Gulf South Insulation v. U.S. Consumer Product Safety Com'n, Nos. 82-4218

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, THORNBERRY and POLITZ; CLARK
Citation701 F.2d 1137
Parties13 Envtl. L. Rep. 20,850 GULF SOUTH INSULATION, et al., Petitioners, v. UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, Respondent. C.P. CHEMICAL COMPANY, INC., et al., Petitioners, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent. PUBLIC CITIZEN, Petitioner, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent. The FORMALDEHYDE INSTITUTE, INC., for and on behalf of its members, Virgil E. Stewart, Jr. and William E. Nash, Petitioner, v. UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
Docket Number82-4311 and 82-4135,Nos. 82-4218,82-4136
Decision Date07 April 1983

Page 1137

701 F.2d 1137
13 Envtl. L. Rep. 20,850
GULF SOUTH INSULATION, et al., Petitioners,
v.
UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
C.P. CHEMICAL COMPANY, INC., et al., Petitioners,
v.
CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
PUBLIC CITIZEN, Petitioner,
v.
CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
The FORMALDEHYDE INSTITUTE, INC., for and on behalf of its
members, Virgil E. Stewart, Jr. and William E.
Nash, Petitioner,
v.
UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
Nos. 82-4218, 82-4136, 82-4311 and 82-4135.
United States Court of Appeals,
Fifth Circuit.
April 7, 1983.
As Corrected on Denial of Rehearing June 23, 1983.

Page 1139

Malcolm W. Monroe, New Orleans, La., Robert C. Barnard, Sara D. Schotland and Donald L. Morgan, Cleary, Gottlieb, Steen, & Hamilton, Washington, D.C., for petitioners Formaldehyde Institute, Inc. in No. 82-4135.

Nicholas E. Calio, Washington, D.C., for amicus curiae Washington Legal Foundation.

Malcolm W. Monroe, New Orleans, La., Robert C. Barnard, Sara D. Schotland and Donald L. Morgan, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., for amicus curiae Formaldehyde Institute, Inc. in No. 82-4311.

Jeffrey O. Cerar and Karen G. Meister, Squire, Sanders & Dempsey, Washington, D.C., for American Council on Science and Health.

Hurley & Hoffmann, Anita M. Warner, Paul E. Hurley, New Orleans, La., Casey, Scott & Canfield, Edward F. Canfield, Washington, D.C., for petitioners in No. 82-4218.

Michael S. Marcus and Glenn M. Engelmann, Washington, D.C., William A. Porteous, III, New Orleans, La., for petitioners in No. 82-4136.

David C. Vladeck and Alan B. Morrison, Washington, D.C., for petitioners in No. 82-4311.

Barry Grossman and Andrea Limmer, Antitrust Div., Dept. of Justice, Washington, D.C., for respondent in all cases.

David A. Swankin, Washington, D.C., for amicus curiae Nat. Consumers League.

Petitions for Review of an Order of the Consumer Product Safety Commission.

Before CLARK, Chief Judge, THORNBERRY and POLITZ, Circuit Judges.

CLARK, Chief Judge:

On April 2, 1982, the Consumer Product Safety Commission (Commission) concluded a six-year investigation and rulemaking with the issuance of a final rule banning urea-formaldehyde foam insulation (UFFI) in residences and schools. Ban of Urea-Formaldehyde Foam Insulation, 47 Fed.Reg. 14,366 (1982) (to be codified at 16 C.F.R. pt. 1306). The Commission found that UFFI presents an unreasonable risk of injury from irritation and cancer and that no feasible product standard exists that would adequately protect the public from these hazards. 1

Petitions seeking review of the rule were filed in this court and in the United States Court of Appeals for the District of Columbia Circuit. In an opinion dated July 2, 1982, this court was determined to be the proper venue. Consolidation here of all petitions for review was ordered. Formaldehyde Institute, Inc. v. CPSC, 681 F.2d 255 (5th Cir.1982).

In all, four petitioners take exception to the UFFI ban. In Nos. 82-4135 and 82-4218, the Formaldehyde Institute and Gulf South Insulation (together "the industry") challenge the ban generally. In No. 82-4136, C.P. Chemical Company argues that its product, Tripolymer 105, is safer than typical UFFIs and should have been exempted from the ban. Only Public Citizen, in No. 82-4311, complains that the ban was too narrow. It contends that the prohibition of UFFI should have extended to all structures, not just residences and schools, 2

Page 1140

and that the Commission exceeded its statutory authority in incorporating an exemption feature into the rule.

The record developed before the agency does not contain the substantial evidence necessary to support the Commission's ban. Accordingly, we grant the industry's petitions for review and vacate the Commission's rule. Because of this decision, we do not address the issues raised by C.P. Chemical and Public Citizen.

I. THE PRODUCT

UFFI is a thermal insulation material used in residences and other buildings. It is manufactured at the job site by mixing a liquid resin containing formaldehyde, a foaming agent, and compressed gas. The resulting liquid foam, which resembles shaving cream, is pumped into the walls of the building being insulated. After a time the mixture solidifies.

According to the industry, UFFI exhibits several characteristics that make it a particularly attractive insulation alternative. Although relatively inexpensive, it has excellent thermal resistance and energy conservation properties. Unlike some other insulation materials, it is resistant to fire. 3 Perhaps most important, UFFI is well suited for installations in existing structures, termed by the industry the "retrofit" market.

The attribute of UFFI that spawned this rulemaking is its propensity to emit formaldehyde gas. Formaldehyde is a colorless gas composed of carbon, hydrogen, and oxygen. 4 It is present in every cell in the human body and in the atmosphere. Formaldehyde has been in widespread commercial use for almost a century. Seven billion pounds per year are produced in the United States. According to the industry, formaldehyde is a component of products aggregating 8% of this country's Gross National Product. Approximately half of the formaldehyde produced in the United States is used in preparing bonding resins. These resins are used in producing plywood, particleboard, fiberboard and permanent press products, in addition to UFFI. Such products as shampoo, toothpaste, cosmetics, and paper towels also contain formaldehyde.

II. THE RULEMAKING

The Commission's involvement with UFFI began in October 1976 when the Metropolitan Denver District Attorney's Consumer Office filed a petition under 15 U.S.C. Sec. 2059 requesting development of a safety standard for certain home insulation products, including UFFI. 5 After reviewing the available literature on the health problems linked to formaldehyde exposure, the Commission on March 5, 1979, instructed its staff to gather additional information about UFFI. 44 Fed.Reg. 12,080 (1979).

A. Formaldehyde Levels

The Commission's initial step was to determine the average levels of formaldehyde in UFFI homes and non-UFFI homes. The agency obtained results of formaldehyde measurements in 1,164 UFFI homes. The tests showed that formaldehyde levels are highest for several months after installation. They then decrease gradually over a several-year period, eventually approaching ambient levels. The Commission determined that the average level of formaldehyde over a nine-year period after installation of UFFI is .08 parts per million. In

Page 1141

tests of 103 non-UFFI homes, an average level of .03 ppm was found.

To obtain more data, the Commission arranged tests on a number of commercially available UFFI products in simulated wall panels. The tests were conducted by the Franklin Institute Research Laboratory (Franklin Lab), the Oak Ridge National Laboratory (Oak Ridge Lab), and the Commission Engineering Laboratory. The Oak Ridge Lab concluded that the panels emitted formaldehyde at levels ranging from .03-.44 ppm sixteen months after foaming. The average level was .13 ppm.

B. Acute Irritant Effects

The Commission's primary concern when it began investigating UFFI was the link between formaldehyde exposure and acute irritant symptoms. According to the agency, these symptoms include eye, nose, and throat irritation, persistent cough, respiratory distress, skin irritation, nausea, headaches, and dizziness.

From 1979 to 1981 the Commission investigated 350 homes whose occupants had complained of adverse health effects related to UFFI. The agency obtained information about the particular UFFI product installed, the method of installation, the surrounding environment, and the symptoms suffered by household members. According to the Commission, numerous families were forced to evacuate their homes after installation of UFFI, and in several cases acute symptoms were so severe that hospitalization was required. The agency concluded that "taken as a whole, the complaints do identify a real problem." 47 Fed.Reg. at 14,382.

The agency commissioned the National Academy of Sciences to determine whether there is a level of formaldehyde exposure below which no acute symptoms will be experienced. After reviewing the available scientific literature, the Committee on Toxicology, a group of experts empaneled by the academy, concluded that there is no threshold for the irritant effects of formaldehyde. According to the committee, even at concentrations of formaldehyde below .25 ppm somewhat less than 20% of the population may experience some degree of irritation.

Based on this finding and its own complaint data, the Commission reached the conclusion that formaldehyde emitted from UFFI poses an unreasonable risk of acute irritant effects.

C. Carcinogenicity

While the investigation of acute effects was ongoing, the industry apprised the Commission of the preliminary results of a Chemical Industry Institute for Toxicology (Chemical Institute) study linking formaldehyde exposure at high levels to nasal cancer in rats. The agency subsequently established the Federal Panel on Formaldehyde, a group of sixteen scientists from various government agencies, to evaluate the Chemical Institute findings. The panel concluded that the Chemical Institute study was valid and that formaldehyde should be presumed to pose a carcinogenic risk to humans.

The Commission's next step was to extrapolate from the high exposure rat data in order to quantify the risk of cancer to humans at the low levels of formaldehyde exposure associated with UFFI. To perform this task, the agency selected a computerized mathematical risk assessment model called Global 79. Global 79 was chosen over a number of other predictive models because it incorporated several assumptions the Commission believed were applicable to formaldehyde carcinogenesis. Unlike some...

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17 practice notes
  • C.P. Chemical Co., Inc. v. U.S., No. 313
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 26, 1987
    ...foam insulation, 47 Fed.Reg. 57,488 (1982). The Fifth Circuit ruled, in Gulf South Insulation v. U.S. Consumer Product Safety Commission, 701 F.2d 1137, 1148-50 (5th Cir.1983), that the ban was improper because it was promulgated under the procedures of the CPSA, 15 U.S.C. §§ 2057, 2058, 20......
  • Zen Magnets, LLC v. Consumer Prod. Safety Comm'n, No. 14-9610
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 22, 2016
    ...mere “possibility” provide the Court no assistance in assessing that conclusion. See Gulf S. Insulation v. Consumer Prod. Safety Comm'n, 701 F.2d 1137, 1148 (5th Cir. 1983) (finding the Commission failed to show an unreasonable risk of injury because the equivocal predictions that the incre......
  • Chemical Mfrs. Ass'n v. U.S. E.P.A., No. 86-1718
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 21, 1988
    ...require Agency to set a zero limit on emissions for which no safe exposure threshold has been discovered); Gulf South Insulation v. CPSC, 701 F.2d 1137, 1148 (5th Cir.1983) (rule banning a particular type of insulation; statute held to require agency "to quantify the risk at the exposure le......
  • Public Citizen Health Research Group v. Tyson, Nos. 84-1252
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 25, 1986
    ...evidence for an inference that EtO exposure causes chromosomal aberrations, see, e.g., Gulf South Insulation v. United States CPSC, 701 F.2d 1137, 1146 (5th Cir.1983) (single study rejected in face of significant contrary evidence), the combination of experimental and epidemiological eviden......
  • Request a trial to view additional results
15 cases
  • C.P. Chemical Co., Inc. v. U.S., No. 313
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 26, 1987
    ...foam insulation, 47 Fed.Reg. 57,488 (1982). The Fifth Circuit ruled, in Gulf South Insulation v. U.S. Consumer Product Safety Commission, 701 F.2d 1137, 1148-50 (5th Cir.1983), that the ban was improper because it was promulgated under the procedures of the CPSA, 15 U.S.C. §§ 2057, 2058, 20......
  • Zen Magnets, LLC v. Consumer Prod. Safety Comm'n, No. 14-9610
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 22, 2016
    ...mere “possibility” provide the Court no assistance in assessing that conclusion. See Gulf S. Insulation v. Consumer Prod. Safety Comm'n, 701 F.2d 1137, 1148 (5th Cir. 1983) (finding the Commission failed to show an unreasonable risk of injury because the equivocal predictions that the incre......
  • Chemical Mfrs. Ass'n v. U.S. E.P.A., No. 86-1718
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 21, 1988
    ...require Agency to set a zero limit on emissions for which no safe exposure threshold has been discovered); Gulf South Insulation v. CPSC, 701 F.2d 1137, 1148 (5th Cir.1983) (rule banning a particular type of insulation; statute held to require agency "to quantify the risk at the exposure le......
  • Public Citizen Health Research Group v. Tyson, Nos. 84-1252
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 25, 1986
    ...evidence for an inference that EtO exposure causes chromosomal aberrations, see, e.g., Gulf South Insulation v. United States CPSC, 701 F.2d 1137, 1146 (5th Cir.1983) (single study rejected in face of significant contrary evidence), the combination of experimental and epidemiological eviden......
  • Request a trial to view additional results

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