ELR Citation: ELR 20672
No(s). 00-1394 (D.C. Cir. May 17, 2002)

The court vacates a polychlorinated biphenyl (PCB) risk assessment guidance document issued by the U.S. Environmental Protection Agency (EPA) because the court found it to be a rule improperly published without notice-and-comment procedures. The court first holds that the case is ripe for review. The document purports to bind both applicants and the Agency with the force of law. Further, the document is final agency action because it marks the consummation of EPA's decisionmaking process and determines the rights and obligations of both applicants and EPA. Additionally, nothing would be gained from delaying review. The court next holds that the document is a legislative rule under Toxic Substances Control Act §19(a)(1)(A) and, thus, is subject to the court's review. The document gives substance to the vague language of 40 C.F.R. §761.61(c), does so in an obligatory manner, and is treated by EPA as controlling in the field. Further, the document is binding because it facially requires an applicant for a risk-based variance to calculate toxicity using a certain total toxicity factor. Because the document binds EPA to accept the use of a certain toxicity factor, it follows that the document imposes further obligations on the Agency. And even though the document gives applicants the option of calculating risk in either of two ways, it still requires them to conform to one or the other. Moreover, EPA did not contend that in practice it had not treated the document as binding in the ways described above. Consequently, because EPA issued the document without providing notice-and-comment procedures, the court vacates the document.

Counsel for Petitioner
Angus Macbeth
Sidley & Austin
1722 1 St. NW, Washington DC 20006
(202) 736-8271

Counsel for Respondent
H. Michael Semler
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Ginsburg, J. Before Randolph and Tatel, JJ.