Central and South v. EPA ( 2000 )


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  •                        Revised November 13, 2000
    
                     IN THE UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT
                          ___________________________
                                    98-60495
    
      CENTRAL AND SOUTH WEST SERVICES, INC.; ENTERGY SERVICES INC.;
    MISSISSIPPI POWER COMPANY; UTILITY SOLID WASTE ACTIVITIES GROUP,
                                                          Petitioners,
                                    v.
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
                                                           Respondent.
                        __________________________
                                 98-60642
    
                         THE GENERAL ELECTRIC COMPANY,
                                                             Petitioner,
                                      v.
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
                                                             Respondent.
                          __________________________
                                   98-60804
    
              SIERRA CLUB, a non-profit California corporation,
                                                             Petitioner,
                                        v.
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
                                                             Respondent.
                           __________________________
                     Petition for Review of Regulations of
              the United States Environmental Protection Agency
                           __________________________
                                 August 15, 2000
    
    BEFORE DAVIS, CYNTHIA HOLCOMB HALL*, and SMITH, Circuit Judges.
    
    W. EUGENE DAVIS:
    
         Petitioners challenge the Environmental Protection Agency’s
    
    (“EPA”) final “Mega Rule” (“Final Rule”) concerning the use and
    
    disposal    of   polychlorinated   biphenyls   (“PCBs”).   Petitioners
    
    Central and South West Services, Inc., Entergy Services Inc.,
    
    Mississippi Power Company, Utility Solid Waste Activities Group
    
         *
             Circuit Judge of the Ninth Circuit, sitting by designation.
    (collectively “USWAG”) and General Electric Co. (“GE”) argue that
    
    discrete    portions    of   EPA’s   Final   Rule   are   too   restrictive.
    
    Petitioner Sierra Club, argues that certain provisions of the Final
    
    Rule do not sufficiently restrict the use of PCBs.          For the reasons
    
    that follow, we dismiss, or remand Petitioners’s challenges to the
    
    Final Rule.
    
                                         I
                           Facts and Procedural History
    
         In 1976, Congress enacted the Toxic Substances Control Act
    
    (“TSCA”), directing EPA to control the manufacture, processing,
    
    distribution, use and disposal of chemical substances and mixtures.
    
    15 U.S.C. § 2601 et seq.      Congress enacted TSCA “to set in place a
    
    comprehensive national scheme to protect humans and the environment
    
    from the dangers of toxic substances.”              Rollins Environmental
    
    Services, Inc. v. St. James Parish, 
    775 F.2d 627
    , 632 (5th Cir.
    
    1985).    Section 6(e) of TSCA generally phased out the manufacture,
    
    processing, commercial distribution and use of a certain class of
    
    chemicals known as polychlorinated biphenyls, or more commonly
    
    “PCBs”. 15 U.S.C. § 2605(e).
    
    
    
         PCBs are a class of compounds that were manufactured for a
    
    variety     of   purposes,     including      cooling     and    lubricating
    
    transformers, capacitors and other electrical equipment.            PCBs are
    
    particularly useful for these purposes because they do not burn
    
    easily and are excellent insulators.           Monsanto Corp., the U.S.
    
    
                                          2
    manufacturer of PCBs, produced PCBs between 1930 and 1977.         PCBs
    
    are also produced as a by-product in the production of various
    
    organic chemicals.   The most recent EPA study on PCBs states that
    
    “PCBs are highly likely to pose a risk of cancer to humans.”      PCBs:
    
    Cancer Dose-Response Assessment and Application to Environmental
    
    Mixtures, September 1996, (“1996 Reassessment”).
    
         TSCA permits EPA to issue rules authorizing certain uses of
    
    PCBs, but only if the agency finds that such use “will not present
    
    an unreasonable risk of injury to health or the environment.”       15
    
    U.S.C.   §   2605(e)(2)(B).    Section   6(e)   also   requires    the
    
    Administrator to “promulgate rules to ... prescribe methods for the
    
    disposal of [PCBs].”    15 U.S.C. § 2605(e)(1)(A).
    
         Pursuant to these statutory directions, EPA in 1991 initiated
    
    rulemaking proceedings on what would become the “PCB Mega Rule.”
    
    EPA initiated this rulemaking for several reasons.      First, EPA’s
    
    knowledge about the sources, uses, risks, and disposal of PCBs had
    
    increased substantially in the years following promulgation of the
    
    first disposal regulations.     56 Fed. Reg. at 26,738 (June 10,
    
    1991).   Second, the regulated community and the public brought to
    
    EPA’s attention a number of ways to streamline PCB regulations and
    
    to better protect human health and the environment from the risks
    
    associated with PCBs.     59 Fed. Reg. at 62,788 (Dec. 6, 1994).
    
    Third, fourteen years after the ban on manufacturing, over eight
    
    hundred thousand tons of PCBs were still being disposed of each
    
    
    
                                      3
    year in the United States.   61 Fed. Reg. at 11,096 (Mar. 18, 1996).
    
    EPA was particularly concerned about “large volume PCB wastes” from
    
    the shredding of automobiles, appliances, and the like and also
    
    PCB-contaminated soils and sediments.      59 Fed. Reg. at 62,791.
    
         In June 1991, EPA published an Advance Notice of Proposed
    
    Rulemaking (“ANPR”), which sought comment on a number of sweeping
    
    changes to the PCB regulations.       56 Fed. Reg. at 26,738 (June 10,
    
    1991).   After receiving comments on the ANPR, EPA published a
    
    Notice of Proposed Rulemaking (“NPRM”), proposing amendments to,
    
    among other things, controls on the use and storage of PCB-
    
    containing electrical equipment and disposal and cleanup of PCBs.
    
    59 Fed. Reg. at 62,788 (Dec. 6, 1994).          EPA received over 200
    
    comments on the NPRM and held a public hearing on the NPRM in June
    
    1995.
    
         In June 1998, approximately three-and-a-half years after the
    
    NPRM and seven years after the ANPR, EPA promulgated the final PCB
    
    Mega Rule (“Final Rule”)(codified at 40 C.F.R. §§ 761.1 - .398),
    
    adopting significant amendments affecting the use, manufacture,
    
    processing, distribution in commerce, and disposal of PCBs.          63
    
    Fed. Reg. at 35,384 (June 29, 1998).
    
         Two sets of petitioners, USWAG and GE, challenge discrete
    
    aspects of the Final Rule, arguing essentially that the revisions
    
    do not go far enough in relaxing regulatory controls on PCB storage
    
    and disposal.   In the third petition, Sierra Club argues that the
    
    
    
                                      4
    rule goes too far and thus allows unreasonably risky disposal
    
    practices. This Court has jurisdiction to review challenges to the
    
    Final Rule pursuant to Section 19(a) of TSCA, 15 U.S.C. § 2618(a),
    
    which grants interested parties the right to appeal directly a
    
    final rule promulgated under section 6(e) to this or any other
    
    regional circuit court of appeals.                     We consider each of the
    
    petitioners’ arguments in turn.
    
                                           II
                                   Standard of Review
    
         TSCA states that the Administrative Procedure Act’s scope of
    
    review provision, 5 U.S.C. § 706, shall apply to review of rules
    
    under TSCA section 6(e) except that “the court shall hold unlawful
    
    and set aside such rule if the court finds that the rule is not
    
    supported by substantial evidence in the rulemaking record ...
    
    taken   as    a    whole.”         TSCA       §    19(c)(1)(B)(I);      U.S.C.     §
    
    2618(c)(1)(B)(I)(emphasis added).
    
         The substantial evidence standard requires reviewing courts
    
    “to ask whether a ‘reasonable mind might accept’ a particular
    
    evidentiary   record      as    ‘adequate         to   support   a   conclusion.’”
    
    Dickinson v. Zurko, 
    527 U.S. 150
    , 162, 
    119 S. Ct. 1816
    , 1823, 
    144 L. Ed. 2d 143
     (1999) (citations omitted).                   “Substantial evidence
    
    requires ‘something less than the weight of the evidence, and the
    
    possibility   of    drawing     two   inconsistent        conclusions    from    the
    
    evidence does not prevent an administrative agency’s finding from
    
    being   supported    by   substantial         evidence.’”        Corrosion   Proof
    
    
                                              5
    Fittings v. EPA, 
    947 F.2d 1201
    , 1213 (5th Cir. 1991)(quoting
    
    Consolo v. Federal Maritime Comm’n, 
    383 U.S. 607
    , 620 (1966)).                    As
    
    this Court emphasized, “Congress put the substantial evidence test
    
    in the statute because it wanted the courts to scrutinize [EPA’s]
    
    actions more closely than an arbitrary and capricious standard
    
    would allow.”      Id. at 1214.
    
         Moreover, when EPA seeks to change its regulatory course, it
    
    bears the burden of producing evidence in the record supporting the
    
    change in its rules.         Center for Science in the Public Interest v.
    
    Hodel, 
    797 F.2d 995
    , 999 (D.C. Cir. 1986)(citation omitted)(the
    
    agency bears “the burden ... to justify the change from the status
    
    quo ....”).      And, “[i]t is axiomatic that an agency choosing to
    
    alter its regulatory course ‘must supply a reasoned analysis
    
    indicating      that   its    prior     policies    and    standards   are   being
    
    deliberately changed, not casually ignored.’” Action for Children’s
    
    Television v. F.C.C., 
    821 F.2d 741
    , 745 (D.C. Cir. 1987) (citations
    
    omitted); accord Acadian Gas Pipeline Sys. v. F.E.R.C., 
    878 F.2d 865
    , 870 (5th Cir. 1989); Action on Smoking and Health v. C.A.B.,
    
    
    699 F.2d 1209
    , 1216 (D.C. Cir. 1983) (agency rescinding rule must
    
    “explain why the old regulation is no longer desirable”).                “When an
    
    agency   acts    to    rescind    a   standard     it     previously   adopted,   a
    
    reviewing court will subject that rescission to the same level of
    
    scrutiny   applicable        to   the    agency’s       original   promulgation.”
    
    Association of Public-Safety Comm. Officials Int’l, Inc. v. F.C.C.,
    
    
    
                                              6
    
    76 F.3d 395
    , 398 (D.C. Cir. 1996)(citing Motor Vehicle Mfrs. Ass’n
    
    v. State Farm Mut. Auto Ins. Co., 
    463 U.S. 29
    , 41 (1983))
    
         The parties disagree as to how the substantial evidence
    
    standard applies to the rulemaking at issue.    According to EPA, the
    
    unique feature of TSCA § 6(e), which generally prohibits the
    
    manufacture or use of PCBs unless EPA has authorized a use,
    
    reflects a legislative finding that PCBs pose an unreasonable risk
    
    of injury to health.   Therefore, EPA argues, TSCA § 6(e) creates a
    
    rebuttable   presumption   that   all   uses   of   PCBs   present   an
    
    unreasonable risk of injury to health and the environment.       Thus,
    
    according to EPA, if a petitioner, such as USWAG or GE, alleges
    
    that EPA unreasonably refused to allow a particular use of PCBs,
    
    EPA need not show by substantial evidence that petitioners’ desired
    
    use poses an unreasonable risk to health or the environment.         We
    
    agree.
    
         When considered in the context of section 6(e), the review
    
    provision of TSCA § 19(c)(1)(B)(I) reflects Congress’s intent that
    
    courts apply the higher substantial evidence standard of review
    
    only to those EPA decisions permitting the use of PCBs.        Section
    
    6(e) establishes a categorical ban on most uses of PCBs except as
    
    authorized by EPA.     Although this section permits EPA to craft
    
    exceptions to this outright ban, it does not require the agency to
    
    do so. Section 19(c)(1)(B)(I), in turn, ensures that when EPA does
    
    exercise its discretion to create an exception, they do so only to
    
    
    
                                      7
    the extent supported by substantial evidence.                       Nothing in the
    
    statutory scheme suggests that EPA must support by substantial
    
    evidence either its decision not to act or its decision not to
    
    craft    as   large    an   exemption     as    petitioners        would      like.       A
    
    petitioner     may    nevertheless       challenge      such   a         decision,       or
    
    indecision as the case may be, but they must do so as most
    
    petitioners do in most informal rulemakings, by showing that the
    
    agency   acted      arbitrarily    and    capriciously.            See    5    U.S.C.    §
    
    706(2)(A).     To require a greater evidentiary showing by EPA would
    
    eviscerate the categorical ban of section 6(e) and would reverse
    
    the presumption against PCB use that the section imposes.
    
         Petitioner,        USWAG,    contends       that    the   D.C.        Circuit       in
    
    Environmental Defense Fund, Inc. v. EPA,(“EDF”) 
    636 F.2d 1267
     (D.C.
    
    Cir. 1980), held that TSCA does not create a statutory presumption
    
    that the use of PCBs presents an unreasonable risk of injury to
    
    health or     the     environment.       Petitioner’s      reliance           on   EDF   is
    
    misplaced.     In EDF, petitioners argued that TSCA prohibited EPA
    
    from permitting most uses of PCBs under any circumstance. 636 F.2d
    
    at 1275 n. 17.        In effect, the petitioner argued that the statute
    
    created an unrebuttable presumption that PCBs pose an unreasonable
    
    risk to health and the environment and that, therefore, EPA could
    
    not authorize the use of PCBs.                In rejecting this argument, the
    
    D.C. Circuit held that the statute does not create an unrebuttable
    
    presumption.     Id.    We agree with this conclusion and, as indicated
    
    
    
                                              8
    above, we conclude that the statutory language creates a rebuttable
    
    presumption that uses of PCBs pose an unreasonable risk to health
    
    and the environment.
    
          Accordingly, we hold that the substantial evidence standard of
    
    review provided for under section 19(c)(1)(B)(I) applies only when
    
    a petitioner challenges EPA’s decision to depart from the outright
    
    ban and permit the use or expand the use of PCBs.                    When a
    
    petitioner challenges an EPA rule restricting or prohibiting the
    
    use of PCBs, courts must review EPA’s action under the arbitrary
    
    and capricious standard of review.
    
                                        III
                                  USWAG Petition
    
          USWAG first challenges a provision of the preamble to the
    
    Final Rule that states that TSCA does not preempt state or local
    
    PCB   cleanup,   storage,   and     disposal   regulations.     USWAG   also
    
    challenges   the   portion     of    EPA’s     Final   Rule   that   imposes
    
    restrictions on the storage for reuse of PCB Articles, as well as
    
    the section of the Final Rule that creates a regulatory assumption
    
    for classifying “small transformers” as “PCB Transformers.”
    
                                         A
                                Federal Preemption
    
    
          Section 18 of TSCA provides, in pertinent part, that:
    
               [e]xcept as provided in subsection (b) of this
               section ...
    
               ... if the Administrator prescribes a rule or
               order under section 2604 or 2605 [TSCA § 6] of
    
    
                                           9
              this title (other than a rule imposing a
              requirement described in subsection (a)(6) of
              section 2605 of this title) [referred to as
              the   ‘Parenthetical     Exception’]   which   is
              applicable to a chemical substance or mixture,
              and   which   is   designed    to   protect   the
              environment associated with such substance or
              mixture, no State or political subdivision of
              a State may, after the effective date of such
              requirement, establish or continue in effect,
              any requirement which is applicable to such
              substance   or    mixture    ...   unless    such
              requirement    (I)    is    identical    to   the
              requirement prescribed by the Administrator,
              (ii) is adopted under authority of the Clean
              Air Act or any Federal law, or (iii) prohibits
              the use of such substance or mixture in such
              State or political subdivision (other than its
              use in the manufacture or processing of other
              substances or mixtures).
    
    
    TSCA § 18(a)(2)(B), 15 U.S.C. § 2617 (a)(2)(B) (emphasis added).
    
         Thus, once EPA regulates a chemical substance under TSCA § 6,
    
    no State or local government may establish or continue to enforce
    
    any requirement applicable to such chemical unless: (1) the state
    
    requirement   fits    into    one    of        section   18's    three   enumerated
    
    exceptions,   or     (2)   the   state         requirement      falls    within    the
    
    parenthetical exception to Section 18, which exempts rules imposing
    
    certain requirements described in TSCA.
    
         USWAG is unhappy with EPA’s declaration in the preamble to the
    
    Final Rule that “TSCA does not allow the Administrator to preempt
    
    State disposal     rules     which   describe       the   manner    or    method    of
    
    disposal of a chemical substance or mixture, or in this instance,
    
    the disposal of PCBs.”           63 Fed. Reg. at 35,386.                 USWAG also
    
    
    
                                              10
    complains of several provisions of the Final Rule which explain
    
    that parties subject to the Final Rule must also comply with other
    
    “applicable” Federal, State, and local laws and regulations.1
    
         USWAG   argues   that   the    portion   of    this   legally-binding
    
    preamble2 declining to preempt state rules governing the disposal
    
    of PCBs contravenes the express intent of Congress to establish a
    
    comprehensive   and   uniform      federal    PCB   regulatory   program.
    
    Additionally, USWAG argues that the preamble directly conflicts
    
    with this Court’s controlling precedent in Rollins.           775 F.2d at
    
    634 (holding that “Congress has explicitly mandated that [TSCA],
    
    and regulations promulgated under it by EPA, preempt state and
    
    local regulation of PCB disposal.”)(emphasis in original).          USWAG
    
    urges us to vacate EPA’s interpretation that TSCA does not preempt
    
    
         1
          40 C.F.R. § 761.50(a)(6) provides that “[a]ny person storing
    or disposing of PCBs is also responsible for determining and
    complying with all other applicable Federal, State, and local laws
    and regulations;” 40 C.F.R. § 761.72(c)(2), that provides “[s]crap
    metal recovery ovens and smelters disposing of PCBs must provide
    notification as disposers of PCBs, are not required to submit
    annual reports, and shall otherwise comply with all applicable
    provisions of subparts J and K of this part, as well as other
    applicable Federal, State, and local laws and regulations;” and 40
    C.F.R. § 761.79(a)(6), “[a]ny person engaged in decontamination
    under this section is responsible for determining and complying
    with all other applicable Federal, State, and local laws and
    regulations.”
         2
          An EPA declaration contained in the preamble to a final rule
    setting forth the Agency’s final and binding interpretation of the
    statute qualifies as a reviewable regulation for purposes of
    judicial review. Chemical Waste Management v. EPA, 
    869 F.2d 1526
    ,
    1533 (D.C. Cir. 1989) (holding that a regulatory interpretation in
    preamble to a final rule was ripe for review because EPA had
    arrived at its ultimate decision on the issue).
    
                                        11
    state and local regulations regarding the disposal of PCBs.
    
           Before we can reach the merits of USWAG’s claims, however, we
    
    must    consider   whether   these   claims   are    presently   ripe   for
    
    adjudication.      See Ohio Forestry Ass’n, Inc., v. Sierra Club, 
    523 U.S. 726
    , 731, 
    118 S. Ct. 1665
    , 1670, 
    140 L. Ed. 2d 921
     (1998)(case
    
    must be ripe in order to be justiciable).           The Supreme Court has
    
    explained that the essence of the ripeness doctrine is to:
    
                prevent the courts, through avoidance of
                premature   adjudication,    from   entangling
                themselves in abstract disagreements over
                administrative policies, and also to protect
                the agencies from judicial interference until
                an administrative decision has been formalized
                and its effects felt in a concrete way by the
                challenging parties. The problem is best seen
                in a twofold aspect, requiring us to evaluate
                both the fitness of the issues for judicial
                decision and the hardship to the parties of
                withholding court consideration.
    
    Abbott Laboratories v. Gardner, 
    387 U.S. 136
    , 148-49, 
    87 S. Ct. 1507
    , 1515, 
    18 L. Ed. 2d 681
     (1967).        Typically, in the context of
    
    rulemaking, “we wait until a rule has been applied before granting
    
    review,” however, “this prudential concern loses force . . . when
    
    the question presented is purely legal.”        American Forest & Paper
    
    Ass’n. v. EPA, 
    137 F.3d 291
    , 296-297 (5th Cir. 1998) (citing New
    
    Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 
    833 F.2d 583
    , 587 (5th Cir. 1987)(“NOPSI”).                USWAG argues that
    
    their challenge involves a pure question of law that is ripe for
    
    consideration.      This Court has held, however, that even where an
    
    issue presents purely legal questions, the plaintiff must show some
    
    
                                         12
    hardship in order to establish ripeness.                See American Forest, 137
    
    F.3d at 296 (holding that purely legal issue was ripe for review
    
    because injuries were not speculative and deferring review would
    
    impose an immediate, significant burden on the petitioner); Chevron
    
    U.S.A., Inc. v. Traillour Oil Co., 
    987 F.2d 1138
    , 1153-54 (5th Cir.
    
    1993) (holding that purely legal issue of whether Rocky Mountain
    
    was   liable      to   indemnify    Chevron      for    any    plug    and      abandon
    
    obligations was ripe because there was a substantial possibility
    
    that Chevron would be required to plug and abandon the wells);
    
    NOPSI, 833 F.2d at 588 (holding that plaintiffs’ suit to enjoin
    
    city council from forcing plaintiffs to absorb the cost of a
    
    nuclear power plant was not ripe because city council had only
    
    announced an inquiry into the issue of who should pay for the power
    
    plant and that there was only a possibility of harm to plaintiffs).
    
    
    
          In   this    case,   USWAG    has     identified        no   State   or    local
    
    regulations that it contends TSCA should preempt.                     Nor has USWAG
    
    offered    evidence     that   it   will       suffer   hardship      if   we    defer
    
    consideration of this issue.          Based on this record, we conclude
    
    that any hardship that USWAG could suffer is conjectural and thus,
    
    the issue is not ripe for review.
    
                                           B
                                   Storage for Reuse
    
          The Final Rule authorizes members of the regulated industry to
    
    
    
    
                                              13
    store PCB Articles3 for reuse.        40 C.F.R. § 761.35.   Under §
    
    761.35, an owner/operator may store PCB Articles indefinitely in
    
    storage units constructed to contain spills or releases of PCBs.
    
    40 C.F.R. § 761.35(c).    PCBs may also be stored in any other area
    
    if the owner or operator of the PCB Article: (1) follows the use
    
    and marking requirements for PCB Articles; (2) maintains records
    
    indicating the date the PCB Article was removed from use, the
    
    projected location and anticipated use of the PCB Article, and, if
    
    applicable, the date the PCB Article is scheduled for repair; and
    
    (3) if the owner or operator wants to store the PCB Article for
    
    more than five years, he must receive written approval from EPA
    
    Regional Administrator for the region in which the PCB Article is
    
    stored.   40 C.F.R. §§ 761.35(a) and (b).     These restrictions on
    
    storage for reuse affect utility companies because, as EPA stated
    
    in the NPRM:
    
              [transformers] can easily have an active
              service life of more than 40 years [and]
              disposing of this equipment prematurely based
              upon an arbitrary time limit would not be
              economically    prudent   nor    serve    any
              environmental goals. Placing such a piece of
              electrical equipment in storage for reuse to
              be used as a spare or in emergency situations
              is both prudent and economically sound.
    
    59 Fed. Reg. at 62,822.
    
    
    
         3
          “PCB Article” means any manufactured article that contains
    PCBs or whose surface has been in direct contact with PCBs, such as
    capacitors, transformers, electric motors, pumps, and pipes. 40
    C.F.R. § 761.3.
    
                                     14
         USWAG argues that EPA previously authorized storage for reuse
    
    in its 1982 Rulemaking and that Final Rule § 761.35 imposes new
    
    restrictions on the storage for reuse of PCB Articles.             According
    
    to USWAG, we should vacate § 761.35 because EPA lacks substantial
    
    evidence in the record to support its restrictions on the storage
    
    for reuse of PCB Articles.           In addition, USWAG argues, as an
    
    independent basis for vacating § 761.35, that EPA failed to respond
    
    to a multitude of comments requesting a national variance for
    
    electric utilities.
    
    
                                       1
                                1982 Rulemaking
    
         EPA authorized storage for reuse for certain PCB Articles in
    
    its 1982 Rulemaking.4    EPA explains that by 1991 it became aware of
    
    risks posed by PCB Articles in storage for reuse that it did not
    
    anticipate when it promulgated the 1982 regulations.          56 Fed. Reg.
    
    at 26,742.    According to EPA, it became aware that regulated
    
    entities were engaging in “sham storage,” that is, storage of PCB
    
    Articles   with   no   intent   to   reuse   the   Articles   in   order   to
    
    circumvent stringent disposal requirements.            Id.     EPA further
    
    contends that it became aware of reports of electrical equipment
    
    “held ‘in storage’” for prolonged periods of time and “abuses” of
    
    
         4
          See 47 Fed. Reg. 37,342, 37344 (Aug. 25, 1982). See also id.
    at 37,357 (use conditions for PCB Transformers “in use or stored
    for reuse”) (text of § 761.30(a)(1)(ii); id. at 37,358 (conditions
    for “use and storage for reuse” of electromagnets, switches, and
    voltage regulators)(text of § 761.30(h)(1)(I)).
    
                                         15
    the storage for reuse rules by “brokers, junk yards, [and] service
    
    shops.”   56 Fed. Reg. at 26,742; 59 Fed. Reg. at 62,822.
    
          In the instant rulemaking, EPA received a comment from the
    
    State of Connecticut’s Department of Environmental Protection that
    
    warned “it is clear that ... some limitations must be imposed on
    
    the   long-abused   ‘storage   for   reuse’     status   ....”    State    of
    
    Connecticut Comments, R.C1-249 at 3.            The Department of Energy
    
    (“DOE”) also submitted comments indicating the prevalence of abuse
    
    of storage for reuse.    According to DOE:
    
               as EPA points out, often equipment stored for
               “reuse” in junkyards, service shops, brokers,
               etc. is in disrepair or is damaged.       DOE
               agrees that these specific situations must be
               eliminated while still allowing legitimate
               storage for reuse to continue.
    
    Comments of DOE, R.C1-147 at 77.
    
          EPA argues that it imposed the § 761.35 requirements to curb
    
    such abuse of the previous “storage for reuse” rule.             The record
    
    amply supports this decision to strengthen the “storage for reuse”
    
    regulations to prevent practices that pose an unreasonable risk to
    
    health and the environment.     EPA’s decision to change its previous
    
    storage   for   reuse   authorization     was    neither    arbitrary     nor
    
    capricious.
    
                                       2
                             Response to Comments
    
          USWAG also argues that EPA failed to respond to industry
    
    comments requesting a national variance from compliance with this
    
    
    
                                         16
    rule for electric utilities. Section 553(c) of the APA requires an
    
    agency to “incorporate in the rules adopted a concise general
    
    statement of their basis and   purpose.” 5 U.S.C. § 553(c).      The
    
    scope and degree of detail required by § 553(c) depends on the
    
    scope and detail provided in the comments.     See Kenneth Culp Davis
    
    & Richard J. Pierce, Administrative Law Treatise § 7.4, at 312 (3d
    
    ed. 1994).
    
         In the NPRM, EPA specifically requested comments from the
    
    regulated community on the appropriateness of a national variance
    
    from the proposed requirements of § 761.35.5    USWAG argues that we
    
    must vacate the restrictions on storage for reuse because EPA
    
    failed to respond to fifteen comments specifically requesting a
    
    national variance from § 761.35 for electrical utilities.
    
         EPA admits that it did not state explicitly why it declined to
    
    grant industry demands for a national exemption for the electric
    
    utility industry.    However, EPA argues that after considering
    
    comments from a number of sources, it evaluated the risks, benefits
    
    and burdens associated with the storage for reuse of PCB Articles,
    
    and concluded that it could not give the electric utility industry
    
    a blanket exemption from § 761.35.      EPA also argues that the
    
    storage for reuse requirements promulgated in the Final Rule are
    
    less rigorous than the storage for reuse requirements proposed in
    
    
         5
           “EPA also requests comment on the inclusion of site-specific
    or nationwide exemption or waiver provisions ....” 59 Fed. Reg. at
    62,822 (emphasis added).
    
                                    17
    the NPRM and that the Final Rule it adopted was EPA’s comprehensive
    
    response to all the comments on storage for reuse, including the
    
    electric utilities’ requests for a national variance.         We conclude
    
    that EPA’s rationale is insufficient.
    
         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.       But EPA’s failure to explain why
    
    it did not adopt a national variance does not require vacatur.
    
    Courts have explained that “remand is generally appropriate when
    
    ‘there is at least a serious possibility that the [agency] will be
    
    able to substantiate its decision’ given an opportunity to do so,
    
    and when vacating would be ‘disruptive.’” See Radio-Television News
    
    Directors Ass’n v. FCC, 
    184 F.3d 872
    , 888 (D.C. Cir. 1999)(quoting
    
    Allied-Signal, Inc. v. United States Nuclear Regulatory Comm’n, 
    988 F.2d 146
    , 151 (D.C. Cir. 1993).         EPA may well be able to justify
    
    its decision to refuse to promulgate a national variance for the
    
    electric utilities and it would be disruptive to vacate a rule that
    
    applies to other members of the regulated community.6        Accordingly,
    
    
    
         6
          The Rule regulating storage for reuse applies to all members
    of the regulated community including junkyards, service shops,
    brokers, and electric utilities. EPA gave ample reasons for its
    application of the Rule to the members of the regulated community
    in general. It simply failed to explain why it refused to grant
    the national variance to the electric utilities. We conclude that
    it would be disruptive to vacate application of the Rule to other
    segments of the industry.
    
                                       18
    we remand, without vacatur, Final Rule § 761.35 for EPA to provide
    
    a reasoned statement of why it did not grant a national variance
    
    for the electric utility industry.
    
                                          C
                                 Small Transformers
    
          Another issue that EPA considered in the rulemaking process
    
    was   the   adoption   of    assumptions     for    classifying    transformers
    
    containing     PCBs    for   the   purpose     of    determining    how   those
    
    transformers should be regulated during the time they are in use.
    
    63 Fed. Reg. at 35,436-37.              These regulatory assumptions are
    
    critical because the applicable controls depend on what category of
    
    transformer is being regulated: transformers containing $500 ppm7
    
    PCBs are defined as “PCB Transformers” and are subject to the most
    
    stringent    use   controls     (including     labeling,    inspections     and
    
    registration    requirements,      as   well   as    location   restrictions);
    
    transformers containing $ 50 to < 500 ppm PCBs are defined as “PCB-
    
    contaminated Electrical Equipment” and are subject to less onerous
    
    use controls; and transformers containing < 50 ppm PCBs generally
    
    are not regulated for purposes of use.               40 C.F.R. §§ 761.3 and
    
    761.30(a).
    
          In NPRM EPA requested comment on how to classify, for purposes
    
    of the above regulatory assumptions, a particular category of
    
    transformers characterized as “small transformers”:
    
                [t]he Agency is seeking information regarding
    
          7
                ppm = parts per million.
    
                                            19
                 numbers of small transformers or other
                 electrical equipment that contains PCBs ....
                 Some examples of this type of equipment are:
                 potential transformers, current transformers
                 ....   These small transformers can range in
                 size from several inches to several feet in
                 height .... Since these smaller transformers
                 generally do not have a nameplate, under the
                 proposed amendment to § 761.3 [the definition
                 of “PCB Transformer”] they would have to be
                 assumed to be PCB Transformers and would be
                 subject   to   the   [PCB   Transformer]   use
                 requirements ... and the disposal requirements
                 ....
                 The Agency is also soliciting comments
                 regarding the disposal requirements that could
                 be imposed on these small transformers or
                 other similar types of small electrical
                 equipment.
    
    59 Fed. Reg. at 62,820 (emphasis added).
    
          In response to this request for information, USWAG and others
    
    submitted comments explaining why EPA should not include “small
    
    transformers”       within   the   regulatory        assumption    rule      for    “PCB
    
    Transformers.”       In addition to providing EPA with information on
    
    the   uses    and    manufacture     of        the   various    types       of   “small
    
    transformers,” USWAG provided EPA with the results of an electric
    
    utility industry survey.           This survey challenged EPA’s factual
    
    basis for concluding that the millions of “small transformers” in
    
    use throughout the electric utility industry are “PCB Transformers”
    
    (i.e., contain $ 500 ppm PCBs).           Only one percent (1%) of the small
    
    transformers    evaluated     in   the     survey     were     found   to    meet    the
    
    definition of a “PCB Transformer.”              However, USWAG did not provide
    
    EPA with the data supporting the survey results and, therefore,
    
    
    
                                              20
    that data is not part of the rulemaking record.
    
         On the basis of the survey results, USWAG urged EPA not to
    
    include “small transformers” within the regulatory assumption rule
    
    that would classify them as “PCB Transformers.”               Instead, USWAG
    
    urged EPA to include “small transformers” within the regulatory
    
    assumption rule for PCB-Contaminated Electrical Equipment.8             USWAG
    
    also requested that EPA regulate small transformers containing less
    
    than three pounds of fluid in the same manner as Small Capacitors
    
    (which are essentially viewed as non-PCB equipment) and that EPA
    
    view “dry-type” small transformers as non-PCB and thus exempt from
    
    PCB controls.
    
         In   the   Final   Rule,   EPA        concluded   that   the   following
    
    transformers could be assumed to contain less than 50 ppm PCBs (and
    
    hence not subject to any PCB controls during use):(1) non-liquid
    
    filled transformers; (2) transformers containing less than 3 pounds
    
    of fluid; (3) transformers manufactured on or after July 2, 1979,
    
    the effective date of TSCA’s PCB ban; (4) certain mineral oil
    
    transformers of any volume; and (5) pad-mounted and pole-top
    
    
         8
              The regulatory assumptions apply only to untested
    equipment. An owner of PCB-containing electrical equipment can
    establish the actual PCB concentration in the equipment, either
    through testing or the use of qualified documentation, and not rely
    on the regulatory assumptions. 63. Fed. Reg. at 35,389. However,
    as USWAG points out in their comments, most “small transformers”
    are hermetically sealed during manufacture, making testing
    impossible without destroying the integrity of the unit.       Pet.
    Comments at 62.        Hence, most owners/operators of “small
    transformers” must, as a practical matter, rely on the regulatory
    assumptions for purposes of classifying this equipment.
    
                                          21
    transformers.     40 C.F.R. §§ 761.2(a)(1)-(4).   However, the rule
    
    assumes that “small transformers” and other transformers that meet
    
    the § 761.2(a)(3) criteria,9 are “PCB Transformers.”   In support of
    
    this conclusion, EPA reasoned that it is exceedingly difficult to
    
    determine the contents and date of manufacture of these small
    
    transformers.
    
         USWAG argues that neither EPA’s Final Rule nor its Response to
    
    Comments discusses or challenges the validity of the survey results
    
    supplied by USWAG or the data in other comments demonstrating that
    
    less than 1% of “small transformers” contain > 500 ppm PCBs.
    
         EPA argues that as a result of comments by USWAG and others it
    
    modified the proposed assumption extensively to reflect these
    
    comments. EPA argues that it did not further modify the assumption
    
    because, when taken together, EPA’s evidence of the dangers that
    
    PCBs pose, the large number of PCB Transformers manufactured that
    
    contain high levels of PCBs, and the improper practices of some
    
    
    
    
         9
             Section 761.2(a)(3) provides that:
    
                 [a]ny person must assume that a transformer
                 manufactured prior to July 2, 1979, that
                 contains ... 3 pounds ... or more of fluid
                 other   than  mineral   oil  and   whose  PCB
                 concentration is not established, is a PCB
                 Transformer (i.e., > 500 ppm). If the date of
                 manufacture and the type of dielectric fluid
                 is unknown, any person must assume the
                 transformer to be a PCB Transformer.
    
                                      22
    transformer owners10 and operators support the promulgation of the
    
    assumption rule.
    
         We        conclude   that   EPA’s       decision        not    to     exclude       the
    
    transformers identified by USWAG in its survey from the assumption
    
    rule was not arbitrary and capricious. USWAG did not introduce into
    
    the record the data supporting its survey and there was no other
    
    evidence in the record that could support a conclusion that the
    
    types of        small   transformers    surveyed       by    USWAG       should    not    be
    
    classified as PCB Transformers.
    
    
    
                                            IV
                                       GE Petition
    
         GE    argues       that   EPA,    in        promulgating       the    Final       Rule,
    
    overestimated the carcinogenicity of PCBs.                   GE also challenges the
    
    Final Rule’s provisions regarding the decontamination of painted
    
    metal surfaces and concrete.
    
                                            A
                                   PCB Risk Assumption
    
         The TSCA requires that any EPA rule concerning PCBs must not
    
    cause     an     “unreasonable    risk       of     injury     to    health       or     the
    
    environment.” 15 U.S.C. § 2605(e)(1)(A), (2)(B).                     Pursuant to this
    
    requirement, the Final Rule establishes new PCB remediation and
    
    
         10
            According to EPA, it uncovered evidence that some
    transformer owners removed the manufacturer’s nameplate, which
    generally provides the only evidence of the level of PCBs in the
    transformer, from PCB transformers to avoid properly disposing
    them. 56 Fed. Reg. at 26,741.
    
                                                23
    decontamination     options    based   on:   (1)    EPA’s   estimate   of   the
    
    toxicity of PCBs; and (2) EPA’s estimate of the frequency, duration
    
    and extent of human exposure to PCBs.              See 63 Fed. Reg. 35,384,
    
    35,385; U.S. E.P.A., Assessment of Risks Associated with the PCB
    
    Disposal Amendments (Versa, May 11, 1998).            To define the toxicity
    
    of PCBs, EPA used a numerical estimate of the cancer potency of
    
    PCBs (often called “cancer potency factor” or “C.F.”) of 4.0
    
    (mg/kg/day)-1.11    63 Fed. Reg.     at 35,386.
    
         GE argues that in setting the risk-based standards, EPA
    
    overestimated the health risk posed by PCBs.           According to GE, the
    
    record does not support EPA’s use of the C.F. of 4.0 (mg/kg/day)-1,
    
    and contends that the appropriate C.F. for PCBs is less than 2.0
    
    (mg/kg/day)-1.
    
         EPA counters that TSCA permits it to consider other factors
    
    such as   unknown    threats    to   human   health    or   the   environment.
    
    According to EPA, it raised the C.F. from the range of 0.1 to 2.0
    
    (mg/kg/day)-1 to 4.0 (mg/kg/day)-1 in order to protect against non-
    
    
         11
           To assess the risk of acquiring cancer (as opposed to a non-
    cancer health effect) from exposure to a substance, EPA uses a risk
    assessment method based on a non-linear model. The C.F. expresses
    the carcinogenic potential of the substance in question; the higher
    the value, the more likely the substance is to cause cancer at any
    particular dose level. When EPA published the PCB Spill Cleanup
    Policy, 52 Fed. Reg. 10,688, 10,696 (Apr. 2, 1987), the agency used
    a C.F. of 4.0 (mg/kg/day)-1 to develop the risk-based standards
    which formed the basis of the Proposed Rule.      EPA subsequently
    issued a new assessment of the cancer risk from exposure to PCBs
    that indicated that the upper bound C.F. that would be appropriate
    for assessing cancer risk from PCBs was 2.0 (mg/kg/day)-1. 1996
    Reassessment.
    
                                           24
    cancer and environmental risks.    In its Response to Comments, EPA
    
    states that:
    
              [while the 4.0 (mg/kg/day)-1 slope factor does
              not correspond with any of the cancer slope
              factors in the September 1996 report [the
              Reassessment], it does allow for additional
              protection from as yet unquantified risks from
              non-cancer human health effects and effects to
              the environment.
    
    
    U.S. E.P.A., Response to Comments Document on the Proposed Rule –
    
    Disposal of Polychlorinated Biphenyls (May 1998).
    
         EPA is in the process of conducting a comprehensive assessment
    
    of the non-cancer toxic effects of PCBs.12     According to EPA, it
    
    promulgated the Final Rule before the assessment was completed, in
    
    order to comply with the desires of the regulated community to
    
    finalize the rulemaking as soon as possible.    However, EPA states
    
    that it has already committed to reexamine the toxicity of PCBs and
    
    has no objection to a remand so that it can consider the results of
    
    the assessment. Therefore, we remand §§ 761.61(a) and 761.79(b) to
    
    give EPA an opportunity to complete its assessment and reconsider
    
    the Final Rule in light of its study.13
    
         12
           According to EPA the assessment of the health effects of
    PCBs will be completed by fiscal year 2000 or 2001. 65 Fed. Reg.
    1863.
         13
           GE further argues that, as a condition on the remand, we
    should direct that the remand be completed and a new rule be
    promulgated within three years of the mandate issuing in this case.
    See Florida Power & Light Co. v. Costle, 
    650 F.2d 579
    , 590 (5th
    Cir. 1981)(holding that “[i]n hearing a petition for review, a
    court of appeals may exercise equitable powers in its choice of
    remedy, as long as the court remains within the bounds of statute
    
                                      25
                                    B
             Decontamination of PCB-Contaminated Equipment
           and Structures for Distribution or Use in Commerce
    
         The Final Rule prohibits the distribution in commerce of any
    
    equipment or structures that have been contaminated with PCBs in
    
    excess of 50 ppm.         40 C.F.R. § 761.20(c)(5).               The    Final Rule also
    
    prohibits the use of equipment or structures that have been
    
    contaminated    with       PCBs    in    excess       of    50   ppm.         40    C.F.R.    §
    
    761.30(u).      The       rule    provides       a    single      exception         to    these
    
    prohibitions      where      the     equipment         or     structures           have   been
    
    decontaminated       in    accordance       with      Final      Rule   §     761.79.        GE
    
    contends   that      we    should       vacate       the    Final    Rule’s         stringent
    
    procedures     for        decontaminating             equipment         and        structures
    
    contaminated by PCBs because they are not supported by substantial
    
    evidence in the record and because EPA failed to abide by the
    
    notice and comment requirements.
    
                                       1
                      Decontamination of Painted Surfaces
    
         The     Final        Rule     states    that          painted      metal        surfaces
    
    
    
    and does not intrude into the administrative province.”). GE does
    not cite any cases in which a court, through an exercise of its
    equitable powers, imposed such a time limit on remand. Although we
    recognize that the PCB Mega-Rulemaking was an arduous seven-year
    affair and that GE will not obtain full relief until EPA completes
    further rulemaking on the cancer risk presented by PCBs, we decline
    to impose particular time limits in this area of activity within
    the province of the Executive Branch. If, following the remand, GE
    believes that EPA is unduly delaying the promulgation of a new
    rule, it may seek a writ of mandamus compelling EPA to expedite its
    rulemaking.
    
                                                26
    contaminated     by     spills    $    50    ppm     are    considered    to     be
    
    “decontaminated” if the paint is removed to Visual Standard No.2,
    
    Near-White     Blast    Cleaned       Surface   Finish,      of   the    National
    
    Association    of     Corrosion   Engineers        (“NACE”).14     40   C.F.R.    §
    
    761.79(b)(3)(I)(B).         GE    argues     that    EPA,   in    enacting     this
    
    provision, violated the notice and comment requirements of the APA
    
    by failing to mention the NACE standard in any preamble or
    
    proposed regulatory language, which had the effect of preventing
    
    potential comment on that standard.
    
    
    
                                         a
                                Notice and Comment
    
         The record reflects that despite GE’s protestations to the
    
    contrary, it had ample opportunity to comment on the requirements
    
    for decontaminating porous surfaces.                GE submitted two sets of
    
    comments calling for EPA to allow the decontamination of porous
    
    surfaces and offering suggestions for methods of decontamination.
    
    Its suggestions included blasting, scarification, and removal with
    
    solvents and abrasives, GE Comments, C1-242, at 77-80, and C1-303,
    
    at 20.    These and other comments demonstrate that GE knew that EPA
    
    was likely to consider a wide range of decontamination options for
    
    porous surfaces.       Because GE had knowledge of the problem EPA was
    
    attempting to solve and had full opportunity to comment on the
    
    
         14
              The NACE standard is a “Visual Standard for Surfaces of
    New Steel Centrifugally Blast Cleaned with Steel Grit and Shot.”
    
                                            27
    solution to the problem, GE fails to expose any violation of EPA’s
    
    notice and comment requirements.
    
    
                                      b
                          Arbitrary and Capricious
    
         GE   argues   that    Final   Rule    §   761.79(b)(3)(I)(B)       is   not
    
    supported   by   substantial    evidence       because:   (1)   there   is   no
    
    substantial evidence showing that EPA should require paint removal
    
    for decontamination, and (2) while the NACE standard adopted by
    
    EPA is tailored to a specific cleaning technology, no evidence in
    
    the record suggests that the cleaning methods authorized by EPA
    
    can be used to satisfy NACE.
    
         According to GE, EPA’s PCB Spill Policy (“Spill Policy”)
    
    previously defined painted surfaces as “impervious,” and allowed
    
    contaminated paint to be decontaminated by surface wiping.15                  52
    
    Fed. Reg. 10,705 (Apr. 2, 1987).          GE contends there is no evidence
    
    in the record to support EPA’s recent classification of painted
    
    metal surfaces as “porous,” and requiring complete removal of
    
    contaminated paint.       However, there is no evidence in the record
    
    that suggests that paint is not porous to spills of liquid PCBs
    
    and EPA provides a sensible explanation for the rule change.16                As
    
         15
           Under the PCB Spill Policy recently discovered contaminated
    painted surfaces could be decontaminated by wiping the paint so
    that the surface contamination was less than 10 µg/100 cm2.
         16
           EPA argues that the Spill Policy was badly           phrased in that
    it allowed the industry to use the wipe test on             old spills that
    were recently discovered.     EPA was persuaded              that in these
    situations the wipe test was inadequate to remove           PCBs after they
    
                                         28
    such, we reject GE’s argument that the painted metal surface
    
    provision of § 761.79(b)(3)(I)(B) must be vacated because EPA’s
    
    requirement    that   PCB    contaminated      paint     be   removed   is   not
    
    arbitrary and capricious.
    
         According to GE, compliance with the visual NACE standard
    
    cannot be achieved by using the cleaning methods authorized by EPA
    
    in the Final Rule.     See 40 C.F.R. § 761.79(b) (authorizing inter
    
    alia chopping, scraping, scarification, or the use of abrasives or
    
    solvents).    GE argues that the Final Rule effectively requires it
    
    to blast its contaminated equipment with grit/steel shot which
    
    will either destroy or severely diminish the economic value of the
    
    machines and eliminate the option of distributing the equipment in
    
    commerce for continued use.
    
         Contrary to GE’s assertion, EPA does not interpret the rule
    
    in a manner that would require GE to use grit/steel shot cleaning
    
    methods.     Rather, as EPA explains, parties can meet the standard
    
    by using the 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.      Because the Final Rule does not require
    
    paint to be removed by blasting the contaminated surface with
    
    grit/steel    shot,   we    conclude    that   it   is    not   arbitrary    and
    
    capricious.
    
                                           2
    
    
    had penetrated the paint.
    
                                           29
                                           Concrete
    
           The Final Rule allows an owner to use, but not distribute in
    
    commerce, concrete on which PCBs $ 50 ppm have been spilled.                        But
    
    this use is subject to a number of conditions.17                    First, the owner
    
    must clean accessible surfaces.               40 C.F.R. § 761.30(p)(ii).           After
    
    cleaning, the owner must then coat the surfaces and place                          signs
    
    warning of the presence of PCBs.                   40 C.F.R. § 761.30(p)(iii)(A),
    
    (B).        These post-cleaning conditions apply regardless of the
    
    residual level of PCB contamination in or on the concrete.                          For
    
    example, if concrete is cleaned to a level below the 10 µg/100 cm2,
    
    the owner must still coat the concrete and mark it as PCB-
    
    contaminated.
    
           GE    argues    that    Final   Rule        §   761.30(p)(1)(iii)     requires
    
    regulated entities to coat and mark concrete to a level below that
    
    which EPA has agreed does not pose a substantial risk of injury.
    
    Consequently,         GE   contends    the        record    does   not   support   such
    
    stringent      cleaning       requirements.            GE   also   argues   that   this
    
    cleaning requirement contradicts EPA’s long-standing Spill Policy,
    
    which does not impose such requirements if concrete is cleaned to
    
    the 10 µg/100 cm2 level.
    
           EPA counters that the 10 µg/100 cm2 requirement measures only
    
    the surface concentration of PCBs; not the amount of PCBs that
    
    
           17
          If the cleanup begins within 72 hours of the spill and the
    10 µg/100 cm2 level is reached, then the concrete can be used
    without restrictions. 40 C.F.R. § 761.30(u).
    
                                                 30
    have soaked into a porous material.    Surface cleaning of porous
    
    surfaces such as concrete will not clean up PCB spills that have
    
    soaked into the concrete.    Therefore, as    explained in the Final
    
    Rule, EPA requires that parties not only clean the spill area’s
    
    surface, but also coat and mark it in order to warn of possible
    
    deeper PCB contamination in the material.     63 Fed. Reg. at 35,398
    
    (“EPA believes that the use conditions specified in § 761.30(p)
    
    will effectively prevent exposure to any residual PCBs in the
    
    contaminated porous material and therefore continued use of this
    
    material will not present an unreasonable risk.”).
    
         The   record    shows   without    contradiction     that   the
    
    decontamination of concrete poses particular challenges because of
    
    its porousness.     Moreover, several commentors, including GE,
    
    commented that encapsulation (i.e. covering contaminated concrete
    
    with fresh concrete and/or a sealant) is a feasible means of
    
    preventing “wicking back” of PCBs to the surface.       GE Comments,
    
    R.C1-034, at 31; American Electric Power Comments, C1-029, at 15;
    
    Tenneco Gas Comments, C1-154, at 63.     Our review of the record
    
    leads us to conclude that EPA’s cleaning, painting and marking
    
    requirements are not arbitrary and capricious.
    
    
    
    
                                    V
                           Sierra Club Petition
    
         In its petition, Sierra Club challenges EPA’s promulgation of
    
    
    
                                     31
    several sections of the Final Rule relating to the disposal of PCB
    
    bulk product waste.18      Specifically, Sierra Club argues that: (1)
    
    EPA failed to provide notice and an opportunity for comment on
    
    Final Rule § 761.62(d), which permits the disposal of “PCB bulk
    
    product waste” as daily landfill cover and under asphalt road
    
    beds; (2) EPA failed to provide notice and an opportunity for
    
    comment on Final Rule § 761.62(b), which allows disposal of PCB
    
    bulk product waste in ordinary landfills regardless of the PCB
    
    concentration      in     the   waste;         (3)     that    Final   Rule      §
    
    761.62(b)(1)(I)’s assumption that PCB bulk waste product does not
    
    leach is not supported by substantial evidence; (4) that Final
    
    Rule § 761.62(b)(1)(ii)’s adoption of a water-based leachability
    
    test is not supported by substantial evidence.                     Essentially,
    
    Sierra Club challenges the Final Rule’s assumption that PCB bulk
    
    product    waste   does   not   leach        PCBs    and,   accordingly,   it   is
    
    permissible to allow the disposal of PCB bulk product waste in
    
         18
              PCB bulk product waste includes:
    
                 [p]lastics (such as plastic insulation from
                 wire or cable; radio, television and computer
                 casings;   vehicle    parts;    or   furniture
                 laminates); preformed or molded rubber parts
                 and   components;   applied    dried   paints,
                 varnishes, waxes or other similar coatings or
                 sealants; caulking; Galbestos; non-liquid
                 building demolition debris; or non-liquid PCB
                 bulk product waste from the shredding of
                 automobiles or household appliances from which
                 PCB small capacitors have been removed
                 (shredder fluff).
    
    Final Rule § 761.62(b)(1)(I).
    
                                            32
    landfills and under asphalt as roadbed.              Before we can reach the
    
    merits of     Sierra   Club’s   petition,     however,     we    must   consider
    
    whether it has standing.
    
          An association has standing to bring a suit on behalf of its
    
    members when: (1) its members would otherwise have standing to sue
    
    in their own right; (2) the interests it seeks to protect are
    
    germane to the organization's purpose; and (3) neither the claim
    
    asserted nor the relief requested requires the participation of
    
    individual members.      Hunt v. Washington State Apple Advertising
    
    Com’n, 
    432 U.S. 333
    , 343, 
    97 S. Ct. 2434
    , 2441, 
    53 L. Ed. 2d 383
    
    (1977); Texans United For a Safe Economy Educ. Fund v. Crown Cent.
    
    Petroleum    Corp.,    
    207 F.3d 789
    ,    792   (5th    Cir,    2000).    The
    
    individual      plaintiffs      can        satisfy     their      “irreducible
    
    constitutional minimum” of standing by demonstrating that: (1)
    
    they have suffered an actual or threatened injury; (2) the injury
    
    is "fairly traceable" to the defendant's action; and (3) the
    
    injury will likely be redressed if the plaintiffs prevail in the
    
    lawsuit.     Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560-61,
    
    
    112 S. Ct. 2130
    , 2136, 
    119 L. Ed. 2d 351
     (1992); Texans United, 207
    
    F.3d at 792.
    
          Sierra Club’s challenge to EPA’s rulemaking centers around
    
    the   TSCA’s procedural requirements that EPA provide notice and an
    
    opportunity to comment on proposed rules.                Such a challenge to
    
    EPA’s purported failure to abide by a procedural requirement in
    
    
    
                                          33
    rulemaking      is       analyzed       under        the    somewhat        more   lenient
    
    requirements of standing for procedural rights cases. See Florida
    
    Audubon     Soc.    v.    Bentsen,        
    94 F.3d 658
    ,     664-65     (holding   that
    
    petitioners’ standing in challenging IRS’s rulemaking, in which
    
    IRS    promulgated       a   tax   credit       for    gasoline      additives     without
    
    preparing an environmental impact, is determined in accordance
    
    with “procedural-rights” line of cases deriving from Lujan).                             In
    
    Sierra Club v. Glickman, 
    156 F.3d 606
     (5th Cir. 1998), we outlined
    
    the standing requirements for a plaintiff seeking redress for
    
    violations of procedural rights:
    
                 in a procedural rights case ... a plaintiff is
                 not held to the normal standards for
                 redressibility and immediacy. This does not
                 mean, however, that a procedural rights
                 plaintiff has standing merely because of the
                 government’s failure to comply with the
                 relevant procedural requirements.     Instead,
                 the plaintiff must show an injury that is both
                 concrete and particular, as opposed to an
                 undifferentiated interest in the proper
                 application of the law.
    
    Id. at 613.
    
           Sierra Club argues that EPA’s failure both to provide notice
    
    and comment in the promulgation of Final Rule §§ 761.62(b) and (d)
    
    and    to   support      Final     Rule    §§       761.62(b)(1)(I)       and   (ii)   with
    
    substantial        evidence      will     result       in   injury     to    the   health,
    
    environmental and recreational interests of Sierra Club members.
    
    According to Sierra Club, the Final Rule creates a risk that PCBs
    
    will    leach   from      bulk     product       wastes     in    either     landfills   or
    
    
    
                                                   34
    roadbeds and contaminate water supplies.      Sierra Club further
    
    contends that the use of PCB bulk product waste as daily landfill
    
    cover will result in a contamination of the ambient air with PCBs.
    
    To establish this injury in fact, Sierra Club relies on the
    
    affidavits of two Sierra Club Members, Dr. Neil Carman (“ Dr.
    
    Carman”)   and   Martha    Sinclair   (“Sinclair”)   (collectively
    
    “Affiants”).
    
         In his affidavit, Dr. Carman claims that he will sustain
    
    injuries because the Final Rule allows the disposal of PCB bulk
    
    product waste as landfill and as roadbed.   Dr. Carman states that
    
    “the landfill used by [his] town does not have an impermeable
    
    underlayer to prevent the migration of contaminants offsite.”
    
    Thus, the practices of disposing of PCB bulk product waste and
    
    using PCB bulk product waste as daily cover pose “a significant
    
    risk of PCB contamination to [his] neighborhood and his town’s
    
    water supply.”   Dr. Carman also expressed a concern that:
    
               if PCB contaminated road bed material was used
               in the reconstruction of Routes 71 and 290
               West as well as south MOPAC, those roads cross
               over the Edwards aquifer that in turn supplies
               drinking water to the City of Austin through
               significant flows into the Colorado River. I
               and my family also frequently swim at the
               Barton Springs pool that is fed directly by
               this aquifer. Because the asphalt road cover
               on our roads regularly allows water to enter
               the underlying road bed material through
               cracks, heaves and the many, omnipresent
               potholes, PCBs could leach from the roadbed
               material into Barton Springs and the City of
               Austin’s water supply.
    
    
    
                                     35
         In her affidavit, Sinclair states, that she regularly travels
    
    on roads that are subject to being repaired or replaced with
    
    asphalt.     According to Sinclair:
    
                 I ... would be at risk for exposure to PCBs
                 released into the air if PCB waste is
                 transported to road construction areas, and
                 stored at road construction areas in heaps or
                 in trucks. I am also at risk in breathing
                 dust released during road construction. PCB
                 contaminants could also enter the waters I use
                 for recreation and drinking when washed during
                 rainfall   and   flood   events    from   road
                 construction sites to the Ohio River and other
                 surface waters. The Ohio River serves as a
                 drinking water source and a          fisheries
                 providing additional routes of PCB exposure
                 for Ohioans including me.
    
     She also contends that disposal of PCB bulk wastes in landfills
    
    poses a     potential   risk   to   landfill     workers   and    contractors.
    
    However, a party may not base its Article III standing on alleged
    
    injuries     to   others.   Friends   of   the   Earth,    Inc.    v.   Laidlaw
    
    Environmental Services (TOC), Inc., --- U.S. ----, 
    120 S. Ct. 693
    ,
    
    704, 
    145 L. Ed. 2d 610
     (2000); Lujan 504 U.S. at 578, 112 S.Ct. at
    
    2146.     Accordingly, we consider only Carman and Sinclair’s claims
    
    of injury to themselves.
    
                                         A
                                Leach from Landfill
    
         Under the Final Rule, PCB bulk product waste is presumed to
    
    leach at levels less than the PCB leachate limit of 10 µg/liter.19
    
    Thus, PCB bulk product waste may be disposed of irrespective of
    
    
         19
              10 µg/Liter = 10 micrograms per Liter.
    
                                          36
    its actual concentration of PCBs.
    
          Sierra Club argues that the leach test, used by EPA to
    
    determine    that     PCB    bulk    product     waste    leaches   under   the   10
    
    µg/liter limit, is flawed because it does not properly simulate
    
    conditions that contain organic solvents, such as toluene and
    
    acetone.     According to Sierra Club, these organic solvents cause
    
    PCB bulk product waste to leach at levels higher than 10 µg/liter.
    
    Therefore, Sierra Club argues that PCB bulk product waste disposed
    
    of in landfills will leach into the ground below landfills, at
    
    levels significantly higher than 10 µg/Liter and contaminate the
    
    environment.
    
          Dr. Carman alleges that PCB bulk product waste disposed of in
    
    his town’s landfill may leach from the landfill and somehow enter
    
    the town’s water supply.            But Carman presents no facts to support
    
    this concern.        He produced no facts establishing the relative
    
    location of the landfill and the aquifer so that it is purely
    
    conjectual     that    PCB’s        could    leach   from     the   landfill      and
    
    contaminate his town’s water supply.                 This subjective concern,
    
    therefore, cannot serve as the basis for Sierra Club’s standing.
    
    As   the   Supreme     Court    has    explained,        “[s]tanding   is   not   an
    
    ingenious academic exercise in the conceivable, but as we have
    
    said requires, at the summary judgment stage, a factual showing of
    
    perceptible harm.”          Lujan, 504 U.S. at 556, 112 S.Ct. at 2139.
    
          This court and the Supreme Court have consistently held that,
    
    
    
                                                37
    in order to establish Article III standing, petitioner must “have
    
    a direct stake in the outcome.”                   See Sierra Club v. Cedar Point
    
    Oil Company, Inc., 
    73 F.3d 546
    , 555-56 (5th Cir. 1996); see also
    
    Friends of the Earth, 120 S.Ct. at 705.                     Moreover, “[i]t is the
    
    reality of the threat of [impending] injury that is relevant to
    
    the     standing       inquiry,        not         the     plaintiff’s        subjective
    
    apprehensions.”)        Los Angeles v. Lyons, 
    461 U.S. 95
    , 107, n.8, 
    103 S. Ct. 1660
    , 1668, 
    75 L. Ed. 2d 675
     (1983). In Friends of the Earth,
    
    for example, petitioner sued Laidlaw under the Clean Water Act for
    
    discharging pollutants into a river in excess of permit limits.
    
    --- U.S. ----, 120 S.Ct. at 702.                   Petitioner’s members testified
    
    inter   alia    that     they    had    used        the    river    for    recreational
    
    activities in the past and that, but for Laidlaw’s discharge of
    
    pollutants, they would continue to use the river.                         Id. at 704-05.
    
    The Supreme Court held that petitioner had stated an injury in
    
    fact because “the affidavits and testimony presented by FOE in
    
    this case      assert    that    Laidlaw’s          discharges,      and     the    affiant
    
    members’    reasonable         concerns           about    the     effects     of    those
    
    discharges,     directly        affected          those    affiants’       recreational,
    
    aesthetic, and economic interests.”                  Id.   at 705 (emphasis added).
    
    Similarly, in Cedar Point Oil, 73 F.3d at 546, this court held
    
    that Sierra Club had established an injury in fact where its
    
    members testified that Cedar Point’s discharge of pollutants into
    
    Galveston      Bay     would     directly          impair        their    enjoyment     of
    
    
    
                                                 38
    recreational activities on the Bay. Id. at 555-56.
    
         Unlike the petitioners in Friends of the Earth and Cedar
    
    Point Oil, Dr. Carman fails to establish any direct harm.          While
    
    the petitioners in Friends of the Earth and Cedar Point Oil
    
    presented uncontroverted evidence that the pollutants they were
    
    challenging had entered the waterways that they enjoyed, Carman
    
    has not established the possibility that PCB bulk product wastes
    
    disposed of in his town’s landfill could contaminate the aquifer
    
    that supplies his drinking water.         As such, Dr. Carman has not
    
    identified a concrete injury sufficient to confer Article III
    
    standing.     See Lujan, 504 U.S. at          566, 112 S.Ct. at 2139
    
    (“standing ... requires, at the summary judgment stage, a factual
    
    showing of perceptible harm.”).
    
    
    
                                       B
                                    Roadbed
    
         Sierra Club’s challenge to provisions in the Final Rule that
    
    allow disposal of PCB bulk product waste as roadbed material rests
    
    primarily on concerns that PCBs will leach from PCB bulk product
    
    waste disposed of in landfills.       Again, Sierra Club has failed to
    
    produce facts that establish the requisite injury in fact.
    
         Dr.    Carman’s   theory   of   injury   is   predicated   upon   the
    
    occurrence of a string of future hypotheticals -– that road
    
    construction will occur in proximity to the Edwards aquifer, that
    
    the construction crews will use PCB bulk product waste in the
    
    
                                         39
    roadbed, that PCBs will leach from the roadbed, and that those
    
    PCB’s will leach and contaminate aquifers or waterways.     Nothing
    
    in the Carman and Sinclair affidavits suggest that any of these
    
    predicate events are likely to occur.
    
         Even if we assume that road construction will occur over the
    
    Edwards aquifer, nothing in Dr. Carman’s affidavit suggests that
    
    the construction crews will likely use PCB Bulk Product Waste as
    
    road bed for those particular roads.     Moreover, Sierra Club has
    
    failed to establish any likelihood that, when used as roadbed, PCB
    
    Bulk Product Waste will leach PCBs.     Sierra Club does not assert
    
    that PCB bulk product waste disposed of as roadbed will come into
    
    contact with organic solvents, which trigger the leaching of PCB’s
    
    to harmful levels.    Thus, Sierra Club has presented no evidence
    
    that supports an inference that such PCB bulk product waste will
    
    leach harmful PCBs.    Finally, Sierra Club has failed to present
    
    any affidavits or other evidence explaining how PCBs, once leached
    
    from roadbeds, could migrate into aquifers and waterways.
    
         Unlike the petitioners in Friends of the Earth and Cedar
    
    Point Oil, petitioners in this case cannot show that they are
    
    likely to suffer any direct and concrete injury as a result of the
    
    PCB Mega Rule.   As we have explained, the requirement that a party
    
    demonstrate a direct and concrete injury in fact “is designed to
    
    limit access to the courts to those who have a direct stake in the
    
    outcome, as opposed to those who would convert the judicial
    
    
    
                                     40
    process into no more than a vehicle for the value interests of
    
    concerned bystanders.”   Cedar Point Oil, 73 F.3d at 546 (internal
    
    citations and quotations omitted).     Dr. Carman’s subjective fears
    
    and speculative string of events cannot possibly serve as the
    
    basis for standing.    See Los Angeles v. Lyons, 461 U.S. at 107,
    
    n.8, 103 S.Ct. at 1668 (“[i]t is the reality of the threat of
    
    repeated injury that is relevant to the standing inquiry, not the
    
    plaintiff’s subjective apprehensions.”) see also Glickman, 156
    
    F.3d at 613 (injury must be concrete and particular); cf. Texas v.
    
    United States, 
    523 U.S. 296
    , 300 
    118 S. Ct. 1257
    , 1259-60, 
    140 L. Ed. 2d 406
       (1998)(holding,   under   closely   related   ripeness
    
    doctrine, that Texas had not presented a justiciable claim because
    
    the proposed harm depended on the occurrence of numerous uncertain
    
    future events).
    
    
                                     C
                                  Airborne
    
         Sinclair hypothesizes that she will be injured by airborne,
    
    dust-centered PCBs that will be released into the environment
    
    during road construction.    However, no evidence in the record,
    
    except Sinclair’s subjective statement of belief, supports the
    
    conclusion that PCB bulk product wastes generate PCB-laden dust.
    
    There is also no evidence indicating that Sinclair uses or will be
    
    using a road that is built on roadbed containing PCB bulk product
    
    waste.    Therefore, Sinclair has failed to establish that, as a
    
    
    
                                      41
    result of EPA’s alleged failure to adhere to the notice and
    
    comment requirements, she suffers or is likely to suffer an injury
    
    in fact.
    
                                          D
    
         We conclude that Sierra Club has failed to demonstrate an
    
    injury in fact sufficient to confer Article III standing.                   The
    
    Affiants simply do not allege concrete injuries or threats of
    
    injury to their recreational, aesthetic, or economic interests.
    
    Friends of the Earth, --- U.S. ----, 120 S.Ct. at 705.                      The
    
    affidavits   do   not   demonstrate        that   Sinclair   and   Carman   are
    
    threatened with injury from PCB’s to any greater extent than any
    
    other person in the United States who drives on the country’s
    
    roadways and drinks water in a town that has landfills.                 Thus,
    
    Sierra Club has failed to allege that EPA’s promulgation of Final
    
    Rules §§ 761.62(b) and (d) will result in any tangible injury to
    
    any of its members.       Accordingly, we are without authority to
    
    consider Sierra Club’s petition.
    
    
    
                                      VI
    
         For the reasons stated above, we DISMISS USWAG and GE’s
    
    petitions for review of EPA’s PCB Mega-Rulemaking except for
    
    USWAG’s challenge to Final Rule § 761.35 and GE’s challenge to
    
    EPA’s estimate of the toxicity of PCBs in §§ 761.61(a) and
    
    761.67(b).   We REMAND § 761.35 to EPA in order to allow EPA to
    
    
    
                                          42
    fully respond to comments and to explain why it did not grant a
    
    national variance for electric utilities.            We REMAND §§ 761.61(a)
    
    and   761.79(b)   to   EPA   so   that    it   can   complete   its   ongoing
    
    assessment of the non-cancer health effects of PCBs and reconsider
    
    the rule in light of this study.         Because Sierra Club, through its
    
    members, has no standing to challenge the Final Rule we also
    
    DISMISS its petition for lack of jurisdiction.
    
    
    
    
                                         43
    

Document Info

DocketNumber: 98-60495

Filed Date: 11/14/2000

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (26)

Texans United Econ v. Crown Central Petrol , 207 F.3d 789 ( 2000 )

Consolo v. Federal Maritime Comm'n , 383 U.S. 607 ( 1966 )

Abbott Laboratories v. Gardner , 387 U.S. 136 ( 1967 )

Hunt v. Washington State Apple Advertising Comm'n , 432 U.S. 333 ( 1977 )

Los Angeles v. Lyons , 461 U.S. 95 ( 1983 )

Motor Vehicle Mfrs. Assn. of United States, Inc. v. State ... , 463 U.S. 29 ( 1983 )

Lujan v. Defenders of Wildlife , 504 U.S. 555 ( 1992 )

Texas v. United States , 523 U.S. 296 ( 1998 )

Ohio Forestry Assn., Inc. v. Sierra Club , 523 U.S. 726 ( 1998 )

Dickinson v. Zurko , 527 U.S. 150 ( 1999 )

Friends of Earth v. Laidlaw Environmental Services , 528 U.S. 167 ( 2000 )

environmental-defense-fund-inc-v-environmental-protection-agency-ad-hoc , 636 F.2d 1267 ( 1980 )

Florida Power & Light Company v. Douglas M. Costle, as ... , 650 F.2d 579 ( 1981 )

action-on-smoking-and-health-v-civil-aeronautics-board-action-on-smoking , 699 F.2d 1209 ( 1983 )

rollins-environmental-services-fs-inc-a-delaware-corporation , 775 F.2d 627 ( 1985 )

center-for-science-in-the-public-interest-v-department-of-the-treasury , 797 F.2d 995 ( 1986 )

action-for-childrens-television-v-federal-communications-commission-and , 821 F.2d 741 ( 1987 )

chemical-waste-management-inc-v-us-environmental-protection-agency , 869 F.2d 1526 ( 1989 )

Acadian Gas Pipeline System v. Federal Energy Regulatory ... , 878 F.2d 865 ( 1989 )

Corrosion Proof Fittings v. The Environmental Protection ... , 947 F.2d 1201 ( 1991 )

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