Environmental Defense Fund v. EPA
Citation: 8 ELR 20765
No. Nos. 77-1091 et al., 598 F.2d 62/12 ERC 1353/(D.C. Cir., 11/03/1978)
The court dismisses petitions filed by representatives of the electrical manufacturing industry, an environmental organization, and a fishermen's society challenging defendant's regulations limiting discharges of polychlorinated biphenyls (PCBs) into waterways. The regulations are not procedurally invalid despite the fact that an attorney in the defendant's Office of the General Counsel assisted the judicial officer presiding over the rule-making hearing. Absent evidence of improper influence, the Administrative Procedure Act does not prohibit such "ex parte" contact in the context of rule making. The court also rejects the industrial petitioners' assertion that the regulations are invalid because the Toxic Substances Control Act operates to preempt the Agency's authority under the Federal Water Pollution Control Act (FWPCA), under which these regulations were issued, to require immediate, rather than gradual, elimination of PCBs from discharges. With regard to the merits, the court rejects industrial petitioners' claim that the regulations lack an adequate basis in the record showing the need to regulate less chlorinated PCBs as strictly as highly chlorinated PCBs. Given the considerable degree of scientific uncertainty as to the relative dangers between these categories, the court defers to the Agency's expertise in this area and declines to find that strict regulation of less chlorinated PCBs is not supported by substantial evidence. Strict limitation in the face of uncertainty is mandated by § 307 of the FWPCA, which directs the defendant Administrator to establish effluent standards which provide an ample margin of safety and therefore protect against as yet unknown dangers. The evidence gathered by the Agency is such that a reasonable mind might find that it supports the Agency's conclusions, and the substantial evidence requirement is thus satisfied. Petitioner Environmental Defense Fund's claim that the regulations illegally fail to regulate a certain source of PCB discharges is dismissed; essentially it is a petition for a separate rule making and is hence not properly before this court. A separate petition challenging the Agency's analytical methods is dismissed because the petitioner did not participate in the administrative proceeding at issue.
Counsel for Petitioner Environmental Defense Fund
Jacqueline M. Warren, John F. Hellegers, William A. Butler
1525 18th St. NW, Washington DC 20036
Counsel for Petitioner Electronic Industries Ass'n
Peter J. Nickles, Steven S. Rosenthal, John Michael Clear, Roger E. Wills, Jr.
Covington & Burling
888 16th St. NW, Washington DC 20006
Counsel for Petitioner Bass Anglers Sportsman Soc'y of America
Andrew Robert Greene, Henry Angel
Saveell, Williams, Cox & Angel
2222 The Equitable Bldg., 100 Peachtree St., Atlanta GA 30303
Counsel for Respondent
Lorraine Chang, Ridgway M. Hall, Jr.
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
James W. Moorman, Ass't Attorney General; Douglas K. Miller, Peter R. Taft, William L. Want
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Before TAMM and ROBINSON, Circuit Judges, and CHARLES R. RICHEY,* United States District Judge for the District of Columbia.