US court rules chem facilities not required to report MEK

11 May 2005 19:40  [Source: ICIS news]

WASHINGTON (CNI)--In a victory for the chemical industry, a federal court of appeals has ruled that facilities will no longer have to report annual emissions of methyl ethyl ketone (MEK) because the widely used solvent does not meet Toxics Release Inventory (TRI) reporting requirements.

 

In 1998, the Environmental Protection Agency (EPA) denied a request by the American Chemistry Council (ACC) to remove MEK from the TRI list.

 

MEK is one of the top compounds by volume reported in the TRI, with more than 2,000 sources reporting emissions.

 

ACC argued that MEK is not a toxic chemical because it “does not cause or cannot be reasonably anticipated to cause chronic health effects because exposure to the chemical itself does not cause adverse effects.”

 

ACC filed a lawsuit challenging EPA's ruling, but a federal court sided with the agency, saying EPA’s decision to continue to require facilities to report annual releases of MEK was consistent with the criteria for which chemicals are subject to TRI reporting.

 

However, a three-judge panel of the US Court of Appeals for the District of Columbia Circuit overturned the lower court's ruling, stating that the 1986 community right-to-know law that created the TRI makes clear that only toxic chemicals were to be listed.

 

Senior Judge Stephen Williams said Congress used the phase "toxic chemical" 38 times in writing the relevant section of the right-to-know law. "A naive observer might think that the section's sole subject is toxic chemicals. He would be right," Williams wrote in the panel’s opinion. "A naive observer might also think it obvious that that was so. He would be wrong."

 

EPA's decision to include MEK in the list of TRI chemicals was based on “an impermissible construction of the statute," Williams wrote. "At a minimum, the chemical must cause harm via exposure," he noted. "Because EPA's own analysis demonstrates that MEK fails this test, EPA's denial of the council's petition to delist was improper."

 

MEK is used as a solvent in surface coatings and adhesives. It is also used as an intermediate in the production of other chemicals and is a natural component of many foods, according to ACC's ketones panel.

 

EPA officials have not yet decided whether to ask the full appellate court to consider the case.

By: Glenn Hess
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