Corrosion Proof Fittings v. Environmental Protection Agency

No. 89-4596 (5th Cir. Nov. 15, 1991) (5th Cir. November 15, 1991)

On a motion for reconsideration of a portion of its earlier decision at 22 ELR 20037, which vacated the U.S. Environmental Protection Agency's (EPA's) 1989 final rule prohibiting the manufacture and sale of asbestos products, the court holds that EPA's decision to ban products that once were, but no longer are, being produced in or imported into the United States applies only to products that were not being manufactured, imported, or processed on July 12, 1989, the date of the rule's promulgation.

Counsel are listed at 22 ELR 20037.

Before BROWN, SMITH, and WIENER, Circuit Judges.

[22 ELR 20304]

PER CURIAM:

Respondents, the Environmental Protection Agency (EPA) and William K. Reilly, seek a clarification of the status of the phrase 1, or stage 1, provisions in the challenged rule, which provisions ban, effective August 27, 1990, the manufacture, importation, and processing of asbestos-containing corrugated and flat sheet, asbestos clothing, flooring felt, pipeline wrap, roofing felt, and vinyl/asbestos floor tile, and any new uses of asbestos. See 40 C.F.R. §§ 763.165(a), .167(a). The rule also requires labeling of phase 1 products after August 27, 1990, see id. § 763.171(a), and prohibits the distribution in commerce of such products after August 27, 1992, see id. § 763.169(a). See Corrosion Proof Fittings v. EPA, No. 89-4596, slip op. 558, 565 & n. 2 __ F.2d __ (5th Cir. Oct. 18, 1991).

Respondents assert that the clarification is needed because, in part V.D of our opinion, id. at 590-91, we have held that the EPA may "ban products that once were, but no longer are, being produced in the United States." Thus, the motion seeks clarification of the status of any products that still were being manufactured, imported, or processed on July 12, 1989, which is the date on which the final rule was issued, see 54 Fed.Reg. 29,459 (1989), but which were no longer being manufactured, imported, or processed, as a result of the stage 1 ban, on the date of our opinion, which is October 18, 1991.

The motion for clarification is GRANTED. The holding in part V.D. of our opinion applies only to products that were not being manufactured, imported, or processed on July 12, 1989, the date of the rule's promulgation. To the extent, if any, that there is doubt as to whether particular products are in that category, the EPA may resolve the factual dispute on remand.