DATE: August 22, 2000
TO: Environmental Regulatory Action Committee(ERAC)
FROM: Pamela A. Lacey, Senior Managing Counsel
RE: Court Decision on PCB Mega Rule Central and South West Services, Inc. v. EPA
Decision in PCB Mega Rule Challenge
- On August 15, 2000, a federal appeals court issued a mixed opinion on EPA’s Polychlorinated Biphenyl (PCB) Mega Rule. Central and South West Services, Inc. v. EPA (5th Cir. Aug. 15, 2000). There is a potentially useful decision on storage for reuse and on-site cleanup. However, the court rejected several other industry challenges.
A copy of the decision is posted on www.aga.org under Environmental Issues on the PCB page.
- To refresh your memory, in 1998, the Utility Solid Waste Activities Group (USWAG), General Electric, Sierra Club and others challenged certain aspects of EPA’s June 1998 PCB Mega Rule. AGA did not join the court challenge. Instead, AGA focussed its efforts on negotiating the Natural Gas Q&A Guidance that allows a more flexible interpretation of the rules for managing PCBs in natural gas pipeline systems.
Court Remands Storage for Reuse
- USWAG argued (in essence) that EPA did not meet its burden to show why the time limit imposed by section 761.35 on storage for reuse of PCB articles should apply to transformers and other utility equipment that can last for 40 years or more.
- Section 761.35 imposes a 5-year limit on storage for reuse. This can be extended only with written permission from the EPA Regional Administrator. To obtain an extension, a utility would have to provide an "item-by-item justification." The rule also allows the Regional Administrator to impose any conditions deemed necessary to protect health or the environment.
- The court agreed that EPA did not provide an adequate explanation why this restriction should apply to utility equipment. But the court did not vacate 40 C.F.R. § 761.35. Instead, it remanded the provision to EPA for a better explanation regarding why EPA did not exempt electric utility equipment from the storage for reuse time limitations. The court declined to vacate the rule, noting that "EPA may well be able to justify its decision to refuse to promulgate a national variance for the electric utilities."
As EPA will be reviewing 761.35, there may be an opportunity to coordinate with USWAG to seek a longer time for storing gas and electric utility equipment that has a long useful life.
- Remember that Section 761.30(i)(3) allows the reuse of PCB-contaminated (50-500 ppm) drained natural gas pipe and appurtenances. If you have excavated pipe that exceeds that threshold, and you do not opt to decontaminate, that pipe would not be eligible for reuse or the storage for reuse provisions. Instead, see the storage for disposal provisions and related Q&A guidance.
Court Ducks Preemption Issue
- USWAG also challenged EPA’s statement in the preamble to the final rule that the Toxic Substances Control Act (TSCA) does not preempt more stringent state or local PCB cleanup, storage, and disposal regulations.
- The court declined to rule on the merits, finding that the issue is not ripe because USWAG did not identify any particular state or local PCB rule that had imposed hardship on its members, and that TSCA should preempt.
Court Remands Risk-Based Site Cleanup Standards
- General Electric (GE) challenged the site cleanup standards arguing that in setting risk-based standards, EPA overestimated the health risk posed by PCBs. EPA conceded that the risk factor overstated the cancer risk, but argued that TSCA allows EPA to consider unknown threats. EPA raised the risk factor to cover non-cancer and environmental threats until it could complete its study of non-cancer risks.
- The court did not vacate the standards, but it did remand the site cleanup and decontamination standards in 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." Court Rejects Challenges to Porous Concrete Cleanup Standard
- GE also challenged the cleanup standards for concrete established in the June 1998 Mega Rule in 40 C.F.R. § 761.30(p)(ii). The court rejected these challenges.
- Note however that USWAG and GE have a separate challenge pending in the D.C. Circuit against the June 1999 Technical Correction to the concrete standard. The 5th Circuit decision does not address that separate challenge.