Los Angeles 

San Francisco 

San Diego 

TO: 

FROM: 

DATE: 

McKenna & Cuneo, LLJ 

Attorneys at Law 

1900 K Stteet, N.W. . Wagton, D.C. 20006-1108 

202-496-7500 . Fax: 202-496-7756 

wwlr..mdrennacuneo.com 

Heather C. Winett 

Syngenta Crop Protection, Inc. 

August 

Peter L. 

29,2001 

Gray 4 

Denver 

Dallas 

Brussels 

Peter L. Gray 

202-496-7707 

peter~gray(c~~mckennacuneo.com 

SUBJECT: Huls America 

On December 12, 1999, representatives of Zeneca Ag Products (now known as 

Syngenta Crop Protection, Inc.) met with EPA to explore the possibility of the Agency 

reconsidering its denial of Syngenta's petition to remove Paraquat dichloride from the 

Iisted extremely hazardous substances ("EHS") under 6 302 of the Emergency Planning 

and Community Right-to-Know Act ("EPCRA"). During the meeting, EPA requested 

that Syngenta explain why fils America, Inc. v. Carol BI-OM~PIPI*, 83 F.3d 445 (D.C. Cir. 

1996) (upholding EPA's denial of a petition to delist isophorone diisocryanate ("IPDI")) 

is not dispositive of the arguments Syngenta advances for removing Paraquat dichloride 

from the EHS list. Set forth below is Syngenta's basis for distinguishing the Huls 

America decision from Syngenta's legal challenge. 

Concurrent with EPA's 1 986 publication of the initial EHS list. the Agency 

published interim criteria for revising the EHS list, stating that it would list an EHS solely 

on evidence of acute toxicity. Specifically, a substance would be listed if shown to 

exhibit oral toxicity (LD50 below 25 mglkg), dermal toxicity (LD50 below 50 mgkg), or 

inhalation toxicity (LC50 below 0.5 mglL). Both Paraquat dichloride and IPDI have 

been shown to exceed the inhalation toxicity criterion in studies of the chemicals. where 

laboratory animals were exposed to respirable aerosols (created with high-pressure spray 

nozzles). Notably, however, Paraquat dichloride and IPDI both have extremely low 

vapor pressures and no determinative boiling point. Thus, outside of artificial laboratory 

conditions, neither chemical poses a "real world" risk of inhalation toxicity. 011 this 
I 

dtlmncys at Law 

Heather C. Winett 

August 29,200 1 

Page 2 

basis, Huls America petitioned EPA to remove IPDI from the EHS. Likewise, Syngenta 

petitioned to deIist Paraquat dichloride; as an alternative to delisting, Syngenta also 

requested that EPA raise the "threshold planning quantity" or "TPQ" from 2 pounds to 

10,000 pounds. EPA rejected both Huls America's petition to delist IPDI and Syngenta's 

petition to delist or to raise the TPQ for Paraquat dichloride, citing the inhalation toxicity 

data in each case. 

Huls America filed a challenge to EPA's decision in the U.S. District Court for the 

District of Columbia. The court upheld EPA's denial of the Huls America petition, 

granting the government's motion for summary judgment. Huls America appeaIed to the 

D.C. Circuit. Two questions were presented to the court: (1) can EPA base an EHS 

listing solely on evidence of acute toxicity without considering any of the five other 

statutory criteria relative to listing; and (2) did EPA correctly apply the acute toxicity 

criterion to IPDI? The D.C. Circuit answered "yes" to both questions and affirmed the 

district court's grant of summary judgment. 

Syrznenta Legal Challenge Raises New Issues 

Syngenta's legal challenge to EPA's denial of the petition to delist Paraquat 

dichloride presents two new issues for judicial review. First, Syngenta asserts that EPA 

did not have a rational basis for denying Syngenta's alternative request to raise the TPQ 

from 2 Ibs. to 10,000 Ibs. Second, Syngenta asserts that EPA ignored data presented by 

Syngenta that support removal of Paraquat dichloride from the EHS list. Neither 

question was presented to or addressed by the D.C. Circuit in H~ils America. A brief 

explanation of each new issue is set forth below. 

No Rational Basis to Refer Request to Raise TPQ: Whereas Syngenta petitioned 

EPA to adjust the TPQ for Paraquat dichloride as an alternative to delisting, Huls failed 

to seek an adjustment of the TPQ from EPA: 

Huls claims that the TPQs do not in fact reflect the actual 

characteristics of substances because of the assumption that 

liquids will be released at their boiling points and at a vapor 

pressure of 760 mm/Hg. However, Huls waived this 

argument by not raising it during the administrative 

proceedings. See Ohio v. EPA, 302 U.S. App. D.C. 31 8,997 

F.2d 1520, 1 528-29 (D.C. Cir. 1993). 
Mdha & Cuneo, UL 

Artorncys at Lw 

Heather C. Winett 

August 29,200 1 

Page 3 

Failure to Consider Information Presented During Administrative Proceeding: 

The second new issue presented by Syngenta during the administrative proceeding, which 

was not raised in HzrIs America, concerns EPA's failure to consider data that support 

removal of Paraquat dichloride from the HS list. Specifically, in its delisting petition 

Syngenta pointed out that the EPA's Office of Pesticide Programs had evaluated the risks 

posed by Paraquat dichloride when sprayed on crops and had concIuded that Paraquat 

dichloride does not pose the potential for adverse effects because the dl-oplets are /lot 

inhafable. In other words, the Paraquat dichloride droplets are too large to penetrate the 

lungs during breathing, and thus are not capable of causing lung injury. EPA either failed 

to consider this data or failed to explain why the data was not relevant in its decision to 

deny Syngenta's petition. By contrast, in the Huls Anrerica case, Huls did not present 

evidence contradicting the results of the aerosol tests, which showed that IPDI exceed the 

inhalation toxicity criterion. See 83 F.3d at 449. 

In sum, there are important differences between the H~rls A~~rerica decision and the 

Iegal challenge presented by Syngenta.