Environmental Defense Fund v. E.P.A., Nos. 77-1091

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore TAMM and ROBINSON; Opinion for the court filed by TAMM; TAMM
Citation598 F.2d 62,194 U.S.App.D.C. 143
Decision Date14 December 1978
Docket NumberNos. 77-1091,77-1317 and 77-1462
Parties, 194 U.S.App.D.C. 143, 8 Envtl. L. Rep. 20,765 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.

Page 62

598 F.2d 62
12 ERC 1353, 194 U.S.App.D.C. 143, 8
Envtl. L. Rep. 20,765
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.
Argued March 24, 1978.
Decided Nov. 3, 1978.
Rehearing Denied Dec. 14, 1978.
Rehearing Denied in No. 77-1462 Dec. 14, 1978.

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.

 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

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.

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.

A. 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

Page 66

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 to control PCBs, none of them wholly successful. This lack of success stimulated a new effort at interagency cooperation in toxics regulation, and was a major factor in the development of EPA's large-scale program for regulation of discharges of toxic substances, including PCBs. 14

B. PCBs Proceedings.

We set forth the history of EPA's PCBs proceedings in detail because it bears on both the posture of this appeal and the interpretation of the statutes that Congress passed in 1976 and 1977. In sum, the history of EPA's PCBs...

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43 practice notes
  • Green Mountain Chrysler Plymouth Dodge v. Crombie, No. 2:05-CV-302.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 12, 2007
    ...agency conclusions based on policy judgments" concerning "issues on the frontiers of scientific knowledge," Envtl. Def. Fund v. EPA, 598 F.2d 62, 82 (D.C.Cir.1978), the decision not to regulate was a proper exercise of discretion, according to the opinion. Massachusetts v. EPA, 415 F.3d at ......
  • Consolidation Coal Co. v. Costle, Nos. 76-1690
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 25, 1979
    ...See, e. g., Central Hudson Gas & Electric Corp. v. EPA, 587 F.2d 549, 555-57 (2d Cir. 1978); Environmental Defense Fund v. EPA, 194 U.S.App.D.C. 143, 598 F.2d 62 (Nov. 3, 1978); Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 318-323, 510 F.2d 692, 698-703 (1975); Cf......
  • Natural Resources Defense Council, Inc. v. U.S. E.P.A., No. 85-1150
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 4, 1986
    ...such participation as a prerequisite to petitioning for direct review of the resulting regulations. See Environmental Defense Fund v. EPA, 598 F.2d 62, 91 (D.C. The NRDC did not participate in the rulemaking proceedings in this case, but argues that we should not dismiss its petition for re......
  • Chemical Mfrs. Ass'n v. U.S. E.P.A., No. 87-4849
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 30, 1989
    ...chapter which is not discretionary with the Administrator. 33 U.S.C. Sec. 1365(a)(2) (1972); see also Environmental Defense Fund v. EPA, 598 F.2d 62, 90-91 (D.C.Cir.1978) (jurisdiction over claim that EPA should have engaged in additional rulemaking lies exclusively in district 397 Trustees......
  • Request a trial to view additional results
40 cases
  • Green Mountain Chrysler Plymouth Dodge v. Crombie, No. 2:05-CV-302.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 12, 2007
    ...agency conclusions based on policy judgments" concerning "issues on the frontiers of scientific knowledge," Envtl. Def. Fund v. EPA, 598 F.2d 62, 82 (D.C.Cir.1978), the decision not to regulate was a proper exercise of discretion, according to the opinion. Massachusetts v. EPA, 415 F.3d at ......
  • Consolidation Coal Co. v. Costle, Nos. 76-1690
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 25, 1979
    ...See, e. g., Central Hudson Gas & Electric Corp. v. EPA, 587 F.2d 549, 555-57 (2d Cir. 1978); Environmental Defense Fund v. EPA, 194 U.S.App.D.C. 143, 598 F.2d 62 (Nov. 3, 1978); Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 318-323, 510 F.2d 692, 698-703 (1975); Cf......
  • Natural Resources Defense Council, Inc. v. U.S. E.P.A., No. 85-1150
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 4, 1986
    ...such participation as a prerequisite to petitioning for direct review of the resulting regulations. See Environmental Defense Fund v. EPA, 598 F.2d 62, 91 (D.C. The NRDC did not participate in the rulemaking proceedings in this case, but argues that we should not dismiss its petition for re......
  • Chemical Mfrs. Ass'n v. U.S. E.P.A., No. 87-4849
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 30, 1989
    ...chapter which is not discretionary with the Administrator. 33 U.S.C. Sec. 1365(a)(2) (1972); see also Environmental Defense Fund v. EPA, 598 F.2d 62, 90-91 (D.C.Cir.1978) (jurisdiction over claim that EPA should have engaged in additional rulemaking lies exclusively in district 397 Trustees......
  • Request a trial to view additional results
3 books & journal articles
  • The TMDL Program to Come: Aftershock and Prelude
    • United States
    • The Clean Water Act TMDL Program: Law, Policy, and Implementation
    • August 23, 2002
    ...to 300j-26, ELR Stat. SDWA §§1401-1465). 289. For a view of these difficulties under the CWA, see Environmental Defense Fund v. EPA, 598 F.2d 62, 8 ELR 20765 (D.C. Cir. 1978) (upholding EPA extrapolations of human harm from tests on laboratory mice, stating, “as a practical matter, scientif......
  • The Implementation of §303
    • United States
    • The Clean Water Act TMDL Program: Law, Policy, and Implementation
    • August 23, 2002
    ...Hercules, Inc. v. EPA, 598 F.2d 91, 8 ELR 20811 (D.C. Cir. 1978) (water quality standards); Environmental Defense Fund v. EPA, 598 F.2d 62, 8 ELR 20765 (D.C. Cir. 1978) (polychlorinated biphenyl standards); Ethyl Corp. v. EPA, 541 F.2d 1, 6 ELR 20267 (D.C. Cir. 1976) (lead levels in gasolin......
  • Toward the Final Frontier
    • United States
    • The Clean Water Act TMDL Program: Law, Policy, and Implementation
    • August 23, 2002
    ...see Ethyl Corp. v. U.S. EPA, 541 F.2d 1, 6 ELR 20267 (D.C. Cir. 1976) (lead levels in gasoline); Environmental Defense Fund v. U.S. EPA, 598 F.2d 62, 8 ELR 20765 (D.C. Cir. 1978) (polychlorinated biphenyl standards); Hercules, Inc. v. U.S. EPA, 598 F.2d 91, 8 ELR 20811 (D.C. Cir. 1978) (wat......

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