Hercules Inc. v. Environmental Protection Agency
598 F.2d 91, 194 U.S. App. D.C. 172, 12 ERC 1376 (1978)
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Rule of Law:
Under Section 307(a) of the Federal Water Pollution Control Act, the EPA may establish nationally uniform, health-based effluent standards for toxic pollutants using a categorical approach based on laboratory data without considering economic or technological feasibility, and agency decisionmakers may consult with internal staff to understand the record in such formal rulemakings.
Facts:
- Velsicol Chemical Corp. (Velsicol) was the sole domestic manufacturer of endrin, a chlorinated hydrocarbon pesticide, at its plant in Memphis, Tennessee, with discharges reaching the Mississippi River.
- Evidence had linked endrin to fish and wildlife kills, including a massive fish kill on the Mississippi River in 1963 traced to Velsicol's plant, and studies suggested it was a carcinogen in rats.
- Hercules, Inc. (Hercules) manufactured toxaphene, another chlorinated hydrocarbon pesticide, at its plant in Brunswick, Georgia, with discharges flowing into the Brunswick Estuary.
- Toxaphene was known to cause fish kills, identifiable by a characteristic “broken back” syndrome, and was linked to massive bird kills; a related pesticide was identified as a carcinogen in mice.
- In setting the toxaphene standard, the EPA conducted laboratory bioassays on six marine species and used data from the most sensitive species tested (pinfish) to calculate the national ambient water criterion.
- Hercules challenged the EPA's methodology, presenting a field study of the Brunswick Estuary which suggested that local aquatic life could tolerate toxaphene levels hundreds of times higher than the EPA's proposed standard.
Procedural Posture:
- The Environmental Protection Agency (EPA) initiated a formal rulemaking proceeding to establish effluent standards for the toxic pollutants endrin and toxaphene.
- EPA published proposed standards in June 1976 and held a formal evidentiary hearing before an administrative law judge (ALJ) from July to October 1976.
- Parties including the EPA, Velsicol Chemical Corp., Hercules, Inc., and the Environmental Defense Fund (EDF) presented testimony and evidence.
- The ALJ compiled the hearing record and transmitted it to the EPA Administrator for a final decision without issuing a recommendation.
- In January 1977, the Administrator issued a final decision adopting the toxic pollutant standards, omitting a tentative decision due to statutory and judicial deadlines.
- Hercules, the petitioner, sought review of the toxaphene regulations in the U.S. Court of Appeals for the Fourth Circuit.
- Velsicol, the petitioner, sought review of the endrin regulations in the U.S. Court of Appeals for the Sixth Circuit.
- The petitions filed by Hercules and Velsicol were transferred to the U.S. Court of Appeals for the D.C. Circuit and consolidated for review, with the EPA as the respondent.
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Issue:
Does Section 307(a) of the Federal Water Pollution Control Act require the EPA to consider economic and technological feasibility or base its standards on the specific conditions of local receiving waters, rather than on a nationally uniform, categorical basis derived from laboratory toxicity data?
Opinions:
Majority - Tamm
No. The Federal Water Pollution Control Act does not require the EPA to consider economic/technological feasibility or local water conditions when setting health-based toxic pollutant standards; it permits a nationally uniform, categorical approach. First, the court held that the statute's instruction to consider organisms in "any waters," a deliberate change from the draft language of "receiving waters," reflects clear congressional intent to abandon failed, localized water-quality standards in favor of a categorical, national approach for toxic pollutants. This allows the EPA to base its standards on laboratory data from the most sensitive species tested to ensure an "ample margin of safety." Second, the court determined that Section 307(a) does not require the EPA to consider economic and technological feasibility. The statute lists six specific environmental and health-based factors for the EPA to consider, and feasibility is conspicuously absent. Legislative history confirms Congress's intent that toxic pollutants are "much too dangerous to be permitted on merely economic grounds." Finally, the court upheld the agency's procedures, finding that intra-agency contacts between the judicial officer and technical staff were permissible in this formal rulemaking context. The contacts were for the purpose of understanding the complex record, not introducing new evidence, and were necessary to meet strict statutory and judicial deadlines for protecting public health, distinguishing this from impermissible ex parte contacts with outside parties.
Analysis:
This decision solidified the EPA's power to issue stringent, nationwide regulations for toxic water pollutants based purely on health and environmental risks. By rejecting arguments for feasibility considerations and localized standards, the court endorsed a technology-forcing approach, prioritizing public health over the economic burdens on industry. The ruling validated the EPA's categorical, science-based methodology, allowing for more efficient and broadly protective standard-setting than the previous, case-by-case water-quality-based system. Procedurally, it affirmed that in complex formal rulemakings, agency decisionmakers can rely on internal expertise to navigate the record, provided no new evidence is introduced, which is a key clarification for administrative law.
