Phosphoric acid should not be listed on the Toxics Release Inventory, Judge Gladys Kessler of the federal District Court for the District of Columbia ruled last week.
Phosphoric acid had been one of the chemicals originally listed by Congress when it passed -- in the aftermath of the 1984 accident in Bhopal, India -- the Emergency Planning and Community Right-to-Know Act of 1986.
Phosphoric was listed originally on the TRI because it had been listed on the Maryland and New Jersey state right-to-know laws. Phosporic acid had never been evaluated under EPCRA's TRI listing criteria.
Around 1990, The Fertilizer Institute petitioned the EPA to de- list phosphoric acid because it did not meet the criteria for listing -- i.e., phosphoric acid was not a "toxic" substance. Indeed, phosphoric acid is widely used as a food additive and is generally recognized as safe by the Food and Drug Administration.
The EPA denied the petition claiming phosphoric acid was "indirectly" toxic to the environment -- releases of phosphoric acid contributed elemental phosphorus to waterways which lead to nutrient enrichment and, under certain circumstances, could contribute to the natural process of eutrophication.
The EPA has used the theory of "indirect" toxicity to list on the TRI so-called "ozone depletion compounds." EPA could also use this theory to list carbon dioxide and other greenhouse gases on the TRI.
In The Fertilizer Institute v. EPA, D.C.D.C. No. 98cv1067, April 15, 1999), Judge Kessler said the statue requires inherent or "direct" toxicity.
Unless the EPA is successful on appeal, the "indirect" toxicity theory is toast.
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