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Sierra Club v. United States EPA



The Ninth Circuit held that the Environmental Protection Agency (EPA) had no authority to promulgate a final rule which allowed importation of polychlorinated biphenyls (PCBs) into the United States for purposes of disposal, because the rule violated the Toxic Substances Control Act (TSCA).[1] The court also held that the Sierra Club was not required under Rule 15(c) of the Federal Rules of Appellate Procedure to serve notice under its petition for review on all of the commentators and witnesses of the informal rulemaking.

The court first examined the issue of notice under rule 15(c), which imposes upon a petitioner the obligation of serving “a copy [of the petition for review] on all parties who shall have been admitted to participate in the proceedings before the agency.”[2] In this case, more than three hundred groups, individuals, and organizations provided comments and input to EPA during the administrative rulemaking process. However, the court held that in an informal rulemaking, while any interested group or person may submit written or oral comments to the agency, no one is “admitted to participate in the proceedings,”[3] and therefore no one becomes a party in a formal administrative adjudication through commenting. Concomitantly, the court granted the Sierra Club’s motion to dispense with service of its petition on the individuals and groups who submitted their comments during the rulemaking.

The Ninth Circuit based its analysis of EPA’s authority to promulgate the rule allowing importation of PCBs for disposal on the Chevron[4] test. Under the rule in question, titled the “Import for Disposal Rule,” EPA stated “it is no longer necessary for persons who wish to import PCBs for disposal in accordance with this rule to apply for case-by-case exemptions under [TSCA] § 6(e)(3).”[5] Instead, under EPA’s rule importers must merely submit notice to EPA at least forty-five days prior to the date they intend to bring PCBs into the United States. If notice is provided in a timely and complete manner once per year, a party may “continue importing indefinitely without interruption.”[6]

The court found that the statutory language of TSCA showed clear congressional intent regarding the regulation, treatment, and disposal of PCBs, and that this intent was contrary to EPA’s rule. TSCA section 6(e)(3)(A)(i) categorically bans the manufacture of PCBs, stating that “no person may manufacture any polychlorinated biphenyl after two years from January 1, 1977.” TSCA section 2(7) defines the term “manufacture” to include “import[ing PCBs] into the customs territory of the United States.” Under section 6 of the statute, EPA only has the authority to promulgate regulations that prescribe methods of PCB disposal which are consistent with this ban.

There is only one exception to TSCA’s broad ban on the manufacture and importation of PCBs. Section 6(e)(3)(B) allows the EPA administrator to grant an exemption if the following conditions are met: (1) she determines that “an unreasonable risk of injury to health or environment would not result”, (2) the exemption does not last for more than one year, and (3) the party seeking the exemption makes a good faith effort to develop a substitute chemical. Therefore, the court held that EPA’s rule allowing parties to “continue importing [PCBs] indefinitely without interruption”[7] was contrary to Congress’s clear intent, as expressed in the unambiguous language of the statute. Not only was the one year limit of the exception clearly disregarded, but the rule also impermissibly obviated the requirements that the administrator find that “an unreasonable risk of injury to health or environment would not result” and that the applicant made a good faith effort to develop a substitute chemical. Therefore, despite EPA’s argument that it would be better able to protect the public from PCB contamination if it were allowed to import foreign PCB contaminants into the country, the court overturned the rule based on the first prong of the Chevron test.[8]

[1]15 U.S.C. §§ 2601-2618 (1994 & Supp. 1996).

[2]Fed. R. App. P. 15(c).

[3]Sierra Club v. United States EPA, 118 F.3d 1324, 1326 (9th Cir. 1997).

[4]Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Under the two-step analytical approach adopted in Chevron, the first step is to determine whether Congress has directly spoken to the precise question at issue. Id. at 842. The court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. Id. at 842-43. However, if the statute is silent or ambiguous with respect to the specific issue, the analysis moves to step two of the analysis, and the question for the court is whether the agency’s interpretation is based on a permissible construction of the statute. Id. at 843.

[5]Disposal of Polychlorinated Biphenyls; Import for Disposal, 61 Fed. Reg. 11,096 (Mar. 18, 1996) (now codified at 40 C.F.R. § 761.93).

[6]Id. at 11,101.


[8]Chevron, 467 U.S. at 842-43.

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