Federal Toxics Controls: The Patchwork Attack on PCB's

Introduction: Problematic PCB's

PCB's (polychlorinated biphenyls) have made a comeback. First brought to international attention in the late 1960's by outbreaks of "Yusho disease"¹ in Japan and by discovery of trace concentrations in United States' fish, wildlife, food, food packaging, and human tissue,² these synthetic industrial-electrical compounds were thought to have been brought under domestic control in 1972. At that time, Monsanto Corporation, the sole United States manufacturer, voluntarily restricted sales to "closed" uses such as electrical transformers and capacitors.

As if to underscore their remarkable persistence in the environment, and to demonstrate their propensity for biomagnification in the food chain, PCB's have once again begun to appear in dangerous concentrations in fish in major American waterways, including the Great Lakes and the Hudson, Ohio, Mississippi, Missouri, Columbia, Sacramento, Rio Grande, and Yukon Rivers.³ This persistence, due to a remarkable chemical and physical stability, not only accounts for the ubiquity of PCB's, but also explains their usefulness in electrical and heat-transfer applications, where they are prized for their nonflammability and constant dielectric properties. Most important, the longevity of PCB's serves to highlight the shortcomings of current federal government approaches to regulating toxic substances.

EPA Regulatory Bases

The limits of federal toxic control authority were recently acknowledged, indeed stressed, by the Administrator of the Environmental Protection Agency, when in December 1975 he announced a new EPA thrust to try to bring PCE's under control.⁴ The primary basis for [6 ELR 10057] this effort is the Federal Water Pollution Control Act Amendments (FWPCA) of 1972.⁵ Since the FWPCA mainly regulates point-source discharges, it cannot reach those PCB discharges which occur on land, and then move into waterways by nonpoint routes such as runoff and leaching. The EPA estimates that about 400 million pounds of the total of 700 million pounds of PCB's produced since 1929 have found their way into the environment. About half of this total is thought to have been deposited on land, either in landfills where PCB-containing electronic or automotive products are disposed of, or as a result of accidental spills (e.g., in December 1975, a truck accident in Wyoming caused an on-land spill totaling 1,200 tons of PCB's), or through leaks and evaporation from transformers. In all, EPA estimates, about 10 million pounds of PCB's enter the environment each year through vaporization, leaks and spills.⁶

Another limitation is that the FWPCA adopts a cumbersome end-of-the-line approach to regulation. It attempts only to control amounts of waste discharged as effluents, not to limit sales, importation or distribution of pollutants. Likewise, the FWPCA contains no authority for testing chemicals before they are introduced into the environment. As a result of these weaknesses, persistent damaging substances may become widely dispersed long before their dangers are well appreciated. In the case of PCB's, manufacture began in 1929 but these chemicals' persistence and harmfulness were not discovered until the mid 1960's, and not clearly understood until 1972. By this time, PCB's were so widely dispersed that cleanup is now nearly impossible.⁷

Even in the area of point-source discharges, where current EPA authority under the FWPCA is unquestioned, the record of PCB control is less than adequate. It appears that some permits issued under the National Pollution Discharge Elimination System (NPDES) do not presently impose adequate PCB discharge limits. For example, as late as 1974, two General Electric Company capacitor plants on the upper Hudson River received an NPDES permit authorizing a combined daily average discharge of 30 pounds of PCB's into the river.⁸ In November 1975, the New York Department of Environmental Conservation challenged these discharges as violating applicable state water quality standards.⁹ On February 9, 1976, the hearing officer in the case, Professor Abraham Sofaer of Columbia Law School, ruled that the permit-level discharges did violate state law.¹⁰

PCB's are also subject to regulation under § 307 of the FWPCA,¹¹ which authorizes the EPA to establish special effluent limitations for hazardous water pollutants. Unfortunately, EPA has not yet implemented § 307, perhaps in part because no known sewage treatment process can remove PCB's.

Finally, EPA has just proposed regulations to implement § 311 of the FWPCA,¹² which regulates oil and hazardous substance spills into navigable waters. These include PCB's, but the rules' practical effectiveness in handling PCB spills is open to question, for unlike petroleum, PCB's are colorless liquids heavier than water, so they are both difficult to see in water and sink immediately to the bottom.

Other Federal Authorities

In addition to the EPA, two other federal government agencies' activities touch PCB's. The first is the Army Corps of Engineers (Corps), which is responsible for carrying on or approving dredging of rivers and harbors.¹³ Unfortunately, these Corps activities increase [6 ELR 10058] PCB pollution, for as noted, PCB's in water rapidly sink to the bottom where they become part of the sediment. Dredging stirs them up; moreover, dredge spoil is usually dumped either in landfills, where it causes PCB runoff problems, or at sea, where PCB's contribute to marine pollution.

To date, the Corps has not been particularly sensitive to the ecological hazards of dredging and dumping dredge material contaminated with PCB's. EPA's new thrust against PCB's includes a commitment to "work with" the Corps on this problem. But EPA's own record as regards ocean dumping has also come under attack from environmentalists. A recently-filed lawsuit by the National Wildlife Federation (NWF)¹⁴ charges that EPA, which has responsibility for establishing criteria for ocean dumping under the Marine Protection, Research and Sanctuaries Act,¹⁵ has failed to take adequate precautions against dumping of contaminated spoils. NWF points out that although 89-90 percent of all material dumped in the oceans is dredge spoil, EPA's criteria for spoil are less stringent than for other materials. It would seem, therefore, that in this area at least, EPA has more than adequate power to correct past abuses even without its new campaign.

The other federal agency which now has authority to control PCB's is the Food and Drug Administration (FDA), but its power is restricted to banning foods containing excessive PCB residues. Current FDA tolerances cover fish, meat, milk, eggs, poultry, baby food, food packaging, and animal fees. Recently, the Natural Resources Defense Council (NRDC) petitioned FDA to tighten its standards and, as soon as possible, to ban all PCB's in food.¹⁶

Even if FDA's current tolerances of up to 5 parts per million are sufficient to protect public health, FDA regulation is an impractical way to control PCB pollution. In efficiency terms, destroying contaminated food rather than preventing contamination in the first place is a classic case of using pounds of cure instead of ounces of prevention, or using nine stitches where one should suffice. Destruction of PCB-contaminated food is also inequitable, for it penalizes innocent fishermen for harm caused by factory effluents, transformer leaks, or consumer throwaways.

Conclusion: Front-End Controls Needed

In summary, the PCB saga reveals that the entire patchwork of federal controls over toxic substances is a case of inefficient reactions after harm has occurred. What is needed, especially in this era of growing recognition of the need to achieve austere, effective government, is a system for screening new chemicals prior to manufacture, importation, distribution, sale or use.¹⁷ Not only does such an approach promise to save substantially by avoiding the costs of condemned food, damage to wildlife and humans, and cleanup (assuming cleanup is even feasible), but it may also avert economic dislocations. Again, the example of PCB's is instructive. Because these chemicals initially were freely allowed to enter commerce, American industry grew to be dependent on them. Electrical equipment was designed and built to exploit the qualities of specific PCB's. Now that dangers of PCB's are known, it may be impossible to find substitutes for some uses without rendering obsolete a whole generation of transformers and capacitors. Were the Toxic Substances Control Act law, PCB's would never have entered the commercial world, no product dependence would have occurred, and no jobs and equipment would have been threatened by their elimination.

1. In 1968, PCB's in use as a heat-exchange fluid in a pasteurizer leaked into rice oil destined for home use in Japan. More than one thousand persons who used the oil began to experience skin lesions, headaches, temporary blindness, and skin-darkening, symptoms which have persisted due to accumulation of the chemicals in human fatty tissue. M. Kuratsune, Y. Masuda & J. Nagayama, "Some Recent Findings Concerning Yusho" 1, 16 (Paper delivered at National Conference on Polychlorinated Biphenyls, Nov. 19-21, 1975) (hereafter 1975 Conference). Held in Chicago, the gathering was sponsored by the Environmental Protection Agency in cooperation with the U.S. Department of Agriculture, the Council on Environmental Quality, the Department of Health, Education and Welfare, and the Interior Department. EPA expects to publish the proceedings of the 1975 Conference early in 1976. Interested persons may contact the Office of Toxic Substances, United States Environmental Protection Agency; Washington, D.C. 20460.

2. Intially confused with persistent pesticides in the environment and wildlife, PCB's were first distinguished in 1966. S. Jensen, A New Chemical Hazard, 32 New Scientist 612 (1966). Soon they were discovered in fish, waterfowl, and their predators, where serious chronic as well as acute effects were documented. C. Walker, "Pre-1972 Knowledge of Non-Human Effects of Polychlorinated Biphenyls" (paper delivered at 1975 Conference). Human foodstuffs and food packaging materials were also found to be contaminated, which in 1969 and 1970 led the Food and Drug Administration (FDA) to establish temporary tolerance limits known as "action levels" for PCB's in milk, poultry, fish and eggs. E. Burger, "Polychlorinated Biphenyls: A Case Study," 4-5 (prepared in 1974 as background paper for National Academy of Sciences, Decision Making for Regulating Chemicals in the Environment 1975). In 1972, PCB's were first detected in human fatty tissue. Yobs, Levels of Polychlorinated Biphenyls in Adipose Tissue of the General Population, 1 Environmental Health Perspectives 79 (1972). In succeeding years, the concentrations of PCB's in human tissue have increased. In 1972, 27.3 percent of the samples tested contained as much as 1-2 parts per million PCB's; that fraction increased to 35.4 percent in 1974. F. Kutz & S. Strassman, "Residues of Polychlorinated Biphenyls in the General Population of the United States," 7, Table 2 (paper delivered at 1975 Conference).

3. Remarks of Nathaniel Reed, Assistant Secretary of the Interior for Fish and Wildlife and Parks, delivered at the 1975 Conference Nov. 21, 1975, printed text at 4.

4. Press Conference Monday, Dec. 22, 1975, Washington, D.C. The same day, Stanley W. Legro, Assistant EPA Administrator for Enforcement, sent a memorandum to EPA regional offices ordering an immediate program to survey all PCB manufacturers, formulators, and users, including capacitor and transformer manufacturers. In addition, the regions were ordered to review the National Pollutant Discharge Elimination System (NPDES) permit status of all such facilities and to move them toward zero PCB discharges as expeditiously as possible. Memorandum to Regional Administrators, Regional Enforcement Directors, and Regional Surveillance and Analysis Directors, Identification and Control of Environmental Sources of PCB's (Dec. 22, 1975).

5. 33 U.S.C. §§ 1251-1376, ELR 41101.

6. Train Press Conference, supra n. 4, Background Statement at 5; Walter E. Kopp, EPA Office of Toxic Substances, paper delivered at 1975 Conference.

7. Mr. Train's remakrs at the December press conference stressed the near-impossibility of cleaning up a persistent, widespread environmental contaminant like PCB's, once it is released into the environment:

Unfortunately, there appears to be little we can do to remove PCB's from the environment. We find ourselves in a situation similar to the one we faced with DDT. The environmental contaminant is, practically speaking, beyond our reach through known cleanup techniques and may take many years to degrade to any substantial degree. This means that it may be 10 to 20 years before some of our waters will be suitable commercial fisheries.

Train Press Conference, supra n. 4, Background Statement at 5.

8. General Electric initially applied for a federal permit in 1971, under the Refuse Act, 33 U.S.C. § 407, ELR 41141. After passage of the FWPCA of 1972, it reapplied for an NPDES permit in January 1973; when, a few months later, the State of New York received FWPCA authority to operate its own state permit system (SPDES), General Electric applied again. In its applications, it sought permission to discharge a daily average of about 30 pounds of what it called "chlorinated hydrocarbons," i.e., PCB's. In December 1974, EPA issued to General Electric a final NPDES permit, which authorized the requested amount of "chlorinated hydrocarbon" discharges, but also ordered that General Electric's total daily discharges of "Polychlorinated Biphenyls" be reduced to 3.52 oz. by May 31, 1977. In re General Electric Company, No. 2833 (N.Y. Dept. of Environmental Conservation Interim Opinion Feb. 9, 1976), opinion at 34. (This opinion will be published next month. Meanwhile, interested persons may obtain a copy from ELR, 78 pp. $9.75, ELR Order No. C-1022). In January 1976, EPA modified General Electric's permit to require zero discharge by July 1, 1977. This action was taken pursuant to its new anti-PCB campaign, supra n. 4.

9. In re General Electric Co., ELR Dig. [381], ELR 65299. The Department charges that General Electric's PCB discharges violate water quality standards set forth in §§ 17-0501, 17-0511 of the state's Environmental Conservation Law. These forbid violation of New York's water quality standards, which generally prohibit the discharge of "toxic wastes" or "deleterious substances" in amounts "injurious to fish life," or any action which "impairs the waters for any best usage," in particular, fishing. The Department initially pressed for a zero-discharge level, but on January 29, 1976, New York's Governor Carey subtituted EPA's 3.2 gram original discharge limit. As noted, supra n. 8, EPA's present limit is zero discharge.

10. In re Reneral Electric Co., interim opinion supra n. 8, at 59. The court rejected General Electric's defense that its Refuse Act and NPDES permits immunized it from state law liability. All General Electric's permits, noted the hearing officer, contained general qualifications prohibiting violation of applicable state law. Id. at 42.

11. 33 U.S.C. § 1317(a), ELR 41115.

12. 33 U.S.C. § 1321, ELR 41117-18. The regulations would add a new C.F.R. part, 40 C.F.R. part 116, 30 Fed. Reg. 59960 (Dec. 30, 1975). PCB's are included because of "aquatic animal toxicity," id. at 59969, 59975.

13. The Corps regulates state, municipal and private dredging operations through permits' under § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, ELR 41141. In addition, the Corps itself carries on an extensive dredging program in furtherance of its responsibility for maintaining the navigable status of United States commercial and military waterways. See Lettow, "Marine Pollution," in Environmental Law Institute, Federal Environmental Law 596, 568 (Dolgin & Guilbert eds. 1974). Corps authority for governing discharge of dredged materials in inland waters is found in § 404 of the FWPCA, 33 U.S.C. § 1344, ELR 41124. On the Corps' recent actions to implement this section, see Comment, Corps Issues Interim Rules for Discharges of Dredged and Fill Materials, 5 ELR 10143 (Sept. 1975). The Corps also issues permits, pursuant to EPA-adopted criteria, for dumping in the ocean. See n. 15, infra, and accompanying text.

14. National Wildlife Federation v. Train, No. 75-1927 (D.D.C., filed Nov. 19, 1975). For moving papers, see ELR 65291.

15. 33 U.S.C. §§ 1401-1444, ELR 41821.

16. Citizen Petition to Lower PCB Tolerances in Food (before the Administrator, FDA, filed Nov. 21, 1975). For moving papers, see ELR 65286.

17. The proposed Toxic Substances Control Act, now pending in slightly differing versions in both houses of Congress, would establish some form of pre-screening of new chemicals. The major House bill, H.R. 10318, is currently before the full House Interstate and Foreign Commerce Committee, following a favorable report from subcommittee. The Committee will begin markup after it completes work on amendments to the Clean Air Act, sometime around mid-March. On February 17, 1976, the Senate Commerce Committee voted to report out S. 776, a somewhat modified version of the House bill. The original version of S. 776 was introduced by Sen. Tunney (D.Cal.).