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Ausimont U.S.A. Inc. v. Environmental Protection Agency

filed: February 1, 1988.

AUSIMONT U.S.A. INCORPORATED; E.I. DU PONT DE NEMOURS AND CO., INC.; HEOCHST CELANESE CORPORATION; ICI AMERICAS INCORPORATED; MINNESOTA MINING AND MANUFACTURING CO.; PENNWALT CORPORATION, PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT



On Petition for Renew of a Final Order of the Environmental Protection Agency.

Weis, Higginbotham, and Mansmann, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

The Environmental Protection Agency adopted a rule requiring petitioner manufacturers to conduct extensive testing of certain chemicals, fluoroalkenes, to determine their potential for producing adverse health effects. The manufacturers have petitioned for judicial review, asserting that the rule is contrary to law and should be set aside. An examination of the record persuades us that the agency action is supported by substantial evidence, and accordingly, we deny review.

The Toxic Substances Control Act, 15 U.S.C. §§ 2601-29, authorizes EPA to promulgate rules directing manufacturers to arrange for testing of chemical substances that "may present an unreasonable risk of injury to health." 15 U.S.C. § 2603(a)(1)(A)(1). Petitioners are the manufacturers of four chemicals, collectively known as fluoroalkenes: vinyl fluoride, vinylidene fluoride, hexafluoropropene, and tetrafluoroethene.

Fluoroalkene monomers, precursors in the preparation of specialty fluorocarbon polymers, are incorporated into various end products. Vinyl fluoride (VF) is processed to form a high-strength film used for wall coverings, lighting panels and automobile trim, as well as for laminating aluminum, steel, wood and plastics for industrial buildings. Vinylidene fluoride (VDF) is employed in the manufacture of resins for computer panel boards, tank linings, pumps, valves and pipes. Hexafluoropropene (HFP) is used in the production of fluorinated oils and greases for the electrical and chemical industries. Tetrafluoroethene (TFE) is converted to make resins, elastomers and fluids for electrical insulation, chemical processing equipment and medical devices.

The manufacturing and processing of these fluoroalkenes takes place within closed pipes, reaction vessels and other equipment located behind sealed and barricaded areas of the factory. At room temperature the substances are odorless gases. In the course of converting the monomers into polymers, fluoroalkenes are chemically altered and cease to exist in their original form. Several of the fluoroalkenes are highly flammable. The danger of explosion combined with the economic cost of inefficient production act as incentives to guard against release of the gases into the environment.

Five companies produce one hundred percent of the fluoroalkenes: DuPont, Pennwalt, ICI Americas, Allied and American Hoechst. Currently no commercially available substitutes for these monomers exist. Consequently, the inelastic demand permits manufacturers to pass along price increases and testing costs. The major end-use markets include the automotive, chemical-petrochemical, industrial pollution control, hydraulic-pneumatic, and aerospace industries. Growth rates in these markets are favorable.

The parties disagree on the number of workers who may be affected by contact with the chemicals. In their brief, petitioners assert that only fifty workers are "potentially exposed" to vinyl fluoride and that the number potentially exposed to the other fluoroalkenes is less than five hundred. EPA estimates that "between eleven hundred fifty and two thousand ninety-five workers" may be exposed to these substances during their production and use. This numerical disparity may have been caused partly by recounting workers exposed to more than one of the chemicals, and at oral argument EPA conceded that its estimates may have involved some double counting.

Nearly seven million pounds of vinyl fluoride are transported annually by rail in closed tanks from DuPont's production plant in Louisville, Kentucky to its facilities in Buffalo, New York. Although in the event of derailment these movements carry a possibility of leaks and a threat of chemical escape into the atmosphere, EPA believes that human exposure to these chemicals is unlikely to occur outside the workplace. See 46 Fed. Reg. 53,706 (1981).

Petitioners assert that exposure above two parts per million (2 ppm)*fn1 has occurred only during non-recurring short-term events -- operational upsets, atypical work day exposures, reactor plugging problems, and unusual work practices. Petitioners characterize these incidents as "fugitive emissions." Although some workers wear air-supplied respirators, these devices are not used generally where industry considers engineering controls adequate to prevent emissions. An industrial hygiene study by the Fluoroalkene Industry Group (Industry Group) revealed, however, that in the instances where exposures exceeded 2 ppm, workers were not wearing respirators.

The Toxic Substances Control Act created the Interagency Testing Committee, an entity consisting of eight members from various federal agencies whose work focuses on various concerns associated with toxic substances. Represented are such agencies as EPA, the National Cancer Institute, the National Science Foundation and the National Institute for Occupational Safety and Health. See 15 U.S.C. § 2603(e)(2)(A). The Committee is charged with preparing a list limited to fifty chemicals to which EPA must give first order scrutiny. In establishing such a list, "the committee shall give priority attention to those chemical substances and mixtures which are known to cause or contribute to or which are suspected of causing or contributing to cancer, gene mutations, or birth defects." Id. § 2603(e)(1)(A).

In November 1980 the Committee listed the fluoroalkenes for priority testing. After a number of conferences with industry groups and an aborted "negotiated testing proposal," see Natural Resources Defense Council v. EPA, 595 F. Supp. 1255, 1261 (S.D.N.Y. 1984), EPA issued a notice of proposed rulemaking to require testing. Written and oral comments were submitted. The agency held a public meeting, examined scientific data, and ...


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