598 F.2d 62 (D.C. Cir. 1978), 77-1091, Environmental Defense Fund v. E.P.A.

Docket Nº:77-1091, 77-1317 and 77-1462.
Citation:598 F.2d 62
Party Name:Envtl. ENVIRONMENTAL DEFENSE FUND, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. The ELECTRONIC INDUSTRIES ASSOCIATION'S AD HOC PCB COMMITTEE and Westinghouse Electric Corp., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. BASS ANGLERS SPORTSMAN SOCIETY OF AMERICA, Petitioner, v. Douglas M. COSTLE, Administrator, United S
Case Date:November 03, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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598 F.2d 62 (D.C. Cir. 1978)

Envtl.

ENVIRONMENTAL DEFENSE FUND, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

The ELECTRONIC INDUSTRIES ASSOCIATION'S AD HOC PCB COMMITTEE

and Westinghouse Electric Corp., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

BASS ANGLERS SPORTSMAN SOCIETY OF AMERICA, Petitioner,

v.

Douglas M. COSTLE, Administrator, United States

Environmental Protection Agency, Respondent.

Nos. 77-1091, 77-1317 and 77-1462.

United States Court of Appeals, District of Columbia Circuit

November 3, 1978

Argued March 24, 1978.

Rehearing Denied Dec. 14, 1978.

Rehearing Denied in No. 77-1462 Dec. 14, 1978.

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Jacqueline M. Warren, Washington, D. C., with whom John F. Hellegers and William A. Butler, Washington, D. C., were on the brief, for petitioner in No. 77-1091.

Peter J. Nickles, Washington, D. C., with whom Steven S. Rosenthal, John Michael Clear, and Roger E. Wills, Jr., were on the brief, for petitioners in No. 77-1317.

Andrew Robert Greene, Atlanta, Ga., with whom Henry Angel, Atlanta, Ga., was on the brief, for petitioner in No. 77-1462.

Lorraine Chang, Atty., Environmental Protection Agency, Washington, D. C., with whom Ridgway M. Hall, Jr., Associate Gen. Counsel, Environmental Protection Agency, James W. Moorman, Acting Asst. Atty. Gen., and Douglas K. Miller, Atty., Dept. of Justice, Washington, D. C., were on the brief, for respondents. Peter R. Taft and William L. Want, Attys., Dept. of Justice, Washington, D. C., also entered appearances for respondents.

Before TAMM and ROBINSON, Circuit Judges, and CHARLES R. RICHEY, [*] United States District Judge for the District of Columbia.

Opinion for the court filed by TAMM, Circuit Judge.

TABLE OF CONTENTS Page I. FACTS AND PRIOR PROCEEDINGS. -------------------------------- 65 A. Factual Background on PCBs. ------------------------------ 65 B. PCBs Proceedings. ---------------------------------------- 68 II. STATUTORY FRAMEWORK. ---------------------------------------- 71 III. PROCEDURAL CHALLENGES. -------------------------------------- 74 IV. INTERACTION WITH TOXIC SUBSTANCES CONTROL ACT. -------------------------------------------------------- 76 V. EVIDENTIARY BASIS FOR REGULATION OF LESS CHLORINATED PCBs. ------------------------------------------- 78 A. Arguments of the Parties. ------------------------------- 78 B. Applicable Legal Standards. ----------------------------- 79 C. Scope of Review. ---------------------------------------- 82 D. Adequacy of the Basis for EPA Regulations. -------------- 83 1. EPA's policy judgments concerning extrapolation. ---- 83 2. EPA's factual determination of the particular risks here. ----------------------------------------------- 85 a. Toxicity ---------------------------------------- 85 i. Aquatic organisms ------------------------- 86 ii. Man --------------------------------------- 86 iii. Carcinogenicity --------------------------- 87 b. Persistence ------------------------------------- 89 c. Degradability ----------------------------------- 89 3. Conclusion. ----------------------------------------- 90 VI. PETITIONS BY EDF AND BASS. ---------------------------------- 90 A. Petition by EDF. ---------------------------------------- 90 B. Petition by Bass. --------------------------------------- 91 VII. CONCLUSION. ------------------------------------------------- 91 Page 65

TAMM, Circuit Judge:

We are called upon in these consolidated cases to review challenges to the Environmental Protection Agency's (EPA) first regulations prohibiting discharge into the nation's waterways of a toxic substance, polychlorinated biphenyls (PCBs), under the Federal Water Pollution Control Act Amendments. 1 For the reasons that follow, we uphold the EPA's regulations.

This section was amended by section 53 of the Clean Water Act of 1977, 33 U.S.C.A. § 1317(a) (1977); See text at ---- - ----, ---- - ---- of --- U.S.App.D.C., at 71, 73-74 of 598 F.2d Infra. See also Hercules, Inc. v. EPA, (D.C.Cir. 1978), --- U.S.App.D.C. --- at --- - ---, 598 F.2d 91 at 100-102; Federal Water Pollution Control Act Amendments of 1972 (1972 Act or the Act), 33 U.S.C. §§ 1251-1376 (1976).

I. FACTS AND PRIOR PROCEEDINGS.

  1. Factual Background on PCBs.

    PCBs are a group of related chlorinated hydrocarbon chemicals useful in several industrial processes and toxic to a wide variety of organisms, including man. The chemistry of PCBs figures prominently in this case and will be discussed below. At this point, we need note only that PCBs fall into two chemical categories: PCBs with a low

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    chlorine content (less chlorinated PCBs) and PCBs with a high chlorine content (more chlorinated PCBs). More chlorinated PCBs have been manufactured and used since 1929. For decades, they served in a variety of industrial uses such as ink solvents, plasticizers, adhesives, and textile coatings, 2 but their principal use was and is in electrical equipment. PCBs are nonflammable liquids that are highly resistant to electrical current. Therefore, they have been widely used to fill electrical devices such as capacitors and transformers, aiding in the storage of electrical charge without creating the fire hazard that would occur if a flammable filler were used.

    Awareness of the danger from PCBs to the environment and to man was slow to develop. Although large quantities of PCBs were manufactured and leaked into the environment, the PCBs detected in the environment were long mistaken for pesticide residues, which they resemble chemically. It was not until the mid-1960's that the presence of PCBs in the environment and the harm they inflict were recognized and distinguished from the pesticide problem. 3 As we shall discuss below, it became apparent from scientific studies that more chlorinated PCBs built up to dangerous levels in the sediments of waterways, in the water, in fish, and ultimately in humans, creating a serious risk of death for aquatic organisms and disease (particularly cancer) for man.

    In 1971-72, in response to public and government pressure, PCBs manufacturers and users took initial steps to reduce the PCBs danger. 4 Manufacture was shifted from the more chlorinated PCBs to the less chlorinated PCBs, because it was hoped that less chlorinated PCBs were less dangerous. PCBs use was limited to closed electrical equipment, where the need was greatest and the leakage was least. Some effort was made to control discharge of PCBs into waterways.

    However, in 1972-74 manufacturers were curtailing their efforts to find acceptable substitutes for PCBs, 5 and manufacture of less chlorinated PCBs continued at high volumes, E. g., forty million pounds in 1974. 42 Fed.Reg. 6533 (1977). EPA's initial effort to control discharge of PCBs into waterways, the precursor of the proceeding now on review, ended in failure in 1973-74. 6 Discharges of PCBs into the nation's waterways continued.

    Developments in the early and mid-1970's heightened the public concern about PCBs and resulted in new regulatory efforts in late 1975 and early 1976. Monitoring of residues in fish revealed that industrial discharges of PCBs were rendering fish in many waterways unhealthy for human consumption. 7 This monitoring culminated in

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    a state proceeding, General Electric Co., 6 Envir.L.Rep. (Envir.Law Inst.) 30007 (1976), in which New York's Department of Environmental Conservation found that discharges of PCBs by General Electric, a major manufacturer of electrical equipment containing PCBs, had rendered most upper Hudson River fish dangerous to eat. Id. at 30017-18. Similar situations threatened the fishing industry in the Great Lakes and elsewhere.

    While the General Electric case was pending, a national conference on PCBs hazards was held in November 1975 that resulted in greater awareness of the nationwide threat posed by PCBs and contributed to the renewed EPA effort to regulate and control PCBs discharges. 8 The EPA regulations now on review are the culmination of that effort.

    Following the 1975 renewal of EPA's regulatory effort, further information accumulated with respect to the health hazards posed by PCBs. Moreover, substitutes for PCBs were developed in this country and in Japan that would serve adequately in electrical equipment without creating a fire hazard. 9 Congress became impatient and wrote a special provision devoted solely to PCBs into the Toxic Substances Control Act of 1976, 15 U.S.C. §§ 2601-2629 (1976). See section 6(e), 15 U.S.C. § 2605(e) (1976). Considering that there are few statutes aimed so particularly at control of an individual chemical, we construe this provision as a significant comment on the failure of existing regulatory mechanisms. 10 Failure of existing regulatory mechanisms to control PCBs contributed materially both to passage of the preventive sections of the Toxic Substances Control Act and to strengthening, in 1977, of the toxics provision of Federal Water Pollution Control Act Amendments of 1972. See 33 U.S.C.A. § 1317(a) (1977). 11

    Further, the failures in initial efforts at controlling PCBs were a major factor in new administrative initiatives. During the late 1960's and early 1970's, the Food and Drug Administration, 12 the Occupational

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    Safety and Health Administration, 13 and EPA had made independent efforts...

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