PCB Regulations: The Origin Story

The PCB regulations (40 CFR 761) were proposed by the USEPA to implement some of the  specific the requirements in the 1976 Toxic Substance Control Act (TSCA).  While only a small part of TSCA, the PCB mandates (Section 6(e)) looms large in the regulatory world.  Yet a closer look at the history of the TSCA reveals that the the PCB program was more an accident of chance rather than a carefully conceived Congressional initiative.  If you want to learn more about how this particular “sausage” was made, then read on.

The Roots of TSCA

President Richard Nixon (possibly the most pro-environmental president since Teddy Roosevelt) first proposed the Toxic Substance Control Act (TSCA) to the 92nd Congress in 1971 .  The President’s Council on Environmental Quality (CEQ) had crafted the initial TSCA bill over the previous year; coincidentally, the same year that the USEPA itself came into being (1970).  In CEQ’s 1971 report titled Toxic Substances, the the Council argued that the government needed additional legal authorities to regulate toxic substances in commerce to meet the larger goal of protecting public health and the environment.  Here is a summary of the CEQ’s principal arguments for the passage of TSCA:

  1. Toxic substances are entering the environment.  Over 9 million chemicals are known with several thousand new ones added each year.  Although many of these are not toxic, the sheer number of them and the evidence of toxic incidents that have already occurred indicate the nature of the problem.
  2. These substances can have severe effects.  The report describes the range of possible toxic effects in general terms that we are all now familiar with.
  3. Existing legal authorities are inadequate.   The report describes the principal environmental legislation as being media based – the then Federal Water Pollution Control Act for waste water, the Clean Air Act for air pollution etc.  CEQ indicated there was a need for legislation that cut across media and focused directly on potential toxic pollutants.

While the US Senate found the arguments for TSCA persuasive, the House of Representatives did not.  As a result, TSCA languished through the 92nd and 93rd Congresses; the House majority believed TSCA placed unreasonable burdens on industry, particularly the chemical industry.  Recall that the period from 1973 to 1975 was one of severe economic recession; there was little national appetite for adding to the regulatory burden on an already depressed industrial sector.

The Resurgence of US Environmentalism

But the 1960s and ’70s were also periods of rapid growth for the environmental movement.  Pressure was increasing for government to play a larger role in protecting human health and the environment; environmental groups were calling on Congress to do more.  Washington was under siege for action on both the economy and the environment. Given the conflicting interests Congress did what it often does best, nothing.  Meanwhile the draft TSCA legislation collected dust.

Kepone and the Environmental Tipping Point

Meanwhile a tragic series of mishaps at a small pesticide manufacturing plant on the banks of the James River in Hopewell, Virginia was about to grab the national spotlight and indirectly become responsible for the passage of TSCA.     Allied Chemical Company (which subsequently became AlliedSignal) had a manufacturing plant in Hopewell that produced a small volume pesticide named Kepone (aka chlordecone).  In 1973 the overseas demand for Kepone began to increase and rather than expanding its own production facilities to meet this demand, Allied leased the Kepone production rights to two of its Hopewell employees.  These employees started a new business called Life Science Products (LSP) and in 1973 they began production of Kepone in a renovated former Hopewell service station.

Kepone is a member of the chemical group called “chlorinated pesticides”.  This group also includes other more well known insecticides like DDT, chlordane and heptachlor.  Since the 1970s, the use of almost all of these chlorinated pesticides has been banned in the US and abroad.   The chemical structure of Kepone is complex and unlike any naturally occurring substance.  As a result, Kepone is resists natural degradation and is persistent in the environment.  Also like other chlorinated pesticides it bio-concentrates up the food chain.  However, unlike some other chlorinated pesticides, it can be very toxic to people.

LSP’s attention to employee safety and house keeping practices were somewhere between lax and downright sloppy.  There are newspaper accounts of Kepone powder blowing like snow in the wind and forming dunes on and off of the plant’s property.  The adverse health effects caused by Kepone exposures began to surface when LSP’s employees started exhibiting the severe neurological symptoms indicative of Kepone poisoning. Ultimately 30 LSP employees were hospitalized and more than 50 were seriously poisoned.  Testing of other exposed people  in Hopewell (mostly family members of employees) identified that more than 200 had Kepone body burdens higher than was considered safe.  Ultimately the problems drew the attention of the federal government.

Quoting from one incident report:

“CDC (Center for Disease Control) investigators inspected the LSP facility and were appalled to find Kepone everywhere. One CDC epidemiologist reported that, “…there were 3 to 4 inches of the material on the ground…There was a 1 to 2 inch layer of Kepone dust encrusting everything in the plant.” Analyses of the air within the plant indicated that the employees inhaled 30,000 μg of Kepone per day. This stands in contrast to the federal government acceptable limit of 10 μg/day.”

However, even this report did not capture the full extent of the problem as it was estimated that 10-20 tons of Kepone had been discharged directly to the James River.  The river ecosystem was devastated with significant impacts to birds, fish and other wildlife.  The entire previously productive fishery between Hopewell and the Chesapeake Bay (100 river miles) was for years out of health concerns and 4,000 people involved in the James River fishery lost their jobs.   The fishery was not reopened until decades later after clean sediments finally buried the Kepone under a thick layer of silty mud.

The Kepone incident received broad national attention.  Dan Rather and the 60 Minute investigative team did a long segment on Kepone and the Hopewell plant.  There were clips of Dan Rather on the roof of LSP’s building pushing around mounds of Kepone dust.  Kepone was also the lead story in Time magazine.  The governors of Virginia and Maryland demanded that the recently formed USEPA conduct a federal investigation and several Congressional hearings were held.

Kepone’s Political Fallout

The Kepone incident pushed public sentiment well passed the tipping point on the issue of toxic substances regulation; the uproar and resulting political pressure overcame the House of Representative’s resistance to the passage of TSCA.  In 1976, after a five year wait, TSCA was finally passed by large majorities in both the Senate and the House.  President Gerald Ford signed the bill into law.

Epilogue

The original 1970 version of TSCA authored by the Council on Environmental Quality and submitted to Congress in 1971 did not contain the provision directing EPA to regulate PCBs (aka Section 6(e)); it did not mention PCBs at all.  Section 6(e) first appeared as an amendment to the 1975 Senate bill and  there was strong advocacy in favor of it by environmental groups and labor unions.  But, the Senate rejected the amendment because the majority considered the 6 (e) language to be too technically specific for inclusion in the Act and because the USEPA Administrator, Russell Train, argued strongly against its inclusion.

However, despite this earlier rejection, section 6(e) was re-proposed as an amendment to the Senate’s 1976 TSCA bill by Senator Gaylord Nelson of Wisconsin.  Nelson correctly sensed that, as a result of the Kepone incident, the political ground had shifted and the time was now right to get TSCA passed with section 6(e).  With the maelstrom of Kepone publicity swirling around, Nelson’s amendment was accepted into the Senate bill without resistance on the last day of debate. 

Meanwhile, Representative John Dingell of Michigan offered Section 6(e) as an amendment to the House TSCA bill.  Unlike in the Senate, there was spirited opposition to the amendment in the House.  However, even in the House, public outrage over the Kepone incident trumped all other considerations in the representative’s minds.  The amendment was quickly adopted and the bill moved on to President Ford’s desk with Section 6(e) intact.  Thus was born the PCB regulations.