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Central & S.W. Servs., Inc. v. EPA

ELR Citation: 31 ELR 20058
Nos. No. 98-60495, 220 F.3d 683/51 ERC 1065/(5th Cir., 08/15/2000)

The court dismisses in part and remands in part several petitioners' challenges to the U.S. Environmental Protection Agency's (EPA's) final rule concerning the use and disposal of polychlorinated biphenyls (PCBs). The court first holds that the substantial evidence standard of review under Toxic Substances Control Act (TSCA) §19(c)(1)(B)(I) applies only when there is a challenge to EPA's decision to depart from TSCA's outright ban on PCB use and permit the use or expand the use of PCBs. Only when there is a challenge to an EPA rule restricting or prohibiting the use of PCBs must courts review EPA's action under the arbitrary and capricious standard of review. The court next holds that the utility group petitioner lacks standing to challenge EPA's declaration in the preamble to the rule that TSCA does not allow EPA to preempt state PCB disposal rules. The group did not offer any state or local rules that it contends TSCA should preempt, nor did it offer evidence that it will suffer hardship if the court defers consideration of the issue. The court further holds that EPA was not arbitrary or capricious in imposing new restrictions on the storage of PCB articles for reuse. The record amply supports EPA's decision to strengthen storage for reuse regulations to prevent practices that pose an unreasonable risk to health and the environment. The court finds, however, that EPA failed to respond to industry comments requesting a national variance from compliance with this rule for electric utilities. EPA's specific request for comments on the appropriateness of a national variance and the numerous comments that EPA received on this request required EPA to give reasons for declining to promulgate a national variance. Therefore, the rule is remanded for EPA to provide a reasoned statement of why it did not grant a national variance for the electric utility industry. The court additionally holds that EPA's decision not to exclude small PCB-containing transformers identified by the utility group from the assumption rule for classifying transformers was not arbitrary or capricious. The group did not introduce into the record evidence that could support a conclusion that the types of small transformers surveyed by the group should not be classified as PCB transformers.

The court next holds that the portion of the rule assessing the toxicity of PCBs must be remanded. EPA admitted that it promulgated the final rule before its assessment of the non-cancer toxic effects of PCBs was complete. The court goes on to hold that EPA was not arbitrary or capricious in promulgating the rule's procedures for decontarninating equipment and structures contaminated by PCBs. Decontamination of painted surfaces does not require the use of grit/steel shot cleaning methods; rather, parties can meet the standard by using cleaning methods authorized in the final rule so long as the metal surface is left free of foreign matter except for light shadows or streaks. Additionally, the court holds that EPA's stringent cleaning requirement for concrete is not arbitrary or capricious. The record shows that the decontamination of concrete poses particular challenges because of its porousness and, therefore, requires additional cleaning procedures. The court finally holds that an environmental group failed to show injury-in-fact and, thus, lacks associational standing to challenge the rule's provisions that permit the disposal of PCB bulk product waste as daily landfill cover and under asphalt road beds. The group did not allege concrete injuries or threats of injury to their recreational, aesthetic, or economic interests, and the individual members did not demonstrate that they are threatened with injury from PCBs.

Counsel for Petitioners
Douglas H. Green
Piper & Marbury
1200 19th St. NW, Washington DC 20036
(202) 861-3900

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

Before Hall* and Smith, JJ.