LosAngeles San Francisco

San Diego

TO:



### FROM: DATE: 

# McKenna&

# Cuneo,LLJ Attorneys atLaw
1900K Stteet, N.W. 

# . Wagton,D.C. 20006-1108 202-496-7500

# . Fax: 202-496-7756 wwlr..mdrennacuneo.com

Heather 

### C. Winett SyngentaCrop 

### Protection, 

### Inc. Peter 

### L. Gray 

# 4 August 29,2001 Denver Dallas Brussels

Peter L. Gray 202-496-7707 peter~gray(c~~mckennacuneo.com



### SUBJECT: 

### HulsAmerica

On December 

### 12, 1999,representatives of Zeneca Ag Products (now known as Syngenta Crop Protection, Inc.) met with EPA to explorethe possibility ofthe Agency reconsidering its denial of Syngenta's petition to remove Paraquat dichloride 

### from the Iisted extremely hazardous substances 

### ("EHS") under 

## 6 302 ofthe Emergency Planning and Community Right-to-Know Act ("EPCRA"). During the meeting, EPA requested that Syngenta explain whyfils America, Inc. v. CarolBI-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 ofthe arguments Syngenta advances for removing Paraquat dichloride from the 

### EHS list. Set forthbelow is Syngenta's 

### basis for distinguishing the 

### Huls America decision 

### from Syngenta's 

### legal challenge.

Concurrent with EPA's 1986 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 (LD50below 50 

### mgkg), or inhalation toxicity 

### (LC50below 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. 011thisI dtlmncysatLaw Heather 

### C.Winett August 29,2001 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 10,000pounds. EPA rejected both Huls America'spetition 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, grantingthe government's motion 

### for summaryjudgment. Huls America appeaIed to the 

### D.C. Circuit. Two questions were 

### presented to the court: (1) can EPA base an 

### EHS listing solelyon 

### evidence of acute 

### toxicity without considering

### any ofthe five other statutory criteria relative to listing; 

### and 

### (2) did 

### EPA correctly apply the acutetoxicity criterion to 

### IPDI? The 

### D.C. Circuit answered "yes" toboth questions and affirmed the district court's grant 

### of summaryjudgment. Syrznenta

### Legal 

### ChallengeRaises New Issues Syngenta's legal 

### challengeto 

### EPA's denial of

### the petition to delist Paraquat dichloride presents two new issues 

### forjudicial 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 

### ofParaquat 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 

### forthbelow. 

### No Rational 

### Basis to Refer Request to Raise 

### TPQ: Whereas Syngentapetitioned 

### EPA to adjust the 

### TPQ for Paraquat dichloride as 

### an alternative to 

### delisting,Huls failed to seek an adjustmentofthe TPQ from 

### EPA: Huls claims that the TPQs 

### do not in fact reflect the actual characteristics of substances 

### because ofthe 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 duringthe administrative proceedings. See Ohio v. EPA, 302 

### U.S. App. D.C. 318,997 

### F.2d 1520, 1528-29 

### (D.C. 

### Cir. 1993).

# Mdha &

# Cuneo,UL Artorncys atLw Heather C. Winett August 29,200 1 Page 

### 3
Failure to Consider Information Presented 

### During Administrative Proceeding: The second new issue presented by Syngentaduring the administrative proceeding, which was not raised in 

### HzrIs America, concerns EPA's 

### failureto consider data that support removal of Paraquat dichloride from the 

### HS list. Specifically, in its delistingpetition Syngentapointed outthat the 

### EPA's Office 

### ofPesticide 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 effectsbecause thedl-opletsare /lot 

### inhafable. In otherwords, the Paraquat 

### dichloride droplets are too large to penetrate the lungs duringbreathing, and thus arenot capable of causing lung injury. EPA either failed to consider

### this data 

### orfailed to explain why 

### the data was not relevant in its decision to 

### deny Syngenta's petition. 

### By contrast, 

### in theHulsAnrerica case, 

### Huls did not present evidence contradicting the results ofthe aerosol tests, which showed that IPDI exceed the inhalation toxicity criterion. See 

### 83F.3d at 449. In 

### sum, there 

### are important 

### differencesbetween the 

### H~rls A~~rerica decision and the 

### Iegal challengepresented 

### by Syngenta.