Consumer Product Safety Commission v. Anaconda Co., s. 78-1054

• Decision Date: 10 April 1979
• Docket Number: Nos. 78-1054,78-1070,s. 78-1054
• Citation: 593 F.2d 1314,193 U.S.App.D.C. 160
• Parties: CONSUMER PRODUCT SAFETY COMMISSION, Appellant, v. The ANACONDA COMPANY, a wholly owned subsidiary of Atlantic Richfield Company et al. CONSUMER PRODUCT SAFETY COMMISSION v. The ANACONDA COMPANY et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1314

593 F.2d 1314

193 U.S.App.D.C. 160

CONSUMER PRODUCT SAFETY COMMISSION, Appellant, v. The ANACONDA COMPANY, a wholly owned subsidiary of Atlantic

Richfield Company et al.

CONSUMER PRODUCT SAFETY COMMISSION v. The ANACONDA COMPANY et al., Appellants.

Nos. 78-1054, 78-1070.

United States Court of Appeals District of Columbia Circuit.

Argued May 5, 1978.

Decided Jan. 31, 1979.

As Amended Feb. 6, 1979.

Rehearing April 10, 1979.

Appeal from the United States District Court for the District of Columbia (D.C. Civil 77-1843).

Nancy L. Buc, New York City, with whom Philip J. Harter, Edmund E. Harvey, Christopher H. Buckley, Jr., Fred F. Fielding, James Skelly Wright, Jr., Christopher Sanger, Eldon H. Crowell, Patrick W. Lee, Washington, D. C., Donald Letizia, Fort Wayne, Ind., Peter Barnes, Steven J. Agresta, Henry P. Sailer, Robert Matthew Sussman, Donald J. Mulvihill, R. Bruce Dickson, James L. Kaler, Sherwood B. Smith, Jr., F. Anthony Maio, Michael D. Fischer, John F. Graybeal, and Michael Hausfeld, Washington, D. C., were on brief for appellants in No. 78-1070, and appellee in No. 78-1054 The Anaconda Co., et al.

William N. Letson, with whom Gearold L. Knowles, Washington, D. C., was on brief, for appellant in No. 78-1070, appellees in No. 78-1054 Coleman Cable and Wire Co.

Ronald J. Greene, Washington, D. C., with whom Edward Tynes Hand, Washington, D. C., was on briefs, for appellee in No. 78-1054 and appellants in No. 78-1070, The Kaiser Aluminum and Chemical Corp., et al.

Norman C. Barnett, Sol., Consumer Product Safety Commission, Washington, D. C., with whom Jerome B. Morris, Atty., Consumer Product Safety Commission, Washington, D. C., was on the brief, for appellees in No. 78-1070 and appellant in No. 78-1054.

Douglas L. Parker and Charles E. Hill, Washington, D. C., were on the brief, for Amicus Curiae in No. 78-1070.

Paul G. Wallach, New York City, entered an appearance for appellant in No. 78-1070, Triangle PWC, Inc.

Also Jonathan Z. Cannon, Washington, D. C., entered an appearance for appellant in No. 78-1070, Bryant Electric Co. etc.

Also Paul M. Vincent, Washington, D. C., entered an appearance for appellant in No. 78-1070, Reynolds Metals Co.

Also Ridgway M. Hall, Jr., Washington, D. C., entered an appearance for appellant in No. 78-1070, Essex Group, Inc.

Also Herbert Cohen, Arlington, Va., entered an appearance for appellant in No. 78-1070 Southwire Co.

Also Alan S. Anderson, Washington, D. C., entered an appearance for appellant in No. 78-1070, Eagle Electric Manufacturing Co., Inc.

Also Robert M. Sussman, Washington, D. C., entered an appearance for appellee in No. 78-1070, General Electric Wiring Device Business Department.

Before BAZELON, LEVENTHAL and ROBB, Circuit Judges.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

LEVENTHAL, Circuit Judge:

Since the mid-1960's many of the central wiring systems that have been installed in residential structures have incorporated aluminum wiring as the primary electrical conductor. ¹ Until the early 1970's, these "aluminum branch circuit wiring systems" borrowed the technology developed for use in similar copper wiring systems with respect to the design and installation of the electrical outlets, switches, and other devices that comprise the finished product. Accumulating evidence that these wiring systems might present a fire hazard prompted the industry to develop new performance standards for aluminum wiring and for the devices used with aluminum conductors. ² Prior to this development, "old technology" aluminum branch circuit wiring systems were installed in at least 1.5 million residences throughout the United States. ³

The Consumer Product Safety Commission ("CPSC" or the "Commission"), an agency established pursuant to the Consumer Product Safety Act of 1972 ("CPSA" or the "Act"), ⁴ has exercised certain of its investigative, rulemaking, and adjudicatory powers in an effort to isolate the causes of, and to alleviate the hazard associated with, old technology aluminum wiring systems. These interlocutory appeals arise from an action filed by CPSC in the United States District Court for the District of Columbia pursuant to CPSA § 12. That section authorizes the Commission, upon discovery that a consumer product "presents imminent and unreasonable risk of death, serious personal illness, or severe personal injury," to seek a declaratory judgment that the product is "an imminently hazardous consumer product," and to obtain such affirmative relief "as may be necessary to protect the public." ⁵ The complaint named as defendants 26 corporations that between 1965 and 1973 manufactured and sold various components of the old technology aluminum wiring systems. ⁶ It sought temporary relief in the form of an order requiring widespread public notice of the hazard, the danger signals to look for, and precautionary measures to take, and sought as well an order requiring the permanent repair of residences wired with old technology aluminum wiring systems. ⁷ Defendants' motion to dismiss for lack of jurisdiction was denied, except in the case of Kaiser Aluminum & Chemical Corporation, which presented a special claim of collateral estoppel. Most of the defendants appear before us as appellants (No. 78-1070). ⁸ Kaiser is before us as appellee (No. 78-1054). For convenience, we shall refer collectively to the "defendants."

Section 12 is applicable only when the allegedly hazardous item is a "consumer product" as that term is defined by the Act. ⁹ In certain respects CPSC enjoys a broad jurisdiction over products that may cause injury to consumers. However, that jurisdiction is circumscribed by the Act's complex definition of "consumer product." Defendants contend that an aluminum branch circuit wiring system is not a "consumer product."

These wiring systems are manufactured from a number of products, some or all of which may qualify as "consumer products" within the applicable definition. But the alleged fire hazard is not caused by a defect in a component part; rather it arises from the improper design or installation of the wiring system as a whole. The Commission's view concerning the nature of the hazard is stated in the Notice of Proceeding for Development of Consumer Product Safety Standard, 40 Fed.Reg. 51218, 51219 (1975):

In many cases, connections within "aluminum wire systems" become defective over a period of time, resulting in overheating or arcing at the point where the wire is connected to other elements of the system. These defects are caused by the presence in the joint of aluminum oxide and by the effects of vibration, creep expansion and contraction, and transient electrical surges.

The Commission notes further that poor workmanship in assembling aluminum wire connections appears to increase the likelihood of defective connections and component failure.

In 1973, shortly after its establishment, the Commission began to investigate various reports that fires resulting in injury and loss of life had been caused by failures in residential aluminum branch circuit wiring systems. In March and April of 1974 CPSC held public hearings on the subject. See 40 Fed.Reg. 51218 (1975). In November, 1975, the Commission instituted a rulemaking proceeding for the development of one or more consumer product safety standards designed to reduce or eliminate the risks associated with aluminum branch circuit wiring systems. Id. Shortly thereafter, it directed the Commission staff to commence proceedings to seek relief for residences that already had the possibly hazardous aluminum wiring systems.

Pursuant to its responsibilities under CPSA § 5, ¹⁰ the Commission disseminated information alerting the public to the potential hazard posed by aluminum wiring systems and suggesting ways to alleviate the danger. In January of 1976, Kaiser Aluminum & Chemical Corporation brought suit in the United States District Court for the District of Delaware to enjoin the Commission from continuing to release allegedly inaccurate information concerning aluminum wiring. In March, District Judge Walter K. Stapleton held that CPSC was without jurisdiction to investigate aluminum wiring and to disseminate information with respect to the product because aluminum wiring was not a "consumer product" within the meaning of the Act. Kaiser Aluminum & Chemical Corp. v. CPSC, 428 F.Supp. 177 (D.Del.1976). This ruling was reversed by the Court of Appeals for the Third Circuit in March, 1978. Kaiser Aluminum & Chemical Corp. v. CPSC, 574 F.2d 178 (3d Cir.), Cert. denied, --- U.S. ----, 99 S.Ct. 218, 58 L.Ed.2d 193 (1978).

In September, 1976, as a part of its ongoing investigation, CPSC issued subpoenas to various manufacturers of aluminum wiring and electrical devices that were used in old technology aluminum branch circuit wiring systems. In due course, it brought an action in the District Court for the District of Columbia to enforce the subpoenas against those companies that had refused to comply. In June, 1977, District Judge Thomas A. Flannery ruled that aluminum wiring systems were "consumer products" within the Act and generally granted enforcement of the subpoenas. However, the court gave collateral estoppel effect to the then extant ruling of the Delaware district court and denied the petition with respect to Kaiser. United States v. Anaconda Co., 445 F.Supp. 486 (D.D.C.1977). ¹¹

In October, 1977, the Commission commenced the present action to obtain a declaration that old technology aluminum branch circuit wiring systems are "imminently hazardous consumer products," and to obtain such affirmative injunctive relief as might be required. In December, 1977, in response to defendants' motion to dismiss on jurisdictional grounds, District Judge Flannery issued an order reaffirming his June ruling that aluminum wiring systems were "consumer products." The memorandum opinion incorporated by reference the prior jurisdictional analysis. Again, the...