Central and South v. EPA ( 2000 )

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
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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
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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.
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