pollutants, which in turn have negative impacts on human health and the ozone layer . For CFCs and VOCs, the toxic effect in caused by chemicals that are by-products of the original chemical ; the same can hardly be said of phosphoric acid . Algae is not a by-product of phosphoric acid ; phosphoric acid is a nutrient for algae .' The steps by which phosphoric acid can cause significant adverse effects on the environment are not pre-determined or inevitable as with CFCs and VOCs . Since the effects of phosphoric acid can, furthermore, be avoided by lack of sunlight, lack of, nitrogen, or turbid waters, those effects are dependant on several variables that may or may not exist in every situation where phosphoric acid is being discharged into waters . In addition to the fact that EPA uses the meanings o t "toxicity" and "significant adverse effectso interchangeably, thus reading "toxicity" out of the statute, there is yet another reason why EPA's definition of "toxicity" is erroneous : it makes much of 5 313 (d) (2) (C) unnecessary . In its final decision on TF11s petition, EPA fails to identify under which statutory phrase in 5 Community Right-to-Know, S4 Ped. Reg . 4072 (January 27, 1989) . 

### 9 EPA'argues that it is erroneous to assume that a chemical cannot be both a nutrient and a toxin at the same time . In response, EPA lists several nutrients essential for human or animal growth that can, in certain circumstances, be toxic : cobalt, manganese, selenium, arsenic, and mine . EPA's Reply at 9-9 . EPA has failed, however, to address the question of why these other nutrients are not similarly liated on the Toxic Release inventory List because of their allegedly toxic effects .. 12p. 1 3

313 (d) (2) (C) it in classifying phosphoric acid : toxicity, toxicity and persistence in the environment, or toxicity and tendency to bioaccumulate . Since there is no mention anywhere of phosphoric acid's persistence in the environment or tendency to bioaccumulate, it can only be assumed that EPA meant to classify it because of its toxicity alone . However, if EPA is allowed to define any chem1cal with significant adverse environmental effects as "inherently toxic', simply because of its adverse environmental effects, EPA will never need to consider whether chemicals should be listed under either 5 313(d)(2)(C)(ii) or (iii), making those ?rovisions superfluous . It is a well-established rule of statutory construction that courts must read a statute to give effect to each provision while preserving the statute's sense and purpose

. Halygrgon M . Slater, 129 F .3d 180, 185 (D .C . Cir

. 1997) . Courts are obliged to give effect, to the extent that it is possible, to every word in the statute, because "Congress cannot be presumed to do a futile thing .,, ZA_ EPA's definition of "toxicity" violates this rule by undermining the purpose of the statute, which is to list only chemicals with actual toxic effects, and makes two of the statutory provisione unnecessary . RPA's argument on the meaning of "toxicityO leads to the conclusion that Congress did a futile thing in including §5 313 (d) (2) (C) (1i) and (iii) in the statute . Thus, under step two of the Chevron analysis, EPA's definition of atoxicity* is erroneous and not a permissible construction of the statute . Consequently, Plaintiff I a Motion for summary Judgment is
13p. 14 ArR- I 3-4~



### thus granted, Defendants, Motion for Summary Judgment on this ianue is denied, and EPA's decision on TFI1s petition is reversed
. U . Uposure Assessment In making its determination on TFI's petition, EPA did not do an exposure assessment on phosphoric acid, as it had for Ecolab(s 1990 petition, nor did it reference the exposure assessment submitted to it by IFAC . TF1 argues that EPA's decision not to do an exposure assessment contradicted EPA's stated policy on conducting exposure assessments, and that EPA did not adequately justify its decision . SPA argues that it is unnecessary to perform an exposure assessment for phosphoric acid, and that it adequately justified its position . 

### In asserting that EPA did not justify its decision to not perform an exposure assessment, TFI relies on the fact that EPA hak' admitted that phosphoric acid exhibits low direct toxicity . TF1 argues that EPA's policy, which states that exposure assessments will be done for chemicals "that are low or moderately ecotoxic but do not induce well-documented serious adverse effects", mandates that an exposure assessment be done for phosphoric acid, that EPA erred in not doing one, and that EPA did not adequately justify its decision . Addition of Certain Chemicals, 39 Fed . Reg . at 61,441

. Finally, TFI argues that EPA confirmed the appropriateness of doing an exposure assessment for phosphoric acid when it 'did one for Ecolable petition, and again when it announced its policy on

14p. 15 APR-19-99 18 :04 ~rom:



### exposure assessmen a-Lo EPA f irst points out that the decision to do an exposure assessment for chemicals being considered under the environmental effects criterion is discretionary and only done for certain kinds of chemicals . our Court of Appeals confirmed EPA' a stance in IrDy Corp- y. Browner, 120 F-3d 277, 287 (D .C . Cir

. 1997) : 

### The EPA's exposure policy merely informed the public that the agency would exercise its discretion by considering exposure only for low toxicity chemicals . The EPA did not thereby curtail this discration ; it did nothing more than clarify its own position . The policy does not impose rights or obligations or bind the agency to a particular result . EPA also argues that it justified its decision not to do an exposure assessment by stating that its policy warranted such assessments only where the chemical is low or moderately ecotoxic , does not induce well-documented serious adverse effects . EPA concluded that phosphoric acid induced well -established adverse effects (through eutrophication), and therefore an exposure assessment was unnecessary . Phosphoric Acid, 63 Fed . Reg . at 3570 . EPA also argues that the fact that it previously did an exposure assessment for phosphoric acid is irrelevant not only because that

10 The statement TYI relies on reads : EPA has reviewed its past listing decisions in light of this clarification [of the exposure assessment policy), and believes that its prior listing determinations have been consistent in the consideration of expos=e in 31 of the 32 liating/delisting determinations previous to this action, including a number of deletions of low toxicity chemicals that Congrees placed on the initial EPCRA section 313 list . Addition of Certain Chemicals, 59 Fed . Reg . at 61,442 .

### p. 16

assessment had been done before EPA formally announced its policy, but also because EPA had not relied on it in coming to the conclusion that phosphoric acid should remain on the list . EPA finally argues that the statement that TFI relies on does not make its case in light of the fact that it merely states that prior decisions were consistent with this new policy, and in light of the fact that the Ecolab exposure assessment was not a listing/delisting determination . 

### EPA's policy appears to require exposure assessments for chemicals being considered under 5 313(d)(2)(C) only when theadvefee environmental effects of the chemical are not wellestablished . Neither party disputes the adverse effects of phosphoric acid to the environment, and thus EPA's decision not to perform an exposure assessment in this case was consistent with its policy . The relative toxicity of phosphoric acid is therefo~, irrelevant . Furthermore, EPA adequately justified its decision when it explained, in its final decision on Tpr,s petition, that it was not doing an assessment because the effects of phosphoric acid are well -established . Finally, the fact that EPA performed an exposure assessment on Ecolable petition is irrelevant, since that decision was rendered before EPA formulated and stated its official policy on exposure assessments . Consequently, Plaintiff's Motion for Summary Judgment on EPA's failure to do an exposure assessment is denied, and Defendants, motion for Summary Judgment on this issue is granted .
16p. 17 APR-19-99 !8 :U4



## IV. conclusion EPA's definition of "toxicity" is not a permissible construction of S 313 of EPCRA, reads "toxicity" out of the statute, and makes much of 5 313 (d) (2) (C) superf luous . EPA did, however, adequately justify its decision to not perform an exposure assessment in this case . As a result, Plaintiff's Motion for Summary Judgment [#121 is granted in part and denied in part, and Defendantal Motion for Summary Judgment E#141 is granted in part and denied in part . An Order will isaue with this Opinion . 1.

Dat Gladys Kese l United States District Court Judge Quifis Eric G . Hoatetler Peter L . Gray U .S . Department of Justice McKenna & Cuneo, L .L .P . Environmental Defense Section 1900 K Street, NW P .O .- Box 23986 Washington, DC 20006 Washinaton, DC 20026-3986p. 18

UNITIM 3TATX8 D18TRICT COURT FOR TNX DISTRICT OF COLMMIA THU VXRTXLXZXR XXXTITUT

Plaintiff,
V. Civil Action No . 98-1067 (QK) CAROL BROWNER, XT AL ., 

# "If F . D Defendants . APR 15 1999

The Fertilizer Institute brings suit against the Environmental Protection Agency and its Administrator Carol Browner under the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S .C. 5 11023 . Plaintiff challenges Defendants, decision denying TFI19 petition to delist phosphoric acid (H3P0J from the Toxic Release inventory List

.This matter is now before the Court on the parties, crossmotions for summary judgment (#12, #14) . Upon consideration of the motions, oppositions, replies, and the entire record herein, for the reasons discussed in the accompanying Memorandum Opinion, Plaintiff's Motion for summary Judgment [#12) is granted in part and denied in part, and Defendants, Motion for Summary Judgment [#141 is granted in part and denied in part

.

Dat,d Glaclys KeselgIr United Statef District Court JudgeP. 19 APR-19-99 18 :05 e'ww'

Qgwism ta L 

### Eric G . Hostetler Peter L . Gray u .S . Department of Justice McKenna & Cuneo, L .L .P . Environmental Defense Section 1900 K Street, NW P .O . Box 23986 Washington, DC 20006 Washington, DC 20026-3986