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Utility Solid Waste Activities Group v. Environmental Protection Agency

ELR Citation: 31 ELR 20447
Nos. 99-1372, 236 F.3d 749/(D.C. Cir., 01/30/2001)

The court holds that the U.S. Environmental Protection Agency's (EPA's) failure to follow the Administrative Procedure Act (APA) notice-and-comment procedures in 5 U.S.C. §553 when it amended the Toxic Substances Control Act regulation for the continued use of polychlorinated biphenyl (PCB)-contaminated porous surfaces rendered the amendment unlawful. When EPA amended the rule, it changed the PCB concentration level at which PCB-contaminated surfaces may be reused. EPA claimed that the change corrected an error in the rule's language and, as a correction of a technical error, it was not required to comply with the APA. The court first holds that administrative agencies do not have an inherent power in the rulemaking context to correct their mistakes without complying with the APA's procedural requirements. EPA must correct its mistakes either by complying with the usual notice-and-comment APA rulemaking procedures found in 5 U.S.C. §553(b), or by complying with the procedures set out in 5 U.S.C. §553(b)(B) for exceptions to normal notice-and-comment procedures. The court next holds that EPA's amendment does not fall within one of §553(b)(B)'s exceptions to normal notice-and-comment procedures. The amendment was not so necessary for public safety that notice-and-comment procedures would be impractical. Likewise, because both the public and industry were interested in the amendment, it was not so inconsequential as to render notice-and-comment procedures unnecessary. Similarly, any public interest served by the amendment would not be defeated by advanced notice of its proposal.

Counsel for Petitioners
Angus Macbeth
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 736-8271

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

Before Williams and Tatel, JJ.