Document 1Q2kEDYJQyjXRE971pw5m7ZQm

writer's DIRECT dial number 452-6412 452-6100 452-6360 Covington & Burling 688 SIXTEENTH STREET, N. W. WASHINGTON,D. C. 20006 TWX: 7IO-B22-OOOB TELEXiSO-593 CABLE: COVUNO October 8, 1976 Mr. Richard L. Rollins Vice President-Engineering Jard Company, Inc. Bennington, Vermont 05201 Dear Dick: After our meeting on Tuesday with Roger Wills and yourself, we discussed the progress of the EPA pro ceeding with Peter Mickles and have made some tentative conclusions about how best to proceed with preparing our witnesses' direct testimony. This letter is a summary of the proceeding thus far and indicates the directions in which we inted to proceed. As you are aware eight witnesses have now been cross-examined during the first five days of hearings. One witness. Dr. Donald I. Mount was excused after con sultation with you and other members of the Ad Hoc Committee. These opening witnesses presented evidence in support of EPA in the following areas: Toxicity and bioaccumulation of PCBs in fresh water organisms (Veith, Nebeker) and estuarine organisms (Hansen, Nimmo); measurement and sampling methods and capabilities (Veith, Munson); dispersion and dilution following discharge from the plant (Calloway, Brungs); and the feasibility and availability of ac tivated carbon as a controlled technology (Rizzo). The principal conclusions of Dr. Allen Nebeker concerning the toxicity and bioaccumulation of Aroclor 1016 in fresh water organisms were subjected to close detailed cross 0268214 COVINOTON S. BURLINO Mr. Richard L. Rollins October 8, 1976 Page Two examination. Dr. Nebeker found it difficult to defend either his testimony or his supporting bioassays and tables. As a result, the evidence as to fresh water organisms now points to a much lower toxicity for Aro- clor 1016 than for the more highly chlorinated aroclors. Moreover, the remaining credible portion of Dr. Nebeker's testimony, together with Dr. Veith's testimony, appears to support a bioaccumulation factor of 50,000 for fresh water organisms. Turning to salt water organisms, an even lower bioaccumulation factor (of approximately 28,000) was established by Dr. Hansen's testimony. Similarly, according to Dr. Hansen, the toxicity level for Aroclor 1016 was 100 times lower than the level of Aroclor 1254, even for highly sensitive estuarine organisms. Further as a result of the cross-examination of EPA's witnesses, significant questions have been raised as to the accuracy and practicality of EPA's proposed measurement and sampling techniques. Considerable ques tion was also raised as to the testimony of Mr. Joseph Rizzo because of the substantial pecuniary interest of Calgon in a finding that its activated carbon system pro vides a feasible treatment method for PCBs. Because Messrs. Calloway and Brungs presented testimony that was helpful to industry's position on the dispersion and dilution of PCBs, they were therefore subjected to only light cross examination. However, one or more of the environmental organizations that are parties to the proceedings conducted a vigorous cross-examination of these two witnesses. The hearings will resume next Tuesday, October 12, and will continue until all remaining witnesses, with the exception of Louis DuPuis (who will testify after EPA has had its economic impact statement cleared by the Office of Management and Budget) , have been cross-examined. Based upon recent conversations with Ridgeway Hall the following will be the expected line-up of witnesses: Tuesday and Wednesday, October 12 and 13 David Young Robert K. Ringer David Armstrong Thursday, October 14 Robert Risebrough Charles E. Mauk Harry Gelboin 0268215 PCB-ARCH0746913 000000077.000002 COVINGTON & BURLING Mr. Richard L. Rollins October 8, 1976 Page Three Friday, October 15 - Wilbur McNulty James R. Allen Monday, October 18 - Renate Kimbrough, M.D. Robert Squire Tuesday, October 19 - Ian C. T. Nisbet Leonard J. Guarraia Wednesday, October 20 - Donald Sargent Although we discussed on Tuesday the possibility of excusing Dr. Squire, on the basis of our discussion with Dr. Brown yesterday we have decided not to excuse him. It is my understanding that you have arranged for the following experts to review the relevant affidavits and to provide us with an appropriate briefing. Steve Jinks of Ecological Analysts will review the testimony of Young and Risebrough and will be present for their testimony to assist in the cross-examination. Drs. Scott Tucker and Jim Meuire of Monsanto will provide a critique of Armstrong's testimony but will not be permitted to be present during the actual cross-examination. Dr. Wolfgang Mueller of the International Center for Environmental Safety will provide critiques on the testimonies of McNulty, Allen, Squire, Gelboin, Kimbrough and Ringer and Roger Wills is arranging for him to be present at the cross-examination beginning Friday, October 15. We have also been given assistance by Dr. John Brown of GE Research and Development Lab in Schnectady, New York, with whom we met yesterday. You have agreed to review the criteria document and the Sargent testimony and have agreed to be present during the cross-examination of Nisbet, Guarraia, and Sargent. As you know, we will be working under some time pressure due to the necessity of completing the record in the proceeding in time to permit the EPA Administrator to make his final decision by January 23. We expect that our witnesses must be prepared to submit their affidavits by the first week of November, and within two or three weeks there after be prepared to submit to cross-examination. Michael Clear will be working closely with Peter in preparing these affidavits and presenting the witnesses in the hearing. It is our understanding that the Ad Hoc Committee has engaged the following witnesses to testify on our behalf at the proceeding: 0266216 PCB-ARCH0746914 000000077.000003 COVINGTON S. BURLING Mr. Richard L. Rollins October 8, 1976 Page Four 1. Dr. Gerald Lauer 2. Dr. Wolfgang Mueller 3. Dr. Eunice Moore and/or 4. Dr. George Wallace 5. Mr. John Hutzler Testimony will concern: (i) whether Aroclor 1016 is toxic to freshwater or saltwater aquatic organisms; (ii) the lower toxicity of lower chlorinated aroclors; and (iii) the bioac cumulation factors he has found for aquatic organisms. Dr. Lauer will comment on the affidavits of Nebeker, Veith, Hansen and Nimmo. Testimony will concern: <i) whether Aroclor 1016 is toxic to mammals; (ii) the lower toxicity of lower chlorinated aroclors; and (iii) the lower toxicity of aroclors which do not contain furines, and the furines contained in 1016. Dr. Mueller will comment on the affidavits of Kimbrough, McNulty, Allen, Squire, Gelboin and Ringer, Testimony will concern the relia bility and accuracy of the EPA measurement and sampling technique, including: (i) whether reliable measurement can be made down to one part per billion in ordinary industrial effluent (as contrasted with distilled water or spiked samples); (ii) whether the EPA methodology is precise and re producible; and (iii) whether the Gas Chromatography Electron Capture method is reliable. Dr. Moore or Dr. Wallace will comment on the in dustry data supplied, and on the affidavits of Veith and Munson Testimony will concern the problem of finding substitutes for PCBs, and the PCB uses for which no substitutes have been found, including: PCB-ARCH0746915 000000077.000004 COVINGTON & BURLING ; Mr. Richard L. Rollins i October 8, 1976 | Page Five I i I ' i (i) general review of non-PCB substitutes, their characteristics and their limitations; (ii) present status of U.L. on non-PCB con taining capacitors; (iii) problem of reliability of interrupting device; and (iv) metallized poly propylene film capacitors and their limitations. i 6. Mr. Ray Clark Testimony will concern: (i) the nature and uses of capacitors; j (ii) the nature and uses of PCBs i in the industry; (iii) the dif ficulty of locating substitutes for | PCBs; (iv) the economic effects of an elimination of PCBs; and (v) the present industry use of 1016, and the storage capacity of Monsanto guar anteeing a supply of 1016 for x months after termination of pro duction . 7. Mr. Phillip Murray effect of EPA regulation on Cornell Dubilier . 8. Mr. Fred Windover effect of EPA regulation on Sprague Electric As we discussed yesterday, the Ad Hoc Committee will also engage an economist to testify concerning the effects of the proposed EPA regulation on the capacitor industry (including costs of compliance, effects on employment and production, etc.) It is our understanding that Dr. Lauer and Messrs. Clark, Murray and Windover have received the basic information they need from us to prepare their testimony, and that the testimony of these four witnesses could be prepared almost immediately. Dr. Moore and Dr. Wallace are awaiting receipt of industry data and the Veith and Munson affidavits before one or the other under takes to analyze the measurement and sampling issues. Finally we understand that Dr. Meuller has received most of the affi davits he will need to prepare his testimony, but that he still requires the Ringer affidavit. Mr. Hutzler will testify concerning an issue which was not covered by the EPA's direct case, but will comment on the Dow proposed substitue for 1016. 0266218 PCB-ARCH0746916 000000077.000005 COVINGTON & BURLING Mr. Richard L. Rollins October 8, 1976 Page Six Based on the following, we propose to write the seven witnesses whose testimony has been confirmed to propose the following schedules of preparing their testimony. As we discussed yesterday in Schenectady when we met at General Electric, we will immediately send these letters to Lauer and Mueller, but will delay sending the others until the end of next week to permit you to confirm their testimony and notify them that such a letter will be forthcoming. 1. Dr. Lauer Preparation of an outline of proposed testimony by October 15; following telephone conver sations and/or meetings with counsel, preparation of affi davit with exhibits by October 27. 2. Dr. Mueller Preparation of an outline of pro posed testimony by October 22; following telephone conversations and/or meetings with counsel, pre paration of affidavit with exhibits by October 31. 3. Dr. Moore and/or Dr. Wallace Receipt of industry data no later than October 12; preparation of outline of testimony no later than October 22; following tele phone conversations and/or meetings with counsel, preparation of affi davits with exhibits by October 31. 4. Mr. Hutzler Preparation of outline of testimony October 15; following telephone conversations and/or meetings with counsel, preparation of affidavit with exhibits by October 27. 5. Mr. Clark Preaparation of outline of testi mony by October 15; following tele phone conversations and/or meetings with counsel, preparation of affi davit and exhibits by October 27. 0268219 PCB-ARCH0746917 000000077.000006 COVINGTON 6. BURLING Mr. Richard L. Rollins October 8, 1976 Page Seven 6. Mr. Murray Preparation of outline of testi mony by October 15; following telephone conversations and/or meetings with counsel, prepara tion of affidavit and exhibits by October 22. 7. Mr. Windover Preparation of outline of testi mony by October 15; following telephone conversations and/or meetings with counsel, preparation of affidavit and exhibits by October 22. In reviewing the case, we discovered that several other topics were covered in the EPA's direct case which might warrant rebuttal testimony from one of our witnesses. These other areas are: (i) a witness on the persistence issue; (ii) a witness on the carbon adsorption process; and (iii) a witness on the present status of Canadian regulation of PCBs. We should discuss promptly whether to attempt to engage these other witnesses. We wish to emphasize that we must have a final list of our wit nesses by October 15, for submission on that date to the EPA. srv cc: Messrs. Wood Wills Nourse Tuttle Peter J. Nickles Steven S. Rosenthal John Michael Clear PCB-ARCH0746918 000000077.000007