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UNITED STATES v. COM. EDISON CO.

October 31, 1985

UNITED STATES OF AMERICA
v.
COMMONWEALTH EDISON COMPANY, DEFENDANT.



The opinion of the court was delivered by: Moran, District Judge.

MEMORANDUM AND ORDER

This case for injunctive and declaratory relief concerns Commonwealth Edison's responsibility for cleaning up highly toxic polychlorinated biphenyls (PCBs) spilled from its electrical equipment, often in residential areas.*fn1 Edison, impliedly at least, recognizes a responsibility to clean up spills, with a dispute over the extent of that responsibility. It argues, however, that the extent of its responsibility cannot be determined through the medium of this lawsuit as the issues are presently framed. This court disagrees.

I.

There is much to suggest that PCBs are both toxic and extremely persistent in the environment. See 47 Fed.Reg. 37342, 37344 (Aug. 25, 1982). The most visible effect of PCB exposure on humans is chloracne, a painful and disfiguring skin disorder. Id. Both prenatal and post-natal exposure to PCBs may have adverse effects on human reproduction and development. Id. PCBs can alter the reproductive processes in mammals, even at doses that do not otherwise cause other signs of toxicity. Id. Monkeys fed diets with PCB concentrations of less than ten parts per billion (ppb) have lower fertility rates and a higher incidence of stillbirths and birth defects. See Environmental Defense Fund v. E.P.A., 636 F.2d 1267, 1270 (D.C.Cir. 1970). Other animal studies indicate that PCBs have an oncogenic (tumor-causing) potential. 47 Fed.Reg. at 37344. There is no evidence that this animal data is not predictive of the effects of PCBs on humans. Id.

PCBs also have adverse environmental effects, 47 Fed.Reg. at 37345. PCBs tend to concentrate in the aquatic environment and have a deleterious impact on a wide variety of aquatic life, ranging from phytoplankton to fish. Id. At sublethal levels PCB exposure lowers the reproductive success and survival rate of fish and leads to abnormalities in the development of bones and reproductive organs. Id. PCBs also impair the reproductive success of birds and mammals. Id. Concentrations below 1 ppb can impair the reproductivity of aquatic invertebrates and fish, while birds can suffer severe reproductive failure when fed diets containing only 10 ppb of PCBs. Environmental Defense Fund, 636 F.2d at 1270.

In addition to direct exposure, organisms can encounter harmful levels of PCBs through a process known as bioaccumulation. When a stable chemical is released into the environment bioaccumulation causes the chemical to be found at increased levels in organisms at each step up the food chain. PCBs, for example, are chemically stable and collect in waterways. They are found at relatively low levels in the unicellular phytoplankton at the bottom of the food chain. The PCBs are transferred up the food chain by the small invertebrates that consume the phytoplankton, the organisms that feed on the invertebrates, and so on, up to large fish and the humans who eat fish. The PCB level in organisms tends to increase at each step up the food chain.*fn2 Mammals, including humans, are at the top of the food chain and can thus accumulate relatively high levels of PCBs in their flesh even while avoiding substantial direct exposure. See generally 47 Fed.Reg. at 37345; Environmental Defense Fund, 636 F.2d at 1270.*fn3

Toxic chemicals are often produced for socially beneficial purposes, and PCBs are no exception. Because of their chemical stability, fire resistance and electrical resistance properties, PCBs have been manufactured and used commercially for fifty years. Environmental Defense Fund, 636 F.2d at 1270. As of 1975, up to 400 million pounds of PCBs had entered the environment. Id. Approximately 25 to 30 per cent of this amount, or at least 100 million pounds, is free and circulating in the environment and is a direct source of contamination for wildlife and humans. Id.

Because of their fire resistance, PCBs are used extensively by electric utilities in transformers and capacitors. Transformers are used to transmit and distribute electric power efficiently. 47 Fed.Reg. at 37345. A small percentage of transformers known as PCB transformers are filled with a dielectric fluid containing between 60 and 70 per cent PCBs. Id. PCB transformers are located in secure indoor locations and electrical substations and are not at issue in this case. Id. Other transformers contain mineral oil dielectric fluid and have become contaminated with PCBs during manufacturing and servicing. Id. These mineral oil transformers are mounted on poles throughout electric service areas. This type of transformer is involved in this case. At the end of 1981 the electrical utility industry accounted for 20 million of the 25 million mineral oil transformers in use. Id. at 37345.

Mineral oil transformers account for only a small percentage of the PCBs released into the environment. Each year only .007 per cent of such transformers develop leaks that result in a PCB concentration of 50 parts per million (ppm) or more in the immediate surrounding area. 47 Fed.Reg. at 17430 (April 22, 1982). PCB releases from such transformers amount to 826 pounds annually, 0.21 per cent of the total amount released from electric utility equipment. Id. at 17428.*fn4

Capacitors are devices for improving the voltage and power factor of electrical power systems. They are mounted on utility poles and contain more than 3 pounds of dielectric fluid. 47 Fed.Reg. at 37347. Virtually all capacitors manufactured before 1978 were filled with a dielectric fluid with a PCB concentration near 100 per cent. Id. At the end of 1981 electric utilities had 2,800,000 capacitors in service. Id. at 37347-48.*fn5

Only .009 per cent of capacitors develop leaks each year that result in the contamination of 50 ppm or more of PCBs in the area immediately surrounding the spill. 47 Fed.Reg. at 17434. Capacitor leaks, however, amount in all to 369,251 pounds of PCBs each year. Id. at 17428. This amount represents 94.5 per cent of total annual PCB releases from electric utility equipment into the environment. Id. Unlike transformer leaks, however, which usually develop slowly as gaskets deteriorate, 47 Fed.Reg. at 17432, capacitors often rupture unexpectedly. About 63 per cent of the PCB capacitor spills result from the rupture of the capacitor cases. Id. These ruptures can spread large quantities of PCBs directly into the environment over a large area. Id.

Edison has approximately 40,000 capacitors containing dielectric fluid with concentrations of PCBs in excess of 500 ppm (Ans. ¶ 5). The number of its pole-mounted mineral oil transformers and the level of PCBs in their dielectric fluid is unclear (Ans. ¶ 6). Between 60 and 100 of Edison's capacitors rupture each year, with 100 ruptures occurring in 1983 (Ans. ¶ 10). The number of transformer leaks has yet to be established (Ans. ¶ 11).

The government's complaint focuses on seven capacitor ruptures and Edison's response to the PCB contamination that resulted. According to the complaint, the seven cases followed a similar pattern. PCBs were sprayed around residential areas as a result of a capacitor rupture. Edison's cleanup effort, often undertaken after substantial delay, was limited to removing visible traces of the spilled dielectric oil. Edison did not then test the sites to determine the effectiveness of the cleanup. Subsequent tests by the EPA determined that the sites remained contaminated, with PCB levels as high as 33,520 ppm. At least two individuals suffered skin rashes as a result of direct exposure to the spilled PCBs and others were left with measurable amounts of PCBs in their blood.

II.

In response to the dangers associated with the use of PCBs and other toxic chemicals, Congress enacted the Toxic Substances Control Act (TSCA), Pub.L. No. 94-469, 90 Stat. 2003 et seq. (1976). While the Act is directed at hazardous chemicals generally, PCBs are singled out for special attention in section 6(e) of the Act, 15 U.S.C. § 2605(e). No other chemical is covered by name in the Act. The special attention given PCBs in the Act resulted from congressional recognition of the extreme threat PCBs pose to human health and the environment. See generally Environmental Defense Fund, 636 F.2d at 1271.

Section 6(e) sets out a detailed plan to dispose of PCBs, to phase out the manufacture, processing and distribution of PCBs, and to limit the use of PCBs. Within six months of the effective date of the Act (Jan. 1, 1977), the Environmental Protection Agency (EPA) was required to prescribe methods to dispose of PCBs and mandate the labeling of PCB containers. 15 U.S.C. § 2605(e)(1). Beginning one year after the effective date, PCBs could only be manufactured, processed, distributed and used in a "totally enclosed manner." Section 2605(e)(2)(A). Two years after the effective date all manufacture of PCBs was prohibited, § 2605(e)(3)(A)(i), and two and one-half years after the effective date all processing and distribution of PCBs in commerce was prohibited, § 2605(e)(3)(A)(ii).

Section 6(e) does contain exceptions to these prohibitions. The EPA administrator is permitted to authorize the use of PCBs in a non-totally enclosed manner if the proposed use would "not present an unreasonable risk of injury to health or the environment," § 2605(e)(2)(B). A parallel provision permits the manufacture, processing and distribution of PCBs under some circumstances, § 2605(e)(3)(B). Presumably to ensure maximum regulatory effectiveness, Congress provided that

  [t]his subsection does not limit the authority of the
  [EPA] Administrator, under any other provision of
  this chapter or any other Federal law, to take action
 ...

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