Utility Solid Waste Activities Group v. EPA

• Decision Date: 30 January 2001
• Docket Number: No. 99-1372,99-1372
• Citation: 236 F.3d 749
• Parties: (D.C. Cir. 2001) Utility Solid Waste Activities Group, et al., Petitioners v. Environmental Protection Agency and Carol M. Browner, Administrator, United States Environmental Protection Agency, Respondents & 99-1374
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 749

236 F.3d 749 (D.C. Cir. 2001)

Utility Solid Waste Activities Group, et al., Petitioners v. Environmental Protection Agency and Carol M. Browner, Administrator, United States Environmental Protection Agency, Respondents

No. 99-1372 & 99-1374

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2000

Decided January 30, 2001

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 outstanding 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 irritation. These dangers are compounded by the remarkable stability of PCB compounds, which bioaccumulate in fatty tissue and are readily absorbed through the skin and respiration, 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. §§ 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. § 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. § 2605(e)(2)(B). We are told that by January 1, 1978, when these measures took effect, nearly all manufacturing 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 (">") 50 parts per million ("ppm") that occurred after May 3, 1987. 40 C.F.R. §§ 761.120-761.135.¹ Under the Spill Policy, solid surfaces, including concrete, which were cleaned to a surface concentration of 10 micrograms of PCBs per 100 square centimeters ("10 µg/100 cm2") could be used without restrictions. See, e.g., 40 C.F.R. § 761.125(b)(1)(i), (c)(4)(ii). The Spill Policy, including the 10 µg/100 cm2 surface standard, remains in effect today.

On June 29, 1998, EPA promulgated major amendments to the PCB regulations ("PCB Mega Rule"). 63 Fed. Reg. 35,384 (1998). This PCB Mega Rule set forth an additional option for spills of (">") 50 ppm PCBs onto concrete, provided that the concrete could be "decontaminated" by cleaning to 10 µg/100 cm2 PCBs, if the decontamination began within 72 hours of the spill. 40 C.F.R. § 761.79(b)(4).² After promul- gation of the PCB Mega Rule, porous surfaces contaminated by spills of (">") 50 ppm PCBs could be used without restrictions if they had been cleaned up in accordance with the PCB Spill Policy or decontaminated in accordance with § 761.79. See 40 C.F.R. §§ 761.20(c)(5) and 761.30(u).

During the development of the PCB Mega Rule, the ques- tion whether PCB contaminated surfaces that did not meet the cleanup or decontamination standards could be used was the subject of extensive public comment and inquiry by EPA. See 63 Fed. Reg. at 35,398; Informal Public Hearing Disposal of Polychlorinated Biphenyls (June 6-7, 1995), at 87-88, 100-01; Comments of Chemical Manufacturers Association, USWAG and NEMA on proposed PCB Mega Rule at 26-28; EPA Response to Comments Document at 41 (May 1998). Commenters pointed out that, under EPA's interpretation of the TSCA, buildings with PCB-contaminated porous surfaces (e.g., with concrete or wooden walls or floors) could not be used, even if the risks from exposure were trivial, unless the contaminated surfaces were removed. Id.

Responding to these comments, EPA promulgated 40 C.F.R. § 761.30(p) to authorize the continued use of porous surfaces contaminated by spills of PCBs "regulated for dis- posal" (i.e., PCBs at concentrations (">") 50 ppm), provided certain cleaning, painting and marking conditions were met.³

The scope of § 761.30(p) established by the PCB Mega Rule was:

(p)Continued use of porous surfaces contaminated with PCBs regulated for disposal by spills of liquid PCBs.⁴

(1)Any person may use porous surfaces contaminated by spills of liquid PCBs at concentrations of (">") 10 µg/100 cm2 for the remainder of the useful life of the surfaces and subsurface material if the following conditions are met:....

40 C.F.R. § 761.30(p) (1998). Under this provision, the re- quirements in § 761.30(p)-i.e., the cleaning, painting and marking requirements-were triggered when (1) a porous surface was contaminated by a spill of PCBs "regulated for disposal" (i.e., concentrations (">") 50 ppm PCBs), and (2) the spill resulted in a PCB surface concentration of greater than 10 µg/100 cm2. EPA explained:

EPA agrees with comments that the removal of porous materials contaminated by spills of liquid PCBs is eco- nomically burdensome and unnecessary where release of and exposure to the PCBs can be controlled. 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.

63 Fed. Reg. at 35,398. In other words, surfaces that were contaminated at PCB concentrations (">") 10 µg/100 cm2 did not pose an unreasonable risk if they were cleaned, painted and marked in accordance with § 761.30(p). Unlike the Spill Policy and the concrete decontamination provision, cleanup did not have to occur within a set time period. Compare 40 C.F.R. § 761.79(b)(4) and 40 C.F.R. § 761.125(b)(1)(iii), (c)(1); see also supra note 2.

On June 24, 1999, without notice and comment, EPA amended the PCB Mega Rule. EPA called the changes minor technical amendments. 64 Fed. Reg. at 33,756. The amendment challenged here repealed the threshold criterion in § 761.30(p)(1) that PCBs had to be present on the porous surface at a surface concentration of (">") 10 µg/100 cm2 to trigger the exposure controls. The revised text of § 761.30(p)(1) reads as follows:

(p)Continued use of porous surfaces contaminated with PCBs regulated for disposal by spills of liquid PCBs.

(16)Any person may use porous surfaces contaminated by spills of liquid PCBs at concentrations (">") 50 ppm for the remainder of the useful life of the surfaces and subsurface material if the following conditions are met....

40 C.F.R. § 761.30(p)(1) (emphasis added).

The original triggers for § 761.30(p) were a PCB concen- tration per unit of volume spilled (i.e., (">") 50 ppm) that resulted in a PCB surface concentration per unit of area (i.e., 10 µg/100 cm2). The new trigger is now based solely on the PCB concentration in the material spilled. The resulting surface concentration and potential exposure level thus be- came immaterial.

I.

The Administrative Procedure Act's general rulemaking section, 5 U.S.C. § 553, sets down certain procedural requirements with which agencies must comply in promulgating legislative rules: there must be publication of a notice of proposed rulemaking; opportunity for public comment on the proposal; and publication of a final rule accompanied by a statement of the rule's basis and purpose. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 523-24 (1978). That EPA did not comply with the notice and comment requirements of APA § 553 in amending § 761.30(p) is certain. The question is whether EPA's justifications for not doing so will save the amended rule.

A.

EPA represents to us that it altered § 761.30(p) in order to correct language resulting from an erroneous use of the Word Perfect find/replace command in the drafting of the regulation. Declaration of Dr. John H. Smith at 2 (June 23, 2000). We will accept this explanation. The question remains whether EPA needed to comply with the APA in making the correction. EPA thinks not because it possesses "inherent power" to correct "technical errors." It relies on a line of cases beginning with American Trucking Ass'ns v. Frisco Co., 358 U.S. 133 (1958), for the proposition that agencies may correct their mistakes without complying with the APA's procedural requirements. Our court has never recognized such an "inherent power" in the rulemaking context, and we decline to do so now.

The Supreme Court decision just cited dealt with the Interstate Commerce Commission's approval of the acquisition, by a wholly-owned subsidiary of a railroad, of operating rights of several motor carriers. Id. at 135. When the

Commission later issued certificates of public convenience and necessity, it failed to include language present in its reports reserving to the Commission the power to impose restrictions and modifications. Id. at 137. The Commission discovered the oversight, reopened the acquisition proceedings, gave notice to the parties and, after further proceedings in which the parties

participated, ordered the certificates modified to reflect this limitation. Id. at 137-38. The Supreme Court affirmed the order. The Court noted that Fed. R. Civ. P. 60(a) grants courts the power to correct clerical errors, and held that the Commission possessed the same power...