Central and South v. EPA

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