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Environmental Defense Fund v. EPA

Citation: 10 ELR 20972
No. Nos. 79-1580 et al., 636 F.2d 1267/15 ERC 1081/(D.C. Cir., 10/30/1980)

In a challenge to the Environmental Protection Agency's (EPA's) rules regulating polychlorinated biphenyls (PCBs), promulgated pursuant to the Toxic Substances Control Act (TSCA), the court upholds EPA's regulations allowing continuation of certain uses of PCBs but remands those regulations exempting materials containing PCBs in concentrations less than 50 parts per million (ppm) and classifying particular PCB uses as "totally enclosed." The court first rejects the argument that because petitioner seeks additional rule making on issues not covered in the agency proceedings below the court lacks jurisdiction to consider the petition. Moving to the merits, the court rules that in authorizing the continued use of 11 non-totally enclosed uses of PCBs, the Administrator did not err in relying on the TSCA § 6(c)(1) criteria to make the unreasonable risk determinations mandated by § 6(e)(2)(B). Furthermore, because there is substantial evidence in the record to support continuation of the non-totally enclosed uses and because EPA carefully articulated its policy judgment in support of its decision, the court upholds the use authorization for PCB-contaminated transformers. The court also rules that by exempting from the regulations those materials containing less than 50 ppm of PCBs, EPA not only contravened the statutory mandate but continues to expose both humans and the environment to an unreasonable risk of injury. By permitting continued PCB manufacture in concentrations below 50 ppm, in order to avoid disproportionate impacts on industry, EPA circumvented the requirements of §§ 6(e)(2)(B) and 6(e)(3)(B) by reglecting to find a lack of unreasonable risk of injury below the cutoff level and failing to consider the use of specific exemptions instead. Finally, the court rules there is not substantial evidence in the record to support EPA's de facto classification of capacitors, transformers, and electromagnets as totally enclosed and thus exempt from the regulations promulgated under § 6(e).

Counsel for Petitioner
Jacqueline M. Warren, William A. Butler
Environmental Defense Fund, Inc.
475 Park Ave. S., New York NY 10016
(212) 686-4191

Counsel for Respondent
Angus C. MacBeth, Deputy Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2744

Counsel for Intervenors the Ad Hoc Committee
Steven S. Rosenthal, Peter J. Nickels, Robert A. Loeffler
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Counsel for Intervenors Edison Electric Institute et al.
Toni K. Allen, Thomas H. Truitt, John J. Daly, James H. Davis
Wald, Harkrader & Ross
1300 19th St. NW, Washington DC 20036
(202) 828-1200

Counsel for Amicus Curiae Color Manufacturers' Ass'n
Donald L. Morgan
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 828-3000

Before ROBINSON AND EDWARDS, Circuit Judges, and CORCORAN,* United States District Judge for the District of Columbia.