ELR Citation: ELR 20096
No(s). 04-5189 (D.C. Cir. May 10, 2005)

The D.C. Circuit held that the U.S. Environmental Protection Agency's (EPA's) determination that methyl ethyl ketone (MEK) should not be delisted from the toxic release inventory (TRI) was based on an impermissible construction of the Emergency Planning and Community Right-To-Know Act (EPCRA). There is no dispute that ozone itself is a toxic chemical under the criteria of EPCRA §313(d)(2) or that MEK, to some degree, contributes to the creation of ozone. But its contribution to the creation of a concededly toxic chemical is inadequate to support listing on the TRI. EPCRA §313(d)(2)(B) and (C) allow only for the listing of toxic chemicals, substantially as the term "toxic" is used in ordinary parlance. At a minimum, the chemical must cause harm via exposure. Because EPA's own analysis demonstrates that MEK fails this test, EPA's denial of a petition to delist was improper. The court therefore remanded the case so that the district court could order EPA to delist MEK from the TRI.