ELR Citation: ELR 20388
No(s). 00-1542 (D.C. Cir. Jan 4, 2002)

The court holds that the U.S. Environmental Protection Agency (EPA) Environmental Appeals Board (EAB) erred in affirming an administrative law judge's (ALJ's) accelerated decision finding a company liable for violating the Toxic Substances Control Act (TSCA). EPA filed suit against the company after unlawful amounts of polychlorinated biphenyls (PCBs) were discovered at the company's facility. Although the company had not used PCBs in over 20 years and argued that the spill fell under TSCA's historic waste exemption, the ALJ granted EPA's motion for an accelerated decision on liability, and the EAB affirmed. The court first holds that the company's evidence, when viewed in the light most favorable to the company as the ALJ and EAB were required to do on accelerated decision, created a genuine issue of material fact whether the company had met its burden of proving its affirmative defense that the spill was historic. Once the company presented evidence that there was no new source of PCBs in excess of 50 parts per million (ppm) because it stopped using PCB-containing oil in 1972, and proffered that there was a "physical/chemical" explanation for the presence of PCBs in excess of 50 ppm in 1993, EPA was not entitled to an accelerated decision on liability in the absence of either evidence that a spill had occurred in 1993 or other evidence sufficient to show that no reasonable fact finder could conclude by a preponderance of the evidence that any spill was historic. Whether the disposal falls under the historic waste exemption will be determined on remand.

Counsel for Petitioner
Steven E. Ferrey, Prof.
School of Law
Suffolk University
120 Tremont St., Boston MA 02108
(617) 573-8148

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

Rogers, J. Before Ginsburg and Garland, JJ.