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Administrative Law Keyed to Breyer
Hercules, Inc. v. Environmental Protection Agency
Citation:
598 F.2d 91 (1978)Facts
Endrin and toxaphene are chlorinated hydrocarbon pesticides that have been used for several decades for pest control on crops. Evidence showed both substances were toxic to aquatic life and potentially carcinogenic. Velsicol Chemical Corporation was the sole domestic manufacturer of endrin, producing 3-6 million pounds annually at its Memphis plant, with discharges reaching the Mississippi River. Hercules, Inc. was the primary manufacturer of toxaphene, producing approximately 100 million pounds annually at its Brunswick, Georgia plant, with discharges flowing into the Brunswick Estuary.
EPA conducted laboratory bioassays on various aquatic species to determine their sensitivity to these substances. For each substance, EPA identified the most sensitive species tested (pinfish for toxaphene and pink shrimp for endrin), determined the concentration that would kill half the test population in 96 hours, and then applied a factor to estimate safe long-term exposure levels. EPA then set ambient water criteria and calculated effluent discharge standards using a mixing zone factor to account for dilution. EPA also established mass limitations to prevent manufacturers from meeting standards through dilution rather than treatment.
Hercules challenged EPA’s reliance on laboratory tests rather than field studies conducted in the Brunswick Estuary, which showed aquatic life surviving at higher toxaphene concentrations. Velsicol argued that EPA failed to adequately consider technological feasibility in setting endrin standards. Both manufacturers also raised procedural objections regarding EPA staff contacts with the decision-maker and the omission of a tentative decision.
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