The United States District Court for the District of Columbia, in In re National Oilseed Processors Association, recently upheld EPA's regulatory approach to adding 286 chemicals to the list of reportable substances on the Toxic Release Inventory ("TRI"). The TRI, which defines the toxic chemicals for which reports must be filed annually under Section 313 of the federal Emergency Planning and Community Right-to-Know Act ("EPCRA"), will nearly double in length under the EPA rule. As a result of the District Court's decision, EPA will require that reports be filed on more than 600 chemicals by August 1, a deadline which reflects a one-time/one-month grace period.
Five industrial associations and chemical companies challenged the EPA rule on the specific grounds used to list twelve of the chemicals and on the overall approach used to list most of the others. Specifically, the petitioners argued that EPA acted arbitrarily when deciding whether to list the substances by, among other things, failing to consider the risk of exposure to certain newly-listed chemicals.
Rejecting petitioners' assertions, the Court afforded EPA's rulemaking "a high degree of deference" on two grounds. First, the Court noted that the agency's interpretation of a statute it is charged with administering is entitled to deference. Second, the court stated that EPA is entitled to latitude where its actions are based on complex scientific data that is within the agency's technical expertise. In connection with the latter basis for judicial restraint, the Court also affirmed as reasonable EPA's use of the Integrated Risk Information System ("IRIS") in evaluating the hazardousness of the new listings. IRIS is a database containing EPA's consensus positions on the potential adverse human health effects of approximately 500 chemicals.
Because the Court's decision allows the rule to take effect, all companies immediately should review the expanded list of toxic chemicals to determine whether a reporting obligation is triggered, keeping in mind the August 1st deadline. For some companies, the expanded list may slightly increase the reporting burden by adding another chemical on which to report, but for other entities, the revised list may lead to a reporting duty for the first time.
