* Circuit Judge of the Ninth Circuit, sitting by designation. 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 Wa ste Activities Group2

(collectively “USWAG”) and General Electric Co. (“GE”) argue that

discrete portions of EPA’s Final Rule are too res trictive.

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 Substa nces Control Act

(“TSCA”), directing EPA to c ontrol 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.” R ollins 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 polychlorinat ed 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.3

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 auth orizing 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 initiat ed 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 each4

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, ap pliances, 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 Propo sed Rulemaking (“NPRM”), proposing amendments to,

among other things, controls on the use and storage of PCBcontaining 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 the5

rule goes too far and thus al lows 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 r ulemaking 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 w hether a ‘reasonable mind might accept’ a particular

evidentiary record as ‘adequate to support a conclusion.’”

Dickinson v. Zurko

, 527 U.S. 150, 162, 1 19 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 inconsisten t conclusions from the

evidence does not prevent an administrative agency’s finding from

bei ng supported by substantial evidence.’” C orrosion Proof6

Fittings v. EPA

, 947 F.2d 1201, 1213 (5 th 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 m ore 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. C enter for Science in the Public Interest v.

Hodel

, 797 F.2d 99 5, 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 standa rds 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 Pi peline 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.

,7

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 genera lly 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

re buttable 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 co ntext 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 st andard of review

only to those EPA decisions permitting the use of P CBs. 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 to8

the extent supported by subst antial evidence. Nothing in the

s tatutory scheme suggests that EPA must support by substantial

evidence either its decision not to act or it s decision not to

craft as large an exemption as petitioners would like. A

petitioner may neve rtheless challenge such a decision, or

indecisio n as the case may be, but they must do so as most

petitioners do in most informal rulemakings, by showing tha t the

agency acted arbitrarily and capriciously. S ee 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 unreasonabl e risk of injury to

health or the environment. Petitioner’s reliance on E DF is

misp laced. In E DF

, 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. I d. We agree with this conclusion and, as indicated9

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 us e or expand the use of PCBs. When a

petitioner challenges an EPA rule res tricting 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 pr eempt state or local

PCB c leanup, 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] of10 this title ( other t han 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 a dopted under authority of the Clean

Air Act or any Federal law, or (iii) prohibits

the use of such substance o r 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 also1 40 C.F.R. § 761.50(a)(6) provides that “[a]ny person storing

or di sposing 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 repor ts, 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

u nder this section is responsible for determining and compl ying

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 re viewable regulation for purposes of

judicial review. C hemical Waste Management v. EPA

, 869 F.2d 1526,

1533 (D.C. Cir. 1989) (holding that a regulatory interpretation in

prea mble to a final rule was ripe for review because EPA had

arrived at its ultimate decision on the issue).

11 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

preamble 2 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 conf licts

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 preempt12

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 o rder 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 h ardship 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 (5t h Cir. 1998) (citing N ew

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 questi on 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 some13

hardship in order to establish ripeness. S ee American Forest

, 137

F.3d at 296 (holding that purely legal is sue was ripe for review

because injuries we re 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 th at purely legal issue of whether Rocky Mountain

was liable to indemnify Chevron for any plug and abandon

obligations was ripe because there wa s 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 o r local

regulations that it contends TSCA should preempt. Nor has USWAG

offered evidence that it will suffer hardship i f 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 to3 “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, an d pipes. 40

C.F.R. § 761.3.

14 store PCB Articles 3 for reuse. 40 C.F.R. § 761.35. Under §

761.35, an owner/operator may store PCB A rticles indefinitely in

storage units const ructed 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 Art icle: (1) follows the use

and marking requi rements 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 t han 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 62,822.4 See 47 Fed. Reg. 37,342, 37344 (Aug. 25, 1982). S ee 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, s witches, and

voltage regulators)(text of § 761.30(h)(1)(I)).

15 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 st orage 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. I d. EPA further

contends that it became aware of reports of electrical equipment

“held ‘in storage’” for prolonged periods of time and “abuses” of16

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 limit ations 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

elimi nated 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

USW AG also argues that EPA failed to respond to industry

comments requesting a national variance from compliance with this5 “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 rule for electric utilities. Section 553(c) of the APA requires an

agency to “in corporate 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. S ee 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 be cause EPA

failed to respond to fifteen comments spe cifically requesting a

national variance from § 761.35 for electrical utilities.

EPA admits that it did not state explicitly why it declined to

grant indus try 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 exe mption 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 in6 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 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 appropria te 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,7 ppm = parts per million.

19 we remand, without vacatur, Final Rule § 761.35 for EPA to provide

a reasoned statement of why it did not gr ant a national variance

for the electric utility industry.

C

Small Transformers

Another issue that EPA considered in the rulemaking process

was the adoption of as sumptions for classifying transformers

containing PCBs for the purpose of deter mining 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 p pm 7

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 “PCBcontaminated Electrical Equipment” and are subject to less onerous

use controls; and transformers containing < 50 ppm PCBs generally

are not regula ted 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 regarding20 numbers of small transformers or other

electrical equipment that contains PCBs

.... Some examples of this type of equ ipment 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 w ould 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 ex plaining why EPA should not include “small

transformers” within the regulatory a ssumption rule for “PCB

Transformer s.” In addition to providing EPA with information on

the uses and manufacture of t he 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,8 The regulatory assumptions apply only to untested

equipment. An owner of PCB-containing electrical equipment can

establish the actual PCB concentration in th e equipment, either

through testing or the use of qualified documentation, and not rely

on the regulatory assumptions. 6 3. 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 that data is not part of the rulemaking record.

On the basis of the survey results, USWAG urged E PA not to

include “small transformers” within the regulatory assumption rule

that would c lassify them as “PCB Transformers.” Instead, USWAG

urged EPA to include “small transformers” within the re gulatory

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 esse ntially 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, E PA concluded that the following

transformers could be assumed to contain less than 50 ppm PCBs (and

hence not subject to any PCB cont rols 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-m ounted and pole-top9 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 transform ers. 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 ext e nsively 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 some1 0 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 tr ansformers to avoid properly disposing

them. 56 Fed. Reg. at 26,741.

23 transformer owners 10 and operators support the promulgation of the

assumption rule.

W e 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 da ta 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 provision s 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 re mediation and11 To assess the risk of acquiring cancer (as opposed to a noncancer 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 n ew 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/d ay)

- 1

. 1996

Reassessment.

24 decontamination options based on: (1) EPA’s estim ate of the

toxicity of PCBs; and (2) EPA’s estimate of the frequency, duration

and extent of human exposure to PCBs. S ee 63 Fed. Reg. 35,384,

3 5,385; 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 estim ate of the cancer potency of

PCBs (often cal led “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 counter s 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-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 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. 13and 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 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 contaminate d 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 structur es that have been

contaminated with PCBs in excess of 50 p pm. 40 C.F.R. §

761.30(u) . The rule provides a single exception to these

prohibitions where the equip ment or structures have been

decontaminated in acco rdance with Final Rule § 761.79. GE

contends that we should vacate the Final R ule’s stringent

procedures for decontaminating equipment an d 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 surfaces14 The NACE standard is a “Visual Standard for Surfaces of

New Steel Centrifugally Blast Cleaned with Steel Grit and Shot.”

27 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 o f Corrosion Engineers (“NACE”). 1 4 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 o r

proposed regulatory language, which h ad the effect of preventing

potential comment on that standard.

a

Notice and Comment

Th e record reflects that despite GE’s protestations to the

contrary, it had ample opportunity to comment on the requirements

for decontaminating poro us 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

atte m pting to solve and had full opportunity to comment on the15 Under the PCB Spill Policy recently discovered contaminated

painted surfaces could be d econtaminated by wiping the paint so

that the surface contamination was less than 10 μg/100 cm 2

.

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 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

f or decontamination, and (2) while the NACE standard adopt ed by

EPA is tailored to a specific cleaning technology, no evidence in

the record suggest s 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,” an d allowed

contaminated paint to be decontam inated by surface wiping. 1 5 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

contamina t ed 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 Ashad penetrated the paint.

29

such, we reject GE’s argument that the painted metal surface

provision of § 761.79(b)(3)(I)(B) must be vacated be c ause 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 i nter

alia chopping, scraping, scarification, or the use of abrasives or

solvents). GE argues that the Final Rule effectively requires it

t o blast its contaminated equipment with grit/steel sho t 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 assert ion, EPA does not interpret the rule

in a manner that would require GE to use grit/steel shot cleaning

m e thods. 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 o f foreign matter except for

light shadows or streaks. Because the Final Rule does not require

paint to be removed by blasting the contam inated surface with

grit/steel shot, we conclude that i t is not arbitrary and

capricious.

217 If the cleanup beg ins within 72 hours of the spill and the

10 μg/100 cm 2 level is reached, then the concrete can be used

without restrictions. 40 C.F.R. § 761.30(u).

30 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 cm 2

,

the owner must st ill coat the concrete and mark it as PCBcontaminated.

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 clean ing 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 cm 2 level.

EPA counters that the 10 μg/100 cm 2 requirement measures only

the surface c o ncentration of PCBs; not the amount of PCBs that31

have soak e d 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 re q uires 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 an y residual PCBs in the

contaminated po rous material and therefore continued use of this

material will not present an unreasonable risk.”).

The rec ord 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. G E Comments

,

R.C1-034, at 31; American Electric Power Comments

, C1-029, at 15;

Tenneco Gas Comments

, C 1-154, 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 of18 PCB bulk product waste includes:

[p]lastics (such as plastic insulation from

wire or cable; radio, television and computer

casings; vehic le 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 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 opportuni t y for comment on

Final Rule § 761.62(d), which permits the disposal of “PCB bulk

product waste” as daily la ndfill cover and under asphalt road

beds; (2) EPA failed to provide notice and an opportunity for

comment on Fina l Rule § 761.62(b), which allows disposal of PCB

bulk product wast e 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 in33

landfills and under asphalt as roadbed. Before we can reach the

merits of Sierra Club’s petition, how e ver, 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 o wn 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 participati o n of

individual members. H unt v. Washingto n 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 Cor p

. , 207 F.3d 789, 792 (5th Cir, 2000). The

individual plaintiffs can satisfy their “irreducible

constitutional minimum” of standi n g by demonstrating that: (1)

they have suffered an actual or threatened injury; (2) the injury

is "fairl y traceable" to the defendant's action; and (3) the

injury will likely be redressed if the plaintiffs prevail in the

lawsuit. L ujan v. Defenders of Wildlife

, 504 U

. S. 555, 560-61,

112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Texan s 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 requ irement in34

rulemaking is analyzed under the somewhat mor e lenient

requirements of standing for procedural rights cases. S ee Florida

Audubon Soc. v. Bentsen

, 94 F.3d 658, 6 64-65 (holding that

petitioners’ standing in challenging IRS’s rulemaking, in which

I R S promulgated a tax credit for gasoline additives without

preparing an environmental impact, is determined in a c cordance

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 requiremen ts 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 h as standing merely because of the

go v ernment’s failure to comply with the

relevant procedural requirements. Instead,

the plaintiff must show an injury that is both

conc rete and particular, as opposed to an

undifferentiated in t erest 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 wi ll result in injury to the health,

environmental and recreational interests of Sierr a Club members.

According to Sierra Club, the Final Rule creates a risk that PCBs

wil l leach from bulk product wastes in either landfills or35

roadbeds and contaminate wate r 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 C l ub Members, Dr. Neil Carman (“ Dr.

Carman”) and M a rtha Sinclair (“Sinclair”) (collectively

“Affiants”).

In his affidavit, Dr. Carman claims t hat 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 im p ermeable

underlayer to prevent the migration of contaminants offsite.”

Thus, the practices of disposing of PCB bulk produc t waste and

u s ing PCB bulk product waste as daily cover pose “a significant

risk of PCB con tamination to [his] neighborhood and his town’s

water supply.” Dr. Carman also expressed a concern that:

if PCB contaminated road bed material was used

i n 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 A ustin through

significant flows into the Colorado River. I

a nd 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 wa ter to enter

the u n derlying road bed material through

cracks, heaves and the many, omnipresent

pot holes, PCBs could leach from the roadbed

material into Barton Spr ings and the City of

Austin’s water supply.19 10 μg/Liter = 10 micrograms per Liter.

36 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 t he air if PCB waste is

transported to road constructi o n 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

r a infall 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

p r oviding 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 lan d fill 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 of37

its actual concentration of PCBs.

Sierra Club argues that the leach test, use d by EPA to

determine that PCB bulk product waste l eaches under the 10

μg/liter lim it, is flawed because it does not properly simulate

conditions that contain or ganic 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, a t

levels significantly higher than 10 μg/Liter and contamin ate 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 cou l d leach from the landfill and

contaminate his town’s water supply. This subjective concern,

therefore, cannot serve as the basis for Sierra Clu b’s standing.

As the Supreme Court has explai ned, “[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,38

in order to establish Article III standing, petitioner must “have

a direct stake in the outcome.” S ee Sierra Club v. Cedar Point

Oil Company, Inc.

, 73 F.3d 546, 555-56 (5th Cir. 1996); see also

Friends of t he Earth , 120 S.Ct. at 705. Moreover, “[i]t is the

reality of the threat of [impending] injury that is rel e vant to

the standing inquiry, not the plaintiff’s subjective

apprehensions.”) L os 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 pollut ants 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. I d. at 704-05.

The Supreme Court hel d that petitioner had stated an injury in

fac t because “the affidavits and testimony presented by FOE in

this case assert that Laidlaw’s discharg e s, and the affiant

members’ reasonable concern s about the effects of those

discharges, dire c tly affected those affiants’ recreational,

aesthetic, and economic interests.” I d. at 705 (emphasis added).

Similarly, in Cedar Point Oil

, 73 F.3 d 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

Galve ston Bay would directly impair their enjoyment of39

recreational activities on the Bay. Id. at 555-56.

Unlike the petiti oners in F riends of the Earth and Cedar

Point Oil

, Dr. Carman fails to establish any direct harm. While

the petitione r s in Friends of the Earth and Cedar Point Oil

presented uncontroverted evidence that the pollutants t hey were

challenging had entered the waterwa y s that they enjoyed, Carman

has not established the possibility that PCB bulk product w astes

disposed of in his town’s landfill co uld contaminate the aquifer

that supplies his drinking water. As such, Dr. Carman has not

identif ied a concrete injury sufficient to confer Article III

standing. S ee 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 produ c t

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 f uture hypotheticals -– that road

construction will occur in proximity to the Edwards aquifer, that

the construction cr e ws will use PCB bulk product waste in the40

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 affid a vits 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 Was t e 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 s u ch 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 sho w 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 judicial41

process into no mor e than a vehicle for the value interests of

concerned bystanders.” C edar Point Oil

, 73 F.3d at 546 (internal

citations and quotations omitted). Dr. Carman’s subjective fears

and speculative string of events cannot po ssibly serve as the

basis for standing. S ee 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 subje ctive apprehensions.”) s ee 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 wil l be injured by airborne,

d ust-centered PCBs that will be released into the environment

durin g road construction. However, no evidence in the record,

except Sinclair’s subjective statement of belief, supports the

conclus ion 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 a42

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 fail ed to demonstrate an

injury in fact sufficient to confer Article III stand i ng. The

Affiants simply do not allege concrete injuries or thre ats of

injury to their recreational, aesthetic, or economic interests.

Friends of t he Earth , --- U.S. ----, 120 S.Ct. at 705. The

affidavits do not demonstra te that Sinclair and Carman are

threatened with injury from PCB’s t o any greater extent than any

other person in the United States wh o drives on the country’s

roadways and drinks water in a town that has landfi lls. 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 reaso ns stated above, we DISMISS USWAG and GE’s

petitions for review of EPA’s PCB Mega-Rulemaking except for

USWAG’s chall e nge to Final Rule § 761.35 and GE’s challenge to

EPA’s estimat e of the toxicity of PCBs in §§ 761.61(a) and

761.67(b). We REMAND § 761.35 to EPA in order to allow EPA to43

fully res pond 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 c h allenge the Final Rule we also

DISMISS its petition for lack of jurisdiction.