ELR Citation: ELR 20982
No(s). 93-1807 (D.C. Cir. May 12, 1995)

The court upholds the U.S. Environmental Protection Agency's (EPA) interpretation of Toxic Substances Control Act (TSCA) regulations at 40 C.F.R. §761.60 addressing disposal of dirty polychlorinated biphenyl (PCB) solvent through incineration as requiring immediate incineration of the entire mixture drained from a transformer, but also holds that EPA did not provide a sanctioned company with fair warning of its interpretation. EPA found liable under §761.60 a company that distilled and recycled solvent used to rinse PCB-contaminated transformers before it incinerated the solvent, and fined the company $25,000. The court first holds that EPA reasonably interpreted §761.60 to prohibit preincineration distillation of the solvent, and that its interpretation is permissible. Although the company's interpretation also may be reasonable, in the context of TSCA's comprehensive and technically complex regulatory scheme, the court defers to EPA's reasonable judgment. The court next holds that EPA did not provide the company with fair notice of its interpretation of §761.60, and reverses EPA's finding of liability and the related fine. The interpretation is so far from a reasonable person's understanding of the regulations that the company could not have been fairly informed of EPA's perspective. Neither the regulations on their face nor a 1983 EPA policy statement on PCB separation activities clearly prohibit preincineration distillation. Moreover, the company's interpretation of §761.60 was reasonable. Also, the company did not have the actual notice of EPA's interpretation of the regulations.

Counsel for Petitioner
Andrew J. Pincus
Mayer, Brown & Platt
2000 Pennsylvania Ave. NW, Washington DC 20006
(202) 463-2000

Counsel for Respondent
Robert I. Dodge
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: WALD, SILBERMAN, and TATEL, Circuit Judges.