Util Solid Wst Activ v. EPA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2000 Decided January 30, 2001

No. 99-1372

Utility Solid Waste Activities Group, et al.,
Petitioners

v.

Environmental Protection Agency and
Carol M. Browner, Administrator, United States
Environmental Protection Agency,
Respondents

Consolidated with
No. 99-1374

On Petitions for Review of an Order of the
Environmental Protection Agency

Angus Macbeth argued the cause for petitioners. With
him on the briefs were Christopher L. Bell, Patricia K.

Casano, Douglas H. Green, John L. Moore, Jr. and Heather
E. Gange.

Daniel M. Flores, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the briefs was
Lois J. Schiffer, Assistant Attorney General. Christopher S.
Vaden, Attorney, U.S. Department of Justice, entered an
appearance.

Before: Williams, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: Utility Solid Waste Activities
Group and General Electric petition this court to vacate in
part an alteration of the Environmental Protection Agency's
rules regulating the use of porous substances contaminated
by polychlorinated biphenyls ("PCBs"). PCBs are outstand-
ing insulators and do not burn easily--characteristics that
make them useful in transformers, capacitors, and other
electrical equipment. PCBs are also carcinogenic and toxic,
and may cause immune system suppression, liver damage,
endocrine disruption in humans and animals and skin irrita-
tion. These dangers are compounded by the remarkable
stability of PCB compounds, which bioaccumulate in fatty
tissue and are readily absorbed through the skin and respira-
tion, as well as through ingestion of animals exposed to PCBs.

In the 1976 Toxic Substances Control Act ("TSCA"), Con-
gress singled out these chemicals for special treatment. 15
U.S.C. ss 2601, 2605(e). The Act forbid the "manufacture,
processing, distribution in commerce or use" of any PCB
except in a "totally enclosed manner." 15 U.S.C.
s 2605(e)(2)(A). The EPA Administrator had authority to
waive the restriction by rule but only if it would not present
an unreasonable risk of injury to health or the environment.
15 U.S.C. s 2605(e)(2)(B). We are told that by January 1,
1978, when these measures took effect, nearly all manufactur-
ing of PCBs had ceased.

In 1987 EPA published a PCB Spill Policy establishing
cleanup and decontamination standards for spills of PCBs at
concentrations of greater than or equal to ("