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Sierra Club v. EPA

ELR Citation: 27 ELR 21347
Nos. 96-70223, 118 F.3d 1324/(9th Cir., 07/07/1997)

The court holds that the U.S. Environmental Protection Agency's (EPA's) Import for Disposal Rule violates the polychlorinated biphenyl (PCB) import ban contained in the Toxic Substances Control Act (TSCA). The court first grants a motion by the environmental group that challenges the rule for leave to dispense with service on the more than 300 individuals and groups that submitted comments on the rule before its promulgation. Because the rulemaking subject to the petition for review was informal, the service requirements of the Federal Rule of Appellate Procedure 15(c) do not come into play. The court next holds that EPA's rule violates TSCA because it attempts to obviate TSCA's requirements that in granting an exception to the import ban, EPA find no unreasonable risk of injury to health or the environment and that the applicant seeking an exemption first make a good-faith effort to develop a substitute chemical. EPA may grant an exemption to the ban on imports that may not last more than one year, but EPA's rule allows parties to continue importing PCBs indefinitely without interruption. The court, therefore, overturns it.

Counsel for Petitioner
Howard I. Fox
Earth Justice Legal Defense Fund
1625 Massachusetts Ave. NW, Ste. 702, Washington DC 20036
(202) 667-4500

Counsel for Respondents
Sylvia Quast
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Hug, Reavley,* and Leavy, JJ.