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Corrosion Proof Fittings v. EPA

United States Court of Appeals for the Fifth Circuit

November 15, 1991

No. 89-4596

Opinion

 [*1230]  ON MOTION FOR CLARIFICATION

Respondents, the Environmental Protection Agency (EPA) and William K. Reilly, seek a clarification of the status of the phase 1, or stage 1, provisions in the challenged rule, which ] provisions ban, effective August 27, 1990, the manufacture, importation, and processing of asbestos-containing corrugated and flat sheet, asbestos clothing, flooring felt, pipeline wrap, roofing felt, and vinyl/asbestos floor tile, and any new uses of asbestos. See 40 C.F.R. §§ 763.165(a) -. 167(a). The rule also requires labeling of phase 1 products after August 27, 1990, see id. § 763.171(a), and prohibits the distribution in commerce of such products after August 27, 1992, see id. § 763.169(a). See Corrosion Proof Fittings v. EPA, 947 F.2d 1202, slip op. 558, 565 & n. 2 (5th Cir. Oct. 18, 1991).

Respondents assert that the clarification is needed because, in part V.D of our opinion, id. at 590-91, we have held that ] the EPA may "ban products that once were, but no longer are,  [**2]  being produced in the United States." Thus, the motion seeks clarification of the status of any products that still were being manufactured, imported, or processed on July 12, 1989, which is the date on which the final rule was issued, see 54 Fed.Reg. 29,459 (1989), but which no longer were being manufactured, imported, or processed, as a result of the phase 1 ban, on the date of our opinion, which is October 18, 1991.

The motion for clarification is GRANTED. The holding in part V.D of our opinion applies only to products that were not being manufactured, imported, or processed on July 12, 1989, the date of the rule's promulgation. To the extent, if any, that there is doubt as to whether particular products are in that category, the EPA may resolve the factual dispute on remand.

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947 F.2d 1201 *; 1991 U.S. App. LEXIS 26930 **; 22 ELR 20304; 33 ERC (BNA) 1961

CORROSION PROOF FITTINGS, et al., Petitioners, v. THE ENVIRONMENTAL PROTECTION AGENCY and WILLIAM K. REILLY, ADMINISTRATOR, Respondents

Subsequent History: Reported at: 947 F.2d 1201 at 1230. Rehearing Denied November 27, 1991, Reported at: 1991 U.S. App. LEXIS 28418. As Corrected.

Prior History:  [**1]  Original Opinion of October 18, 1991, Reported at: 947 F.2d 1201. On Petition for Review of a Rule of the Environmental Protection Agency; No. 54 Fed. Reg. 29460-513.

CORE TERMS

products, clarification, manufactured, processed, imported, asbestos, phase, ban, provisions, floor

Environmental Law, Hazardous Wastes & Toxic Substances, Asbestos, General Overview, Governments, Legislation, Effect & Operation, Operability