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 .

C60 2-7
p. 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 .") .

2
p. 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 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--

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 laboratory

tests, 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 .

3
p. 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 . Def 9 . 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 aseessmentfi'

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 this

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

4
p. 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 .") .

6
p. 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 that

toxicity 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 .

8
P. 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 .

9
P. 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 ef fectively 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 ;

11
p. 12

APP-19-99 1 :0 prom ,

reactions these chemicals undergo in the atmosphere concribute to

the 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 ..

12
p. 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

13
p. 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 ha k'

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

14
p. 15

APR-19-99 18 :04 ~rom :

exposure assessmen a-Lo

EPA first 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 the

advefee 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 .

16
p. 17

APR-19-99 !8 :U 4

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 Kesel

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 20026-3986
p. 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 Judge
P. 19

APR-19-99 18 :05 e'ww '

Qgwism taL

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