Environmental Defense Fund v. Environmental Protection Agency, the Electronic Industries Association's Ad Hoc Pcb Committee and Westinghouse Electric Corp. v. Environmental Protection Agency, Bass Anglers Sportsman Society of America v. Douglas M. Costle, Administrator, United States Environmental Protection Agency

We are called upon in these consolidated cases to review challenges to the Environmental Protection Agency's (EPA) first regulations prohibiting discharge into the nation's waterways of a toxic substance, polychlorinated biphenyls (PCBs), under the Federal Water Pollution Control Act Amendments.1 For the reasons that follow, we uphold the EPA's regulations.

This section was amended by section 53 of the Clean Water Act of 1977, 33 U.S.C.A. § 1317(a) (1977); See text at ---- - ----, ---- - ---- of --- U.S.App.D.C., at 71, 73-74 of 598 F.2d Infra. See also Hercules, Inc. v. EPA, (D.C.Cir. 1978), --- U.S.App.D.C. --- at --- - ---, 598 F.2d 91 at 100-102; Federal Water Pollution Control Act Amendments of 1972 (1972 Act or the Act), 33 U.S.C. §§ 1251-1376 (1976).

I. FACTS AND PRIOR PROCEEDINGS.

A. Factual Background on PCBs.

PCBs are a group of related chlorinated hydrocarbon chemicals useful in several industrial processes and toxic to a wide variety of organisms, including man. The chemistry of PCBs figures prominently in this case and will be discussed below. At this point, we need note only that PCBs fall into two chemical categories: PCBs with a low chlorine content (less chlorinated PCBs) and PCBs with a high chlorine content (more chlorinated PCBs). More chlorinated PCBs have been manufactured and used since 1929. For decades, they served in a variety of industrial uses such as ink solvents, plasticizers, adhesives, and textile coatings,2 but their principal use was and is in electrical equipment. PCBs are nonflammable liquids that are highly resistant to electrical current. Therefore, they have been widely used to fill electrical devices such as capacitors and transformers, aiding in the storage of electrical charge without creating the fire hazard that would occur if a flammable filler were used.

Awareness of the danger from PCBs to the environment and to man was slow to develop. Although large quantities of PCBs were manufactured and leaked into the environment, the PCBs detected in the environment were long mistaken for pesticide residues, which they resemble chemically. It was not until the mid-1960's that the presence of PCBs in the environment and the harm they inflict were recognized and distinguished from the pesticide problem.3 As we shall discuss below, it became apparent from scientific studies that more chlorinated PCBs built up to dangerous levels in the sediments of waterways, in the water, in fish, and ultimately in humans, creating a serious risk of death for aquatic organisms and disease (particularly cancer) for man.

In 1971-72, in response to public and government pressure, PCBs manufacturers and users took initial steps to reduce the PCBs danger.4 Manufacture was shifted from the more chlorinated PCBs to the less chlorinated PCBs, because it was hoped that less chlorinated PCBs were less dangerous. PCBs use was limited to closed electrical equipment, where the need was greatest and the leakage was least. Some effort was made to control discharge of PCBs into waterways.

However, in 1972-74 manufacturers were curtailing their efforts to find acceptable substitutes for PCBs,5 and manufacture of less chlorinated PCBs continued at high volumes, E. g., forty million pounds in 1974. 42 Fed.Reg. 6533 (1977). EPA's initial effort to control discharge of PCBs into waterways, the precursor of the proceeding now on review, ended in failure in 1973-74.6 Discharges of PCBs into the nation's waterways continued.

Developments in the early and mid-1970's heightened the public concern about PCBs and resulted in new regulatory efforts in late 1975 and early 1976. Monitoring of residues in fish revealed that industrial discharges of PCBs were rendering fish in many waterways unhealthy for human consumption.7 This monitoring culminated in a state proceeding, General Electric Co., 6 Envir.L.Rep. (Envir.Law Inst.) 30007 (1976), in which New York's Department of Environmental Conservation found that discharges of PCBs by General Electric, a major manufacturer of electrical equipment containing PCBs, had rendered most upper Hudson River fish dangerous to eat. Id. at 30017-18. Similar situations threatened the fishing industry in the Great Lakes and elsewhere.

While the General Electric case was pending, a national conference on PCBs hazards was held in November 1975 that resulted in greater awareness of the nationwide threat posed by PCBs and contributed to the renewed EPA effort to regulate and control PCBs discharges.8 The EPA regulations now on review are the culmination of that effort.

Following the 1975 renewal of EPA's regulatory effort, further information accumulated with respect to the health hazards posed by PCBs. Moreover, substitutes for PCBs were developed in this country and in Japan that would serve adequately in electrical equipment without creating a fire hazard.9 Congress became impatient and wrote a special provision devoted solely to PCBs into the Toxic Substances Control Act of 1976, 15 U.S.C. §§ 2601-2629 (1976). See section 6(e), 15 U.S.C. § 2605(e) (1976). Considering that there are few statutes aimed so particularly at control of an individual chemical, we construe this provision as a significant comment on the failure of existing regulatory mechanisms.10 Failure of existing regulatory mechanisms to control PCBs contributed materially both to passage of the preventive sections of the Toxic Substances Control Act and to strengthening, in 1977, of the toxics provision of Federal Water Pollution Control Act Amendments of 1972. See 33 U.S.C.A. § 1317(a) (1977).11

Further, the failures in initial efforts at controlling PCBs were a major factor in new administrative initiatives. During the late 1960's and early 1970's, the Food and Drug Administration,12 the Occupational Safety and Health Administration,13 and EPA had made independent efforts to control PCBs, none of them wholly successful. This lack of success stimulated a new effort at interagency cooperation in toxics regulation, and was a major factor in the development of EPA's large-scale program for regulation of discharges of toxic substances, including PCBs.14

B. PCBs Proceedings.

We set forth the history of EPA's PCBs proceedings in detail because it bears on both the posture of this appeal and the interpretation of the statutes that Congress passed in 1976 and 1977. In sum, the history of EPA's PCBs proceedings is a history of frustration of a congressional mandate for action. Regulatory steps that Congress expected to take little more than One year took Four years.

On October 18, 1972, Congress enacted the Federal Water Pollution Control Act Amendments of 1972 (1972 Act or the Act), 33 U.S.C. §§ 1251-1376 (1976). The 1972 Act prescribed a rigid schedule for promulgation of effluent standards for toxic substances. Section 307(a), 33 U.S.C. § 1317(a) (1976),15 directed EPA to publish a list of toxic substances within ninety days, propose effluent standards for the listed substances within 180 days after listing, and promulgate final effluent standards within six months after the proposed standards. Thus, EPA was to promulgate toxic effluent regulations by early 1974.

In May 1973, after EPA failed to meet its first deadline, the Natural Resources Defense Council, Inc. (NRDC) sued EPA to hasten EPA action and bring about publication of a toxic substances list. This suit ended in a consent decree in June 1973, fixing a timetable for EPA. NRDC v. Fri, 3 Envir.L.Rep. (Envir.Law Inst.) 20587 (D.D.C.1973). Pursuant to this timetable, EPA issued, in July 1973, a proposed list of nine toxic substances, including PCBs, 38 Fed.Reg. 18044 (1973), and, in September 1973, a final list of the same nine substances. 38 Fed.Reg. 24342 (1973). In December 1973, EPA proposed standards for the nine substances. 38 Fed.Reg. 35388 (1973).16 In April and May 1974, EPA held an evidentiary hearing on the proposed standards in which numerous objecting parties participated.

However, after the hearing, EPA failed to promulgate final standards for any of the nine substances. There were several causes for this failure. EPA contended that it lacked sufficient data to set regulations that would survive judicial review.17 Congressmen later expressed their belief that the procedures employed by EPA substantially impeded effective regulation due to their excessive complexity and formality.18 Finally, EPA experienced difficulty in responding to the many concerns raised by industry representatives at the hearing. Some of those concerns had little bearing on regulation,19 but others were weighty.20

EPA's failure to promulgate any toxic standards triggered a waive of suits by environmental groups seeking to compel EPA to promulgate regulations for PCBs and other toxic substances.21 Before those suits could be resolved, EPA developed a new approach to toxics regulation, and negotiated a consent decree with the environmental groups that was accepted, with modifications in June 1976, by the United States District Court for the District of Columbia. NRDC v. Train, 8 ERC (BNA) 2120, 2122 (1976) ("Flannery decree"), Rev'd in part on other grounds sub nom. NRDC v. Costle, 183 U.S.App.D.C. 11, 561 F.2d 904 (1977). EPA's new approach had two elements. First, EPA committed itself to controlling toxic substances under provisions of the 1972 Act other than section 307(a), chiefly sections 301 and 304, 33 U.S.C. §§ 1311 & 1314 (1976), which allowed EPA to regulate on an industry-by-industry basis using informal rulemaking proceedings and feasibility criteria. Second, EPA committed itself to make at least limited use of section 307(a): it would regulate some substances, including PCBs, under the provision; and it would use the provision to limit or prohibit discharges of hazardous substances for some or all industrial categories as a supplement to its industry-by-industry approach.22

Following the failure in 1974 of its initial regulatory efforts, and consistent with the regulatory program and consent decree eventually adopted, EPA set out in 1975 to investigate PCBs more thoroughly. It commissioned a survey of the scientific literature on PCBs, and sponsored a national conference on PCBs in November 1975.23 It engaged Dr. Ian Nisbet, an expert in toxicity of PCBs, to prepare a Criteria Document.24 The Criteria Document served to collect and focus past research on more chlorinated PCBs, but as we will discuss, it contained substantially less material on less chlorinated PCBs.

Based on these preparations, EPA proposed effluent standards for PCBs discharges on July 14, 1976. The proposed standards allowed on the average no more than one part per billion of PCBs in certain discharges by manufacturers of electrical equipment, and prohibited any PCBs in other discharges by manufacturers of electrical equipment and in all discharges by manufacturers of PCBs. The proposed regulations made no distinction between more chlorinated PCBs and less chlorinated PCBs. See 41 Fed.Reg. 30476-77 (1976).

On August 20, EPA commenced a formal rulemaking hearing before an administrative law judge on the proposed PCBs standards, which was concluded on November 30 after twenty-one days of testimony. In addition to the Criteria Document, EPA presented testimony of twenty-two witnesses. See 42 Fed.Reg. 6532. The PCB Ad Hoc Committee of the Electronics Industry Association, consisting of nine manufacturers of capacitors, proposed more relaxed standards of 100 parts per billion for discharges of one type of less chlorinated PCBs, Aroclor 1016, and Westinghouse Electric Corp. proposed a standard of 50 parts per billion for discharges of another, Aroclor 1242. These parties (hereafter, industry petitioners) presented the testimony of seven witnesses. See id. at 6532, 6541. The Environmental Defense Fund (EDF) presented the testimony of one witness concerning carcinogenic effects of PCBs. Three other parties participated in the hearing, and thirteen persons or entities filed written comments. At the close of the hearing, the record was furnished to the EPA Administrator (Administrator) for his consideration.25

In January 1977, the Administrator filed his final decision26 on PCBs standards with the EPA hearing clerk, and, on February 2, 1977, published the standards. 42 Fed.Reg. 6532 (1977). The final standards were more stringent than the proposed standards in that they prohibited any PCBs in discharges of manufacturers of electrical equipment.

On January 19, 1977, EDF petitioned this court for review of the regulations. On January 20, industry petitioners petitioned the United States Court of Appeals for the Third Circuit, and, on April 15, the Bass Anglers Sportsman Society of America petitioned the United States Court of Appeals for the Fifth Circuit. The petitions in the Third and Fifth Circuits were transferred to this court, and the cases were consolidated. A motion by industry petitioners for a stay of the regulations was denied by this court. On December 27, 1977, during the pendency of this appeal, Congress enacted the Clean Water Act of 1977, Pub.L.No.95-217, 91 Stat. 1566, which amended the 1972 Act. Compliance with the PCBs regulations was required by February 2, 1978. 42 Fed.Reg. 6555.

II. STATUTORY FRAMEWORK.

The earliest version of the Federal Water Pollution Control Act was passed in 1948, and it was amended five times prior to 1972. See W. Rodgers, Environmental Law 355-61 (1977). Congress overhauled it completely in the Federal Water Pollution Control Act Amendments of 1972. This "statute, enacted on October 18, 1972, authorized a series of steps to be taken to achieve the goal of eliminating all discharges of pollutants into the Nation's waters by 1985, § 101(a)(1)." E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 116, 97 S.Ct. 965, 969, 51 L.Ed.2d 204 (1977). The steps to be taken included promulgation by EPA of effluent standards, or regulations limiting discharges of various kinds of pollutants, under a number of statutory provisions covering industrial sources, municipal sources, sources that discharge into public treatment facilities (pretreatment standards), and sources that discharge toxic pollutants. See W. Rodgers, Supra, at 451-88.

The Supreme Court and this court have previously reviewed industrial source effluent regulations.27 However, no court has previously reviewed toxic pollutant effluent regulations adopted pursuant to section 307(a). The toxics standards provision of the 1972 Act, section 307(a), poses a number of difficult interpretive problems. Fortunately, we have some aids in interpreting this section, including both a prior and a subsequent legislative enactment. Prior to the 1972 Act, Congress passed the Clean Air Act Amendments of 1970, containing a hazardous air pollutant provision28 that bears a marked resemblance to the toxics provision. Subsequent to the 1972 Act, Congress amended the toxics provision in the Clean Water Act of 1977. See 33 U.S.C.A. § 1317(a) (1977). Following the example of the Supreme Court in Adamo Wrecking Co. v. United States, 434 U.S. 275, 98 S.Ct. 566, 54 L.Ed.2d 538 (1978),29 we employ the subsequent amendment as an aid in interpreting the 1972 provision under which the standards under review were promulgated.

Prior to 1972, there was no special provision in the federal water pollution laws to cope with toxic pollutants. As the number and amount of chemicals discharged into the nation's waterways increased in recent decades, it became apparent that some groups of chemicals posed a special danger to public health and the environment. There were two leading examples of such groups: chlorinated hydrocarbons, a group that included both pesticides (such as DDT, endrin, and toxaphene) and industrial chemicals (such as PCBs); and heavy metals, a group that included cadmium, mercury, and others.30

Toxic substances, such as these, create a special danger in several ways. As demonstrated by a number of disasters involving widespread human poisoning or massive kills or contamination of fish, shellfish, birds, and other wildlife, many chemicals discharged into waters are lethal or injurious even in minute doses.31 Toxic chemicals have been identified repeatedly as a cause of cancer, through studies both of persons exposed to such chemicals on the job and elsewhere, and of animals in the laboratory and the field.32 Moreover, toxic substances often have characteristics besides toxicity that magnify their danger. These characteristics include (1) physical and chemical factors such as resistance to detoxification by sunlight and water, and mobility in the air and water; and (2) biological factors, such as tendencies not to be safely degraded by organisms, but rather to accumulate in organisms or to degrade into other toxic substances. Finally a most troubling characteristic of toxic substances is how little they are understood by scientists. New discoveries about their nature and effects are made constantly, but existing knowledge seems inadequate to measure their full danger.33

Congress's response to the toxics problem was section 307 of the 1972 Act. Other interlocking sections gave prominence to section 307. Section 101(a)(3) of the Act, 33 U.S.C. § 1251(a)(3) (1976), stated that "it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited." Section 502(13), 33 U.S.C. § 1362(13) (1976), gave a broad definition34 to "toxic pollutant," drawing on the wide array of direct and indirect effects of such substances. Other provisions established that citizen suits for violations of section 307 were free from certain procedural requirements of other citizen suits,35 that section 307 standards were to become effective quickly,36 and that section 307 standards were to be reviewed at least every three years.37 The 1977 amendments to the Act continued this highlighting tendency, by declaring that toxic pollutant standards are not subject to individual waiver or modification as are other standards.38

Section 307(a) sets forth the substantive considerations and procedures for EPA to use in formulating toxics standards. In the substantive provisions, section 307(a)(2) requires EPA to "take into account" six factors that were intended to cover comprehensively the effects of toxic substances in the environment. Section 307(a)(5) allows EPA to set different standards for industrial categories using different processes. Section 307(a)(4) directs EPA to set the standards at a level that provides "an ample margin of safety," a phrase that is the section's polestar its guiding principle in protecting against incompletely understood dangers.

More complex than the section's substantive provisions are its procedural provisions, which mingle formal with informal rulemaking. As discussed previously, the statute prescribed mandatory deadlines for listing of toxic substances, proposal of standards, and promulgation of standards. The basic mechanism was informal rulemaking. However, following the arrangement of section 112 of the Clean Air Act, See note 28 Supra, Congress grafted an added procedural limb to the body of the provision. A hearing was to be held, and a finding concerning whether a modification of a proposed effluent standard was justified was to be made "on the record" of that hearing.39

In the Clean Water Act of 1977, Congress amended the toxics provision in major part to solve the problems revealed in the course of the 1973-76 proceedings. Congress adopted its own list of sixty-five families of toxic substances in place of EPA's older, shorter lists,40 and created two procedures for EPA to use, separately or in tandem. Under the first procedure, amended section 307(a)(2), 33 U.S.C.A. § 1317(a)(2) (1977), directed EPA to set industry-by-industry regulations based on technological feasibility criteria.41 Under the second procedure, which was based on the 1972 provision, amended section 307(a)(2) directed EPA to set health-based effluent standards on a pollutant-by-pollutant basis using the original factors of toxicity, persistence, degradability etc., and the familiar "ample margin of safety" standard.42 The original cumbersome procedures were relaxed: formal procedures were replaced by informal ones, and the timetable for rulemaking was enlarged.43

III. PROCEDURAL CHALLENGES.

Industry petitioners raise two challenges to the PCBs regulations on procedural grounds. First, they contend that the EPA judicial officers assisting the Administrator in preparing the decision improperly relied on the EPA staff members who were advocates for the regulations. This contention is based on both the fact of contacts between staff advocates and judicial officers,44 and the close similarity between the findings and conclusions proposed by the staff advocates and the final decision.45 This contention is identical to one raised in Hercules, Inc. v. EPA, (1978), 194 U.S.App.D.C. --- at --- - ---, 598 F.2d 91 at 119-128, decided today; and we reject it for the reasons stated therein.

Second, petitioners contend that EPA's assignment of a staff attorney to act as a special judicial officer in this proceeding was improper. Industry petitioners' challenge to this assignment is the only procedural contention in this case not paralleled in Hercules, and so we address it in somewhat more detail than the first contention. In the PCBs proceeding, EPA assigned Mr. John Settle, an attorney in the Grants, Contracts and Administration Division of EPA's Office of General Counsel,46 to act as a special judicial officer and, in that role, to assist the agency's chief judicial officer in preparing the final decision under the Administrator's supervision.

Under section 5(d)(2) of the Administrative Procedure Act (APA), 5 U.S.C. § 554(d)(2) (1976), in agency adjudication, an agency employee who makes an initial or recommended decision may not "be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency."47 EPA staff who advocated the proposed rules before the agency are also employees of a Division in the Office of the General Counsel.48 By analogy to section 5(d) of the APA, which applies only to adjudication, industry petitioners allege that Mr. Settle's assistance in preparing the Administrator's final decision requires that the regulations be vacated and remanded.49 We disagree.

The proceedings in this case were clearly rulemaking proceedings. See Hercules, Inc. v. EPA, 194 U.S.App.D.C. at --- - ---, 598 F.2d at 117-119. Congress was of the view that the APA's separation of functions provision, section 5(d), should not apply to rulemaking proceedings, and its failure to make the provision applicable to rulemaking was intentional.50 In Congress's view, the need for flexibility in rulemaking outweighed the advantages of rigid staff divisions.

There is no contention that Mr. Settle was involved in any way in the rulemaking proceedings in question prior to his assignment to assist the Administrator.51 Moreover, there is no contention that anyone in the Office of General Counsel placed improper pressure upon him in his capacity as acting judicial officer.52

Industry petitioners contend "there is an obvious risk that an individual placed in this position might be easily swayed, consciously or subconsciously, by the possibility that a decision adverse to his superior would adversely affect his career prospects."53 However, to the extent that there may be such a risk, or an appearance of such a risk, Congress found that the benefits of protecting against it outweighed the countervailing inefficiency created by rigid staff division only in adjudicatory proceedings, not rulemaking. In the absence of any contention by petitioners that Mr. Settle was improperly influenced, we reject their allegation that his participation in the preparation of the final decision tainted the regulations.

IV. INTERACTION WITH TOXIC SUBSTANCES CONTROL ACT.

Congress enacted the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2629 (1976), during the pendency of EPA's proceedings on the proposed PCBs effluent standards. TSCA requires notice of intent to manufacture, and pre-manufacture testing of chemical substances, and confers authority on EPA to regulate the manufacture, processing, distribution in commerce, use, or disposal of such substances. In addition to the provisions applicable to chemical substances in general, TSCA includes a specific provision concerned solely with polychlorinated biphenyls, section 6(e), 15 U.S.C. § 2605(e) (1976). Section 6(e) provides for a gradual phasing out of PCBs use over a two and one-half year period with limited provision for exemptions.54

Industry petitioners contend that this section of TSCA was intended to "preempt" EPA's authority under the 1972 Act. They assert that EPA's ban on discharges of PCBs into waterways makes manufacture and processing of PCBs impossible and that TSCA's phase-out timetable and exemption authority show that Congress did not intend PCBs to be completely and immediately phased out. Therefore, the argument goes, EPA should not achieve this result by the use of its authority under another regulatory provision, the toxics section of the 1972 Act. EPA responds that Congress did not intend section 6(e) to deprive it of its authority under the 1972 Act.55

We agree with EPA. Strictly speaking, the claim made by industry petitioners is one of "repeal by implication," the overriding of one statute by a later enactment Sub silentio, rather than a claim of "preemption." "It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored." United States v. United Continental Tuna Corp.,425 U.S. 164, 168-69, 96 S.Ct. 1319, 1323, 47 L.Ed.2d 653 (1976) (collecting cases). "Implied repeals occur if two Acts are In irreconcilable conflict." Runyon v. McCrary, 427 U.S. 160, 172-73 n.10, 96 S.Ct. 2586, 2595, 49 L.Ed.2d 415 (1976) (emphasis added). When confronted with statutes that are "capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34, 95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974) (quoting Morton v. Mancari,417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)).

Not only is there no "clearly expressed congressional intention" that TSCA repeal EPA's prior regulatory authority, and no "irreconcilable conflict" between TSCA and the 1972 Act, but, in fact, Congress carefully and explicitly harmonized TSCA with prior enactments. Section 9(b) of TSCA, 15 U.S.C. § 2608(b) (1976) (emphasis added), provides, in part:

If the Administrator determines that a risk to health or the environment associated with a chemical substance or mixture Could be eliminated or reduced to a sufficient extent By actions taken under the authorities contained in . . . Other Federal laws, the Administrator shall use such authorities to protect against such risk unless the Administrator determines, in the Administrator's discretion, that it is in the public interest to protect against such risk by actions taken under this chapter. This subsection shall not be construed to relieve the Administrator of any requirement imposed on the Administrator by such other Federal laws.

Section 9(b) leaves EPA the choice of regulating toxic substances under TSCA, other statutes (such as the 1972 Act), or both. Throughout debate over passage of TSCA, representatives of the chemical industry urged that it would be unnecessarily duplicative of existing authority, and that EPA should not be given a choice among multiple regulatory authorities.56 Congress rejected those arguments, which petitioners, in effect, now seek to resurrect. Congress determined that a choice among regulatory authorities was necessary so that EPA could use the most effective means available to combat unknown and potentially extreme risks from toxic substances, and that judicial review of EPA's choice was inappropriate.57 Our interpretation of section 9(b) is reinforced by section 6(e)(5), 15 U.S.C. § 2605(e)(5) (1976), which states: "(t)his subsection (6(e) (governing PCBs)) does not limit the authority of the Administrator, under any other provision of this chapter or any other Federal law, to take action respecting any polychlorinated biphenyl."

Petitioners contend it is incongruous that EPA can take action concerning PCBs under section 307 that they contend, Congress did not subsequently authorize under TSCA.58 However, the provision of multiple regulatory authorities is far from unknown. Indeed, the Supreme Court recently noted, concerning civil rights legislation, that "legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination." Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). Legislative enactments concerning dangerous substances evince a similar intent. In EDF v. Department of Health, Education and Welfare, 138 U.S.App.D.C. 381, 428 F.2d 1083 (1970), this court held that Congress had not intended, by passage of the Federal Insecticide, Fungicide and Rodenticide Act, to limit authority to regulate pesticide residues in food under the Federal Food, Drug and Cosmetic Act. Id. 138 U.S.App.D.C. 384-86, 428 F.2d at 1086-88. Similarly, in Bell v. Goddard, 366 F.2d 177 (7th Cir. 1966), the court held that Congress had not intended by passage of the Poultry Products Inspection Act, to limit authority to regulate drug residues in poultry under the Federal Food, Drug and Cosmetic Act. Accordingly, we find no merit in the argument that TSCA was intended to constrain EPA's authority under the 1972 Act.

V. EVIDENTIARY BASIS FOR REGULATION OF LESS CHLORINATED PCBs.

A. Arguments of the Parties.

The principal claim of industry petitioners is that EPA's regulations lack an adequate basis in the record to the extent that they cover less chlorinated PCBs because the record consists, in large part, of studies of related, but different substances (more chlorinated PCBs). In order to rule on this claim, we have no alternative except to venture into a difficult realm of chemistry and toxicology, for, however deferential may be our review, we cannot rule on an issue without a firm grasp