Petition — NALCO CHEMICAL CO. v. ENVIRONMENTAL PROTECTION AGENCY (Nos. 75-1613, 75-1602, 75-1612, 75-1614)

Supreme Court brief1975

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1975.

No 75-1613

NALCO CHEMICAL COMPANY,

Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT.

VicToR P. KAYSER,

JOHN C. BERGHOFF, JR.,

135 South LaSalle Street,

Chicago, Illinois 60603,

DAvID MACHANIC,

WILLIAM H. FITZ,

1200 18th Street, N. W.,

Washington, D. C. 20036,

Attorneys for Petitioner.

Of Counsel:

CHADWELL, KAYSER, RUGGLES,

McGEE & HASTINGS, -

135 South LaSalle Street,

Chicago, Illinois 60603,

(312) 726-2545,

PIERSON, BALL & Down,

1200 18th Street, N. W.,

Washington, D. C. 20036,

(202) 331-8566.

MAY 5 1976

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

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TABLE OF CONTENTS.

EEL SD eS ee ee

Jurisdiction

ceed aden suneeeSoastwencecs

Statutes and Regulations Involved ..................

ee ie eb ee eee Ke nee eee

Chronology of the Regulations .................

ED ND noe ac ctevedenéubieue seas

Reasons for Granting the Writ ....................4.

Il.

Ill.

Conclusion

Appendix A

Appendix B

The Lower Court Unjustifiably Attributed Inherent

Discretion in the EPA to Regulate, Despite a

Limited Congressional Grant of Authority ......

Threshold Determination ................

RE SE ceca ce ebeenepeeseas

Comparison with Other Sections ..........

Generalized Attribution of Discretion ......

The Lower Court Unjustifiably Limited the Scope

of Its Review Because This Case Involved Environ-

The Conflict Within the Lower Court as to

NE Oe OE 6 kb ie edtakSiebeesedne

The Record Does Not Support the Regulation

and Its Promulgation Constitutes a Clear Error

ES a nk sa encocescounesecdeceds

The Regulation Should Be Set Aside or Remanded

to the EPA Because of Failure to Provide Mean-

ingful Opportunity for Comment ..............

eee eosaeaeseOeeese@ee1e eee eee ee £e oa gceene 6 eo 6 8.6 6.84

eseeseeeseeeene @Oevee@eseCePgea.eCc@eeoo1es6@sé&e@estse@¢

“4 Uwe WC WN NO —

TABLE OF AUTHORITIES.

Cases.

Amoco Oil Co. v. EPA, 501 F. 2d 722 (D. C. Cir. 1974)

[eee Sau eehd ERE ChERSEEDS RES RAee Leena 4,9, 10

Austin v. Jackson, 353 F. 2d 910 (Sth Cir. 1965) ...... 23

Bowman Transportation v. Arkansas-Best Freight System,

et, GE a ee ee QUOD 66 Che os hips scdinsess 20

Burlington Truck Lines, Inc. v. United States, 371 U. S.

Pe ctw Deanne <ebe bah eee Rene ee Oke 17

Camp v. Pita, 411 U. &. 136 CID7S) .... ccccecccccess 28

Citizens to Preserve Overton Park v. Volpe, 401 U. S.

ee CUES v.00 kanes nekacneeccssneeeseses uous 17,19

Environmental Defense Fund, Inc. v. EPA, 465 F. 2d

ee Ge Gs ED 6 sb kos ces ondeunwmetes 13, 19, 23

Environmental Defense Fund, Inc. v. EPA, 510 F. 2d 1292

s Eee BR reo rrr er eT orTe 13

Environmental Defense Fund, Inc. v. Ruckelshaus, 439

A fF 8) Teh: eer 16, 17, 20

Great Lakes Screw Corp. v. NLRB, 409 F. 2d 375 (7th

- See rr re nr rer 23

Greater Boston Television Corp. v. FCC, 444 F. 2d 841

(D. C. Cir.), cert. denied, 403 U. S. 923 (1971) ....17,20

Hertz v. Woodman, 218 U.S. 205 (1910) ............ 19

Hess & Clark Div. of Rhodia, Inc. v. FDA, 495 F. 2d 975

a ar a Eb wuss babe ceheeadeeenkeukeas 23

Homan v. United States, 279 F. 2d 767 (8th Cir.), cert.

denied, 364 U. S. 866 (1960) ... 0... cccccccccces 18

Hotch v. United States, 212 F. 2d 280 (9th Cir. 1954) .. 26

iii

Industrial Union Dept., AFL-CIO v. Hodgson, 449 F. 2d

fe ae. ree 13

International Harvester Co. v. Ruckelshaus, 478 F. 2d 615

ee er a ee cae bade ees 16, 17, 23

Kennecott Copper Corp. v. EPA, 462 F. 2d 846 (D. C.

errr et reer rT eee Te Tee eee 20, 23

Portland Cement Ass’n v. Ruckelshaus, 486 F. 2d 375

(D. C. Cir. 1973), cert. denied, 417 U. S. 921 (1974)

ee ee re er et eee eer eee Tere eae 17, 20, 23

Reserve Mining Co. v. EPA, 514 F. 2d 492 (8th Cir.

PT ses ceed che enben de eRaseenns peg etekeent 13,14

Rodway v. U. S. Dept of Agriculture, 514 F. 2d 809 (D.C.

ee EE oe os 5 iil SED Ku CRONE ES VA FAN NO Oe 20, 22

SEC v. Chenery Corp., 332 U. S. 194 (1947) ........ 20

Sierra Club v. Morton, 405 U. S. 727 (1972) ........ 16

Society of the Plastics Indus., Inc. v. OSHA, 509 F. 2d

1301 (2d Cir.), cert. denied, 421 U. S.992 (1975) ... 13

South Terminal Corp. v. EPA, 504 F. 2d 646 (lst Cir.

EE iv s00 oi eu ds BRE eA OO NR TAbRdea eee en eebees 23

United States v. American-Foreign SS. Corp., 363 U. S.

ge ee a ny aera 18

United States ex rel. Robinson v. Johnston, 316 U. S.

er ee ey ee 18

Universal Camera Corp. v. NLRB, 340 U. S. 474 (1951) 17

Wagner Elec. Corp. v. Volpe, 466 F. 2d 1013 (3d Cir.

PE Pree eee rere TT aT TTI LTTE Tee 26

Statutes.

Administrative Procedure Act:

> Oe Gy: Oe os oes sce veseeuseee eee 10, 20, 29

Se Sey re i7

B'S Se > Pyreeretree Tt 15, 20

Clean Air Amendments of 1970:

Sec. 106, 42 U.S.C. § 16STO3 ... cc ccnccvcs 11

Sec. 02, @ U.S.C. § 1GSTRE 2. cee ceucens 11,12

Sec. 211 (c)(1), 42 U.S.C. § 1857f-6c(c) ....

owe oe ce bw etene) seen ke eee 3, 8,9, 11, 12, 15, 16

Miscellaneous.

116 Cong. Rec. Part 14, 19229-31, 32921 (June, 1970) 11, 17

Handler, A Rebuttal: The Need for a Sufficient Scientific

Base for Government Regulation, 43 Geo. Wash. L. Rev.

OBB CIDTS) sie. coccccccvcevevseessumeneee 15

The Random House Dictionary, The English Language

(99GB) nncvinvcveev cancenceseseee el 12

Webster’s Third New International Dictionary of the En-

dich Languages (IG71) ... .cevccceveceesvuaueuns 12

IN THE

Supreme Court of the Gnited States

OcToBER TERM, 1975

NALCO CHEMICAL COMPANY,

Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT.

Petitioner, Nalco Chemical Company, prays that a Writ of

Certiorari issue to review the opinions and judgment of the

United States Court of Appeals for the District of Columbia

entered in this case, en banc, on March 19, 1976.

OPINIONS BELOW.

The opinions and judgment of the Court of Appeals are re-

ported at 8 ERC 1785. Because of their extraordinary length,

they are filed in a separate, bound Appendix with this Court.*

* The majority and dissenting en banc opinions below are referred

to hereinafter as “Maj. Op. ........ ” and “Dis. Op. ........ es iT

refers to the Joint Appendix filed in the court below on July, 15,

ae! ” refers to the number assigned to documents

listed in the certified index to the record filed on January 29, 1974

— supplemented by respondent on March 28, 1974 and April 19,

1974.

Emphasis is supplied herein unless otherwise noted.

JURISDICTION.

The judgment of the Court of Appeals was entered on March

19, 1976. Issuance of the mandate has been stayed, pending

the filing of a petition for a Writ of Certiorari, by order of

the Court of Appeals.

The jurisdiction of this Court is invoked under 28 U. S. C.

§ 1254(1).

QUESTIONS PRESENTED.

1. Whether the Administrator of the Environmental Pro-

tection Agency has inherent discretion to limit the use of lead

additives in gasoline on the basis cf fear of an uncertain or

unknown harm, notwithstanding that the Clean Air Act author-

ized the Administrator to regulate only if the emission products

of such fuel additive “will endanger the public health or welfare”.

2: Whether judicial review of environmental regulations,

which involve highly technical areas, should be limited, and if

so, what is the correct standard of procedural and substantive

review of such regulations.

3. Whether the adoption of the final lead additive phase-

down regulations by the Administrator of the Environmental

Protection Agency was in violation of the Administrative Pro-

cedure Act and a clear error of judgment.

4. Whether the Environmental Protection Agency met the

requirements of the Administrative Procedure Act when it did

not provide adequate notice and opportunity to comment to the

public and interested persons on new medical and scientific

evidence which was substituted for prior evidence and became

the basis for its final regulations.

5. Whether the reviewing court may properly go outside

the administrative record and initiate after oral argument, an ex

parte investigation for the purpose of supplementing that record

to determine when the public and interested persons received

notice of material upon which the regulations were based.

STATUTES AND REGULATIONS INVOLVED.

The pertinent provisions of the Clean Air Act (42 U. S. C.

§§ 1857c-3, 1857f-1 and 1857f-6c), the Administrative Proce-

dure Act (5 U. S. C. §§ 553 and 706) and the regulations in-

volved (40 CFR § 80.1, 80.2(c), 80.20, 80.25 and 80.26)

are set forth in Appendix A, hereto.

STATEMENT OF THE CASE.

Chronology of the Regulations.

On January 30, 1971, within one month after the enactment

of the Clean Air Act Amendments, the Administratcr of the

Environmental Protection Agency (EPA) issued an advance

notice of proposed rulemaking to reduce the permissible lead

content of gasoline under Section 211(c)(1)(A) of the Act

(36 Fed. Reg. 1486). More than one year later, on February

23, 1972, the EPA published its first set of proposed regulations

(App. 23). This first set of regulations proposed a reduction in

the use of lead additives in gasoline over a four-year period

beginning January 1, 1974, based on EPA’s conclusion that:

“Airborne lead levels exceeding 2 ug per cubic meter. . .

are associated with a sufficient risk of adverse physiological

effects to constitute endangerment of the public health.”

(App. 23.)

This proposed rulemaking was accompanied by the EPA’s

first health justification document, “Health Hazards of Lead”

(App. 292) and a subsequent position paper, “Atmospheric

Lead and Public Health”, to bolster its conclusion as to the

alleged need for a 60-65% reduction in airborne lead (App.

276). Comments were invited for a 90-day period (37 Fed.

Reg. 11786-87). Within two months, EPA made corrections

and additions to the “Health Hazards of Lead” paper because of

“miscalculations” (App. 272).

Hearings were held on these regulations and numerous com-

ments and statements were submitted from the industrial,

medical, scientific and governmental communities which severely

criticized EPA’s medical and scientific justification for these

regulations (See, e.g., App. 2118, 2413, 2431, 2438, and

2481).

EPA then reevaluated its health justification, “changed it

substantially” (App. 2), and reproposed regulations on January

10, 1973 (App. 14).* The reproposed health regulations were

accompanied by another EPA health justification paper, en-

titled “EPA’s Position on the Health Effects of Airborne Lead”

(App. 158). As the majority opinion notes, EPA had com-

pletely “abandoned” its earlier “discredited” approach for esti-

mating the reduction in airborne lead necessary to protect

public health, by the time that the Second Health Document

was issued (Maj. Op. A-3).

The comment period for this second set of proposed regula-

tions closed on March 11, 1973. Despite the substantial changes

in EPA’s position, criticism from the scientific and medical com-

munities as well as other governmental agencies continued un-

abated (See, e.g., App. 2477, 2479 and 2494).

‘On October 28, 1973, while EPA was considering the com-

ments on the second proposed regulations, the Court of Appeals

for the District of Columbia Circuit issued a single-page order

directing the EPA Administrator to reach a final decision on the

matter within 30 days.**

On November 28, 1973, the final regulations were announced

and were promulgated on December 6, 1973 (App. 1). The final

* At the same time, the EPA issued final regulations requiring the

marketing of lead-free gasoline. These regulations (“the marketing

regulations”) were approved in Amoco Oil Co. v. EPA, 501 F. 2d

722 (D. C. Cir. 1974).

** National Resources Defense Council v. EPA, No. 72-2233

(D. C. Cir., Oct. 28, 1973). Petitioner herein was not a party to this

case. The order was entered on the motion of the plaintiff and was

unreported.

regulations were accompanied by still another health justification

document, this time entitled “Health Implications of Airborne

Lead” (App. 27). The regulations, as promulgated in the

Federal Register, are accompanied by a lengthy Preamble which

summarizes EPA support for its health position (App. 1-5).

No comment period was allowed on the final regulations.

Petitioner filed its petition to review these regulations on De-

cember 27, 1973, pursuant to Section 307 of the Clean Air

Act (42 U. S. C. § 1857h-5). On December 20, 1974, the

panel of the Court of Appeals which heard the petition, ordered

the regulations set aside in an 87-page opinion (with a 96-page

dissent) published on January 28, 1975 (7 ERC 1353).

“Because of the importance of the issues presented,” the Court of

Appeals for the District of Columbia granted EPA’s petition for

rehearing, set the case for argument en banc on May 30, 1975

and reversed the panel opinion in a 5 to 4 decision published on

March 19, 1976, with two concurring and two dissenting

opinions.

Background Facts

At the outset, it is important to recognize that lead occurs

naturally in the earth’s crust and atmosphere (App. 319) and is

a part of every living thing (App. 54). Lead is not harmful

per se (App. 2611) and in fact, it is now thought that lead

may be a necessary element for growth (Doc. 459).

Mere exposure to lead is not indicative of harm to health.

The absorption of lead without retention is not indicative of

harm, since it is undisputed that lead is continuously excreted by

the body, by means of known biological mechanisms and is

stored in bone, teeth and hair where it is biologically inert and

thus without harmful health effects (App. 324-25). In normal

circumstances, human beings achieve a steady state of lead

body levels and maintain this steady state with the rate of

output approximately equal to the rate of input (App. 326).

Dr. Pau! B. Hammond, Chairman of the Panel on Lead of the

National Academy of Sciences summarized this background:

“It is not a question of whether or not people have lead.

They all do. It is rather a question of how much lead they

have and how much is harmful. So far as adults are con-

cerned, the general population is exposed to far less lead

than are workers in battery factories and lead smelters who

remain in good health in spite of their high exposure as

compared to the general public.” (App. 2611.)

The principal source of lead to human beings, by far, is the

food and fluids of the normal diet—not the respiration of air-

borne lead (App. 1970, 1996-97). Even though there has been a

rise in the use of leaded gasoline—a 70% increase from

1959-1969 (App. 2427)—there has not been a corresponding

rise in the average concentrations of airborne lead in major

urban areas, as shown by the conclusion of the National

Academy of Science that with:

. the high degree of dispersion associated with the

venting of burned lead alkyls into the air. . . the average

lead content of the air over most major cities apparently

has not changed greatly over the last 15 years. The net

result is that correspondingly little change in the character

and magnitude of the effects of atmospheric lead on bio-

logic systems will likely occur for some years to come.

We are, in short, not dealing with a rapidly shifting scene

in this respect.” (App. 356-57.)

Lead compounds have been used as additives in gasoline for

over 50 years, for the purpose of increasing the octane or “anti-

knock” quality required by high compression engines. Increas-

ing the compression ratio in automobile engines adds to efficiency

and economy of operation, but the gasoline octane must be

increased accordingly. If lead cannot be used, then additional

“aromatics”, derived from crude oil itself, must be substituted.

The production of additional aromatics requires more severe

refining conditions and the use of substantial additional quanti-

ties of crude oil (App. 1414-15). Thus, these regulations will

inevitably result in the consumption of large quantities of ad-

ditional barrels of crude oil each year as well as imposing sub-

stantial financial requirements on refiners for construction of

new facilities and modifications of those now in existence.

REASONS FOR GRANTING THE WRIT.

I, The Lower Court Unjustifiably Attributed Inherent Dis-

cretion in the EPA to Regulate, Despite a Limited Con-

gressional Grant of Authority.

The majority opinion below concludes that in the area of the

environment and public health, EPA has inherent discretion

to regulate, with standards of agency rationality similar to the

standards used to review Congressional legislation. This inherent

discretion, according to the majority opinion, comes necessarily

into play because the regulation deals with the environment,

despite the specific language of the Congressional grant of

authority and despite the absence of a scientific or medical “data

base” for regulation. The opinion of the lower court will be

undoubtedly quoted for this proposition as long as it stands

unreviewed. However, if this is to be the law of environmental

regulation, it should be decided by this Court and not by the

lower court in a 5 to 4 decision.

The opening paragraph of the majority opinion presages its

holding that even in the absence of medical or scientific evi-

dence, the EPA may regulate:

“It is only recently that we have begun to appreciate the

danger posed by unregulated modification of the world

around us, and have created watchdog agencies whose task

it is to warn us, and protect us, when technological ‘ad-

vances’ present dangers unappreciated—or unrevealed—

by their supporters. . . . Necessarily, they must deal with

predictions and uncertainty, with developing evidence, with

conflicting evidence, and, sometimes, with little or no

evidence at all.” (Maj. Op. 6.)

The majority opinion after extensive discussion, repeats the

theme—EPA has inherent discretion to regulate:

“Questions involving the environment are particularly

prone to uncertainty. . . . How else can they act, given a

mandate to protect the public health but only a slight or

non-existent data base upon which to draw?” (Maj. Op.

46-47.)

To be sure, the majority opinion argued that they were not

allowing the EPA Administrator “to set policy on his own terms”

and that Congress did set policy guidelines (Maj. Op. 55). But

those guidelines are so broad that it matters very little whether

Congress attempted to specifically limit or condition the EPA’s

power. Once the majority assumed that the issue of the health

effects of lead was “on the frontiers of scientific knowledge”,

the EPA could act based on no more than a “fear of an un-

known harm” (Maj. Op. 56).

The dissent was well aware that the majority was enunciating

a different and lower standard for environmental regulation:

“From the pages of the court’s opinion there seeps the

theme that this is an environmental case; hence, the court

like the agency need not labor by the usual rules. We

recognize no such exemption for this or any other type

case... .” (Dis. Op. 50.)*

A. Threshold Determination.

In Section 211(c)(1)(A) of the Clean Air Act, Congress

authorized EPA to regulate gasoline additives only “if any

emission products of such fuel or fuel additive will endanger

the public health.” But the majority argues that instead of call-

ing for “the Administrator to make a threshold factual deter-

mination of endangerment”:

“[A] determination of endangerment to public health is

necessarily a question of policy that is to be based on an

assessment of risks and that should not be bound by either

the procedural or the substantive rigor proper for questions

of fact.” (Maj. Op. 46.)

* See also Dis. Op. 35.

----——- - - - S S -

However, as the dissent points out, the “question” of whether

the EPA may “assess risks” in regulating fuel additives is a

strawman (Dis. Op. 52). The issue is whether Congress required

the EPA to decide, based upon its expertise, that there is

a causal connection between lead additive emissions and an

endangerment to public health. As even the majority admits,

Congress set up “a legal mechanism by which the [medical]

evidence could be weighed in a more objective tribunal”

(Maj. Op. 12).*

The only prior decision dealing with this section of the Clean

Air Act (Amoco Oil Co. v. EPA, 501 F. 2d 722 (D. C. Cir.

1974)) dealt with Section 211(c)(1)(B) giving the EPA Ad-

ministrator authority to regulate fuel additives on other than a

health endangerment basis, “if emission products of such fuel

or fuel additive will impair to a significant degree” the perform-

ance of emissions control devices. The court held there that this

section requires a:

“. .. threshold determination whether or not to regulate a

particular fuel or additive. In effect, the provision estab-

lishes a rebuttable presumption that the Agency should

maintain a laissez faire posture with regard to fuel regula-

tion. . . . The findings are to show why regulation, as op-

posed to no regulation, is necessary or otherwise advisable.

These findings constitute a condition precedent to em-

barking upon the exercise of regulatory power.” (501 F.

2d at 736.)

The court went on to find that EPA had quasi-legislative powers

in deciding how to regulate.

However, in dealing with the companion provision giving the

Administrator power to regulate fuel additives “if any emissions

products or such fuel or fuel additive will endanger the public

health or welfare,” the majority argues that this section is “in-

herently” different. Unlike subsection (B), which is “highly

* In fact, Congress clearly believed that EPA should embark upon

a course of regulation “only with trepidation”, as the majority notes,

because such regulation would be “telling manufacturers how to make

their fuels.” (Maj. Op. 16, n. 14.) |

suitable to factual proof.” the “Section 211(c)(1)(A) threshold

determination .. . is inherently unlike that of its sister section”

and the question of endangerment “is a risk, and so must

be decided by assessment of risks as well as by proof of facts.”

(Maj. Op. 45.) Thus, the majority opinion, in attempting to

distinguish its interpretation in Amoco, falls back on unjustified

assumptions of “inherent” differences. *

The majority also concedes that Amoco held that Section 4

of the Administrative Procedure Act (5 U. S. C. § 553) neces-

sarily calls for a “factual threshold determination” in connection

with subsection (B) (“if ... will impair”) (Maj. Op. 45-46).

Why does not the parallel subsection (A) (“if . . . will

endanger”) call for such a threshold determination?

B. Legislative History.

The majority attempted to find support in the legislative his-

tory, but all that exists points to the opposite conclusion. The

majority argues that an early House bill called for a “specific

findings” under the ‘will endanger’ standard (Maj. Op. 38),

and that the deletion of that findings requirement was:

“a recognition by Congress that a determination of en-

dangerment to public health is necessarily a question of

policy that is to be based on an assessment of risks and

that should not be bound by either the procedural or the

substantive rigor proper for questions of fact.” (Maj. Op.

46.)

This assertion is unsound. If the statute as first written called

for “specific findings,” the “will endanger” standard could not

“necessarily be a question of policy. How could it inherently

become so, if the “specific findings” requirement were removed?

The fact is that the House bill never did call for * ‘specific find-

* The only apparent ground for such an argument, is that a deter-

mination of “impairment” is less complex scientifically than a deter-

mination of “endangerment”. The absence of legislative history to

support such a reading of parallel sections, makes it merely an opinion

hased on the clarity of hindsight.

ings” in connection with endangerment.* The legislative history

shows that both the House and Senate intended that if fuel

additives were to be regulated either because of impairment to

an emission control device or endangerment of the public health,

a factually based determination must be the basis.**

C. Comparison with Other Sections.

The majority opinion engages in a lengthy comparison of

Section 211(c)(1)(A) with Sections 108 and 202 of the Clean

Air Act, in order to bolster ‘ts construction of Section 211

(Maj. Op. 22-28). This comparison results in interpretations

of these sections which makes determination of EPA’s powers

under the Clean Air Act ambiguous at best.

The majority opinion argues that Section 108 of the Act,

relating to the EPA Administrator's power to set air quality

criteria for pollutants which “in his judgment” have an ad-

verse effect on public health, “requires proof of demonstrable

harm” (Maj. Op. 23-24). This, of course, ignores the fact that

Congress expressly left this decision in Section 108 to the “judg-

ment” of the EPA Administrator.

Section 202 grants the Administrator authority to prescribe:

. Standards applicable to the emission of any air pol-

lutant from any class or classes of new motor vehicles . . .

* As pointed out in the prior panel opinion 7 ERC at 1360,

what the House bill did call for were “specific findings” in con-

nection with manner of regulation if EPA had first determined

that emission products of a fuel additive “will endanger” the

public health or welfare or “will impair to a significant degree” the

performance of emission control devices. Further, the majority opin-

ion recognizes that its “specific findings” argument is of “doubtful”

validity (Maj. Op. 39, n. 38).

** Representative Staggers of the Interstate and Foreign Com-

merce Committee: “. . . if he has the facts, and he has proven thus by

facts, that they are a danger”. Representative Rogers (House Manager

of the Bill): “whenever the facts show that . . . and additive .

adversely affects the health or prevents the emission standards from

being met”. Senator Baker (ranking minority memh «r of the Confer-

ence Committee): “when he finds that. . emissions . . . endanger

the public health”. (116 Cong. Rec. 19229-30, 19231, 32921)

which in his judgment causes or contributes to, or is likely

to cause or contribute to, air pollution which endangers the

public health or welfare”.

As to the portion of Section 202 dealing with automobile emis-

sions which “in his judgment” cause or contribute or are “likely”

to cause air pollution, the majority states that the standard is

“more lenient than Section 211” (Maj. Op. 26-27). However,

as to the phrase “air pollution which endangers the public health

or welfare”, the majority argues that “regulation may not be

premised on a threshold determination of likely danger; rather

regulation must be premised on a determination of danger.”

Thus, the majority concludes that: “This is essentially the same

finding of endangerment as under Section 211”; and that “in

making the threshold determination of danger both sections

[202 and 211] are the same” (Maj. Op. 26-27).

Thus, the majority agrees that under 211 a “threshold de-

termination” of danger must be made, which cannot be satisfied

by a finding of “likely danger.”* This contradicts its conclusion

that the “will endanger” requirement is met by something less

than “likely danger” and that even “fear of uncertain or un-

known harm” is enough (Maj. Op. 56).

D. Generalized Attribution of Discretion.

The majority seeks to encompass Section 211 in its broad

category of questions involving the environment, to justify its

claim of wide grant of discretion to EPA:

“Never before have massive quantities of asbestiform tail-

ings been spewed into the water we drink. Never before

have our industrial workers been occupationally exposed

to vinyl chloride or to asbestos dust. Never before has

the food we eat been permeated with DDT or the pesticides

aldrin and dieldrin. And never before have hundreds of

* The dictionary synonyms for “likely” include “in all probability,

probably” (Webster’s Third New International Dictionary of the

English Language 1971); “reasonably to be believed or expected”

(The Random House Dictionary, The English Language, 1966).

thousands of tons of lead emissions been disgorged annually

into the air we breathe”. (Maj. Op. 47.)

In support of this hortatory attempt to measure all environmental

matters by a single standard, despite the varied approaches

authorized by Congress, the majority cites several other lower

court decisions.* The majority suggests that the same standard

should be applied in all such cases to “avoid environmental

catastrophe” (Maj. Op. 48).

This attempt to blur the specific questions involved in con-

nection with the lead regulation is unjustified. First, all of the

cases cited by the majority deal with carcinogens as to which the

lower court itself has said that “the concept of a threshold

exposure level has no practical significance where carcinogens

are concerned.”** (Environmental Defense Fund v. EPA (Shell),

510 F. 2d 1292, 1298). The Society of Plastics Industry and

Hodgson decisions did not question whether the carcinogen

should be regulated, but only the manner of regulation. In both

cases, the Secretary of Labor was required by the law to establish

safe levels as a maximum for exposure. In Environmental

Defense Fund v. EPA, supra, dealing with the pesticides

aldrin/dieldrin, the court noted that not only was broad discre-

tion granted on the Administrator, but the statute on its terms

“places the burden of establishing the safety of a product on...

the applicant” (510 F. 2d at 1297).

The Reserve Mining decision does not stand for the proposi-

tion that regulation in the environmental field can be based on a

“non-existent data base.” Instead, the Eighth Circuit Court of

* Reserve Mining Co. v. EPA, $14 F. 2d 492 (Sth Cir. 1975);

The Society of the Plastics Industry, Inc. v. OSHA, 509 F. 2d 1301

(2d Cir.) cert. denied, 421 U. S. 992 (1975); Industrial Union Dept.,

AFL-CIO v. Hodgson, 449 F. 2d 467 (D. C. Cir. 1974); Environ-

mental Defense Fund v. EPA (Coahoma), 465 F. 2d 528 (D. C.

Cir. 1972); and Environmental Defense Fund v. EPA (Shell), 510

F. 2d 1292 (D. C. Cir. 1975).

** In Reserve Mining, the National Academy of Sciences had em-

phasized that there was no known safe level of the carcinogenic

asbestos fibers (514 F. 2d at 508).

Appeals weighed the existing health evidence as to the car-

cinogenicity of the asbestos tailings in the context of a court

of equity determining the need for abatement because:

“As will be evident from the discussion that follows, we

adhere to our preliminary assessment that the evidence is

insufficient to support the kind of demonstrable danger to

the public health that would justify the immediate closing

of Reserve’s operations. We now address the basic question

of whether the discharges pose any risk to public health

and, if so, whether the risk is one which is legally cogni-

zable.” (514 F. 2d at 507.)

Throughout the majority opinion there runs the strain that

the question of the health effects of environmental lead is on

“the frontiers of scientific knowledge” and therefore EPA may

rely on “guesstimates” and “theoretical extrapolations” and

“speculation” (Maj. Op. 46-47). However, lead has been used

as an additive in gasoline for over 50 years and its health effects

have been studied for as long. The subject of the health effects

of lead has received massive attention and has been a continu-

ing source of study for decades.*

The nature of scientific inquiry in the field of environmental

health is identical to that in other scientific fields, irrespective

of “the problems faced by EPA in deciding whether lead auto-

motive emissions pose a threat .. .” (Maj. Op. 48). As the

President of the National Academy of Sciences recently stated

in an article referred to by the majority:

“Government regulation of technical products and proces-

ses must rest on a rational and sufficient scientific base.

.. . Government regulations or programs intended to com-

bat those hazards must, as a minimum, rest on detailed

appraisal of the nature and magnitude of those risks, of

the monetary and other costs of measures intended to

reduce the severity of each risk, and of the nature and mag-

* In fact, the number of studies involved in this area is so great

that EPA recently published an annotated bibliography on the “Bio-

logical Aspects of Lead” which lists over 4,100 studies during the

decade prior to 1964. (See Addendum I to Nalco Supp. Br.).

nitude of the benefits involved in the process or product

under consideration.” Handler, A Rebuttal: The Need for

a Sufficient Scientific Base for Government Regulation, 43

Geo. Wash. L. Rev. 808, 812 (1975).

Characterizing this matter as “environmental”, as justi-

fication for unbridled agency discretion is simply a subtle form

of prejudgment of the issues, as reflected in the majority remark

that: “For years the lead anti-knock industry has refused to

accept the developing evidence that lead emissions contribute

significantly to the total human lead body burden” (Maj. Op.

12). But Congress did not intend regulation on the basis of a

“non-existent data base”. If that were the intent there would

have been no need to qualify the EPA Administrator’s authority

by the “will endanger” language of Section 211(c)(1)(A).

Il. The Lower Court Unjustifiably Limited the Scope of Its

Review Because This Case Involved Environmental

Regulations.

A. The Conflict Within the Lower Court as to Scope of Review.

The five divergent opinions in the lower court raise a substan-

tial issue under the Administrative Procedure Act (5 U. S. C.

§ 706) as to the thoroughness of the court’s review of highly

technical environmental regulations.

The majority essentially argues that EPA “should not be bound

by either the procedural or the substantive rigor proper for ques-

tions of fact” (Maj. Op. 46).

The opinion of Judge Bazelon (joined in by Judge Mc-

Gowan) while concurring in the construction of Section 211,

asserts that “I cannot agree that this automatically relieves the

Administrator’s decision from the ‘procedural . . . rigor proper for

questions of fact’.” (Bazelon Op. 1). On the other hand, Judge

Bazelon argues that a lower standard of substantive review must

apply “. . . in cases of great technological complexity,” and the

court should not “scrutinize the technical merits of each deci-

sion” but rather “establish a decision-making process that assures

a reasoned decision that can be held up to the scrutiny of the

scientific community and the public” (/d.).

Judge Leventhal reads the other concurring judges as advo-

cating “engaging in no substantive review at all, whenever the

substantive issues at stake involve technical matters that the

judges involved consider beyond their individual technical com-

petence,” and that this is in effect “a signal to judges to abstain

from any substantive review” (Leventhal Op. 1).

The dissent asserts that: “From the pages of the Court's

opinion there seeps the theme that this is an environmental case;

hence the Court like the agency need not labor by the usual

rules. We recognize no such exemption for this or any other type

case; certainly Congress did not give it to us” (Dis. Op. 50).

The concurring dissent, although agreeing with the majority

that Section 211(c)(1)(A) of the Clean Air Act embodies

“strong precautionary powers,” does not agree with its opinion

that these powers can be exercised on a “nonexistent data base”

(MacKinnon Op. 2-3).

The concept that environmental cases represent a “new era”

is not unique. (See International Harvester Co. v. Ruckelshaus,

478 F. 2d at 615, 650-51 (D. C. Cir. 1973) concurring opinion.

C. J. Bazelon.)* However, it has been suggested that the im-

portance and impact of environmental legislation on public

health and the economy, calls for more supervision by the Court,

not less. Environmental Defense Fund v. Ruckelskaus, 439 F.

2d 584, 597-98 (D. C. Cir. 1971), pointed out that the super-

visory power of the court “has come into more frequent use”

and that “courts are increasingly asked to review administrative

action that touches on fundamental personal interests in life,

health and liberty . . . To protect these interests from adminis-

trative arbitrariness, it is necessary, but not sufficient, to insist

* See also Environmental Defense Fund v. Ruckelshaus, 439 F. 2d

584, 597 (D. C. Cir. 1971); Sierra Club v. Morton, 405 U. S. 727,

755 (1972) (Dissent).

on strict judicial scrutiny of administrative action . . .” (Chief

Judge Bazelon). See also, Portland Cement Association v.

Ruckelshaus, 486 F. 2d 375, 393 (D. C. Cir. 1973), cert.

denied, 417 U. S. 921 (1974).

Indeed, the increasing impact of environmental regulations

would appear to dictate a continued scrutiny by reviewing

courts, to prevent administrative action from becoming, as this

Court said in Burlington Truck Lines v. United States, 371

U. S. 156, 167 (1962) “a monster which rules with no prac-

tical limits on its discretion.”* The need for review, though

approached “with utmost diffidence” because of “technical

complexities”, is apparent (International Harvester v. Ruckel-

shaus, 478 F. 2d at 641).**

The need for a resolution of the issue of the scope of review

is illustrated by the variety of views expressed by Chief Judge

Bazelon who, in Environmental Defense Fund v. Ruckelshaus,

439 F. 2d at 597-98, called for an increase in the rigor of review

of environmental regulations, and in /nternational Harvester v.

Ruckelshaus, 487 F. 2d at 651 suggested that this did not mean

the courts would “dig deeper”, but now suggests a restriction on

substantive review akin to the exclusion of 5 U. S. C. § 701 (a)

(2) for “agency action . . . committed to agency discretion by

law”, which as this Court said in Citizens to Preserve Overton

* There is no reason to assume that because the subject matter is

the environment, that agency personnel will somehow be free of all

possibility of “impermissible whim, improper influence, misplaced

zeal . . . the clutch of unconscious preference and irrelevant prejudice”

Greater Boston Television Corp. v. FCC (D. C. Cir. 1971), 444

F. 2d 841, 852 (D. C. Cir.), cert. denied, 403 U. S. 923 (1971).

** Congress expected that interested parties taking issue with the

actions of the Administrator would have the benefit “of an appeal

to the court from [under] the Administrative Procedure Act” and if

it was felt “that there were not the facts and that the ruling was

wrong, the court would have the final decision” (116 Cong. Rec.

(Part 14) at 19230-31 House) (10 June 1970). See Universal

Camera Corp. v. NLRB, 340 U. S. 474 (1951), holding that in

determining scope of review the court must consider both the Ad-

ministrative Procedure Act and Congressional intent in adopting the

regulatory legislation.

Park v. Volpe, 401 U. S. 402, 410 (1971), “is a very narrow

exception”.

The conflict within the circuit cannot be decided here by a

rehearing en banc (U. S. ex rel. Robinson v. Johnston, 316

U. S. 649 (1942)), for a rehearing has already been held.

Thus, the purpose of en banc hearings, to avoid “conflicts

within” and promote “finality of decision” in a court of appeals

and to “determine the major doctrinal trends of the future” for

the circuit cannot be achieved. United States v. American-For-

eign SS. Corp., 363 U. S. 685, 689-90 (1960). Unless this

Court reviews, there wiil inevitably be conflicting decisions

within the circuit depending upon the composition of the par-

ticular panels.* This is particularly important because the Court

of Appeals for the District of Columbia is the sole venue for

review under several key sections of the Clean Air Act whereby

Congress intended to avoid the very problem of conflicting de-

cisions which arises here. Also, because of this circuit’s leader-

ship in this area, conflicts within the circuit will no doubt

engender conflicts among other circuits, depending upon which

of the several views of the lower court are followed.**

Further, review of this issue is necessary because the law of

the case may not have been decided below. Assuming that

Judges Bazelon and McGowan did not engage in any substan-

tive review, consistent with their opinion—and if their opinion

as to the proper scope of review is wrong—then in fact there

was no majority and only three of the nine active judges have

* Thus 3 judges assert a reduced rigor of both procedural and

substantive review in environmental cases; 2 judges oppose any

reduction in procedural rigor but would substantially abdicate all

substantive review; and the 4 dissenting judges assert that the same

procedural and substantive rigor applies as in other cases.

** While decisions as to the law rendered in one circuit are not

binding in other circuits, in the interest of uniformity such decisions

should be followed unless the other circuit is convinced that the

decision is clearly wrong. E.g., Homan v. United States, 279 F. 2d

767, 773 (8th Cir.), cert. denied, 364 U.S. 866 (1960). In this

instance, other circuits would have a variety of choices.

“affirmed” the regulation.* The impact of the lead phasedown

regulation on the nation’s future and economy is too important,

and the controversy over its validity too substantial, to let this

regulation stand on such a hybrid vote.

'B. The Record Does Not Support the Regulation and Its

Promulgation Constitutes a Clear Error of Judgment.

One of the most difficult issues, as refiected in more than

a hundred pages of opinion in the court below, is whether

EPA here committed a “clear error of judgment” when it

determined to regulate lead additives.** In order to justify the

regulation, EPA must provide a record for the reviewing court

which is of sufficient completeness as to the factors considered

and reasons for regulation that the Court can, through a “search-

ing and substantial inquiry”, satisfy itself that the decision was

“based on a consideration of the relevant factors.” Citizens to

Preserve Overton Park v. Volpe, supra, 401 U. S. at 415. As

the court below stated in Environmental Defense Fund v. En-

vironmental Protection Agency, 465 F. 2d 528, 540-41 (D. C.

Cir. 1972):

“We cannot discharge our role adequately unless we

hold EPA to a high standard of articulation . . . The im-

portance and difficulty of subject matter entail special

responsibilities when the EPA undertakes to explain and

defend its actions in court.”

* It has been held that in case of an evenly divided court, an

affirmance creates no legal precedent since the “principles of law

involved” were not agreed to by a majority of the court, but that the

affirmance is “a determination and adjudication of the matter

adjudged,” as between the parties (Hertz v. Woodman, 218 U. S.

205, 213-14 (1910)). In this case not only is there no majority as

to principles of law, but we believe it may be an open question as

to whether there has been an affirmance even as between the parties.

** The majority opinion contains an extensive footnote [Maj. Op.

pp. 69-71 fn. 74] which indicates uncertainty as to the meaning of

“clear error of judgment” as enunciated by this Court in Citizens to

Preserve Overton Park v. Volpe, 401 U. S. 402 (1971). The 7

of views below as to the scope of review and circumstances whic

would require the setting aside or remand of the regulation here, is

evidence of that uncertainty.

Also in Greaier Boston Television Corp. v. FCC, 444 F. 2d

841, 852 (D. C. Cir. 1970), the same court held:

“The function of the court is to assure that the agency

has given reasoned consideration to all of the material facts

and issues. This calls for insistence that the agency articu-

late with a reasonable clarity its reasons for decision, and

identify the significance of the crucial facts. . . .”*

If an administrative agency has not complied with the notice

provisions of the Administrative Procedure Act (5 U. S. C.

§ 553) so that the reviewing court has the benefit of comments

by interested parties, and the agency’s response, the reviewing

court does not have the “whole record” which it is required to

review under § 706. See Rodway v. U. S. Dept. of Agriculture,

514 F. 2d 809, 817 (D. C. Cir. 1975); Portland Cement As-

sociation Vv. Ruckelshaus, 486 F. 2d 375, 400 (D. C. Cir.

1973), cert. denied, 417 U. S. 921 (1974); and Greater Boston

Television Corp. v. FCC, supra, 444 F. 2d at 850 (D. C.

Cir. 1970).

This Court has held: “We may not supply a reasoned basis

for the agency’s action that the agency itself has not “given.”

Bowman Transportation v. Arkansas-Best Freight System, Inc.,

419 U. S. 281, 286 (1974). The court “must judge the

propriety of such [administrative] action solely by the grounds

invoked by the agency. If those grounds are inadequate or

improper. the court is powerless to affirm the administrative

action by what it considers to be a more adequate or proper

basis.” Securities Comm'n v. Chenery Corp., 332 U. S. 194, 196

(1947).

The following are illustrations of the lack of EPA reasoned

decision-making here that require the regulation be set aside

as a clear error of judgment or, at the least, that it be remanded

to the EPA.

* See also EDF v. Ruckelshaus, 439 F. 2d 584, 597 (D. C. Cir.

1971), and Kennecott Copper Corp. v. EPA, 462 F. 2d 846 (D. C.

Cir. 1972).

1. As the dissent points out, to permit its conclusion that

there is an over-exposure to lead in the general adult population,

EPA rejected several major studies dealing with blood lead

levels in adults (some partially sponsored by EPA itself) show-

ing the absence of excessive blood lead in urban adults, on the

ground that the studies contained the methodological flaws of no

measurement of lead intake from sources other than airborne

lead (Dis. Op. 68-74). Yet EPA relied on two older epidemio-

logical studies, which show a small percentage of slightly “ex-

cessive” blood lead levels, despite the fact that those studies are

subject to the same alleged imperfect methodology. There is

articulation of the reasons for this picking and choosing.

The majority sought to supply an explanation for the EPA

by asserting that the amount of intake of lead from dictary

sources might well be assumed to be constant within particular

metropolitan areas but assumed to vary between different

areas (Maj. Op. 85-86).* As the concurring opinion pointed

out, this may only be a “homespun scientific aphorism” weil

beyond the competency of the majority to judge (Bazelon

Op. 3).

2. The other basis for the EPA’s claim of “significant risk

of harm” is the alleged contribution of automobile lead emis-

sions to blood lead levels in urban children through childhood

ingestion of lead-laden dirt. The EPA however, admitted that

lead"in paint is “the primary cause of clinical lead poisoning in

children” (38 Fed. Reg. 33736), and its conclusion as to the

significance of the contribution of automobile lead emissions is

put forward solely as an unproven “hypothesis” (Dis. Op.

79-80). The majority asserts that in any event EPA made this

hypothesis only “a secondary basis for the regulations” and

therefore placed “only limited reliance on it” (Maj. Op. 90, 95).

* As the dissent argued, not only is this explanation a post-hoc

rationalization by the court, but it is illogical on its face, since there

is no reason to believe that dietary sources of lead would be any

more uniform as “between Scarsdale and Harlem”, than as between

“greater Philadelphia” and “greater New York” (Dis. Op. 77).

In fact, EPA’s own scientists, in commenting upon the Third

Health Document stated that: “we should like to emphasize that

none of the studies cited directly implicated lead from automo-

tive exhausts as being responsible for the harming of any human

being” (App. 1057; Dis. Op. 82).

3. Another clear error of judgment by the EPA is the sub-

stantial reliance on the new studies as the basis for the final

regulation without adequate notice and opportunity for comment

(See infra pp. 22-25). This, in and of itself makes the adoption

of the regulation “arbitrary, capricious, and an abuse of dis-

cretion”. Rodway v. United States Dept. of Agriculture, supra,

514 F. 2d at 817.

lil. The Regulation Should Be Set Aside or Remanded to the

EPA Because of Failure to Provide Meaningful Oppor-

tunity for Comment.

From the outset, one of the principal issues before the lower

court involved the lack of meaningful opportunity afforded to in-

terested parties t.. comment on the scientific studies and “private

communications” which formed, in substantial part, the basis

for the final regulations (See, Nalco Main Br. 5, 17-18, 22-24

and 31; and Nalco Supp. Br. 44). Now the en banc opinions of

the lower court have created a related question: whether the

reviewing court could properly go outside the administrative

record, on an ex parte basis after oral argument, and attempt to

“reconstruct” the chronology of public notice.

Both issues may have resulted from the rush to regulate

which occurred here in part because of the one-page order of

“the Court of Appeals on October 28, 1973.* But this order could

* As Judge MacKinnon noted in his concurring dissent:

“This complex and lengthy lawsuit was foreordained when, on

October 29, 1973, a panel of this court directed the Adminis-

trator of the Environmental Protection Agency to reach a final

decision within 30 days . . . Although the proposed rulemaking

had then been in progress for nearly three years, it was patently

(Continued on next page)

not alter the need for scrupulous attention to fundamentally

fair procedures. The order did not mandate that the EPA

jettison its prior medical and scientific bases and rely materially

on medical evidence which was never brought to the attention of

the public for meaningful comment.

As the Court of Appeals has held on numerous occasions, in

complex administrative decision-making, EPA must be held

to a high standard of articulation and fairness of procedure in

order for the reviewing court to properly function. In Portland

Cement Association Vv. Ruckelshaus, supra, 468 F. 2d at 393

the court held that:

“It is not consonant with the purpose of a rulemaking

proceeding to promulgate rules on the basis of inadequate

data, or on data that [to a] critical degree is known only to

the agency.”

“What counts is the reality of an opportunity to submit an

effective presentation. . . .” Walter Holm Co. v. Hardin, 449 F.

2d 1009, 1016 (D. C. Cir. 1971).* The majority did not require

the agency to adhere to these principles in this case.

The Third Health Document which was issued by the EPA

simultaneous with the final regulations, was described by the

EPA as “a presentation of the pertinent evidence upon which

a decision could be made as to whether or not there is a

health justification to regulate lead in gasoline” (App. 30).

unrealistic to believe that the agency could sift through its ac-

cumulated data, afford the public and other agencies an op-

portunity to review any evidence contributed since the end of

the last comment period on March 11, 1973, reach a proper

decision based on all the evidence and draft the complicated

regulations within the required 30 days.” (MacKinnon Op. 1.)

* See also Chief Judge Bazelon concurring in /nternational Har-

vester Co. V EPA, 478 F. 2d 615, 651 (D. C. Cir. 1973); Hess &

Clark v. FDA, 495 F. 2d 975, 990 n. 45 (D. C. Cir. 1974); En-

vironmental Defense Fund v. EPA, 465 F. 2d 528, .... (D.C. Cir.

1972), and Kennecott Copper Corp. v. EPA, 462 F. 2d 846, 850

(D. C. Cir. 1972). Other circuit courts of appeals agree: South

Terminal Corp. v. EPA, 504 F. 2d 646, 665 (1st Cir. 1974);

Great Lakes Screw Corp. v. NLRB, 409 F. 2d 375, 379 (7th Cir.

1969); and Austin v. Jackson, 353 F. 2d 910, 911 (4th Cir. 1965).

The “evidence” on which the EPA Administrator actually re-

lied in support of the final decision to regulate, was discussed

in the extensive Preamble to the regulations (App. 5; Dis. Op.

A-1 to A-14). The Preamble made no attempt to defend the

earlier studies relied on in prior Health Documents, but instead

“weighed against these criticisms, [new] studies which have

shown that airborne lead does contribute significantly to lead

exposure in the general population” (App. 3).

As the basis for the final regulations, the EPA Administra-

tor discusses six studies relating to airborne lead as an endanger-

ment to health of adults* and in the Preamble the EPA dis-

cusses these six studies—and only these six studies (App. 3-4).

Thus, these studies form the principal, if not complete, EPA

basis for the regulations.

For the second aspect of its health justification (lead in dirt

contributing to childhood iead poisoning), EPA again relies

almost entirely on new studies and “private communications”:

two Newark studies; and studies from Chicago, Philadelphia

and Rochester.** As the dissent points out, these studies were

not only referred to in the “New Information” section of the

Presmble, but were also fully discussed in the EPA Adminis-

trator’s summary of information upon which he relied (Dis. Op.

30). The majority opinion’s argument that these studies “play

no role in the Administrator’s decision to regulate” (Maj. Op.

107) is incredible: The majority opinion itself. which dis-

cusses the “evidence tving children to leaded dust”, discusses

only five studies. three of which are the new studies referred to

above (Maj. Op. B-1 et seq.).***

* Two pilot lead isotope studies (App. 678 and 704) “an un-

published study in Japan” (App. 1092); Chamber studies (App.

596 and 391); the Seven Cities Study re-analysis (Doc. 228); and

the Daines Study (App. 466).

** See, App. 5, 138, 140, 662, 718, 738 and 967.

*** That these studies are crucial to the EPA’s dustfail

“hypothesis” is further evidence by EPA’s statement in the Third

Health Document that:

“Studies from Philadelphia, Chicago and Newark discussed

above provide persuasive evidence to strongly suggest that

(Continued on next page)

Thus, these studies are not simply makeweight for the EPA but

serve as a fundamental basis for the second part of the EPA’s

health justification basis for the regulations.

EPA admitted that the reproposal of the regulations on

January 10, 1973 occurred not only because the EPA’s basis for

the reduction was “substantially revised,” but because its

basis “had not been available for review by the scientific com-

munity” (App. 29). Yet, in November, 1973, the EPA was

willing to propdse final regulations when the new basis for those

regulations had not been available for scientific scrutiny. The

opinions discuss, in detail, when these new studies may have

become available for comment (Maj. Op. pp. 101 to 106;

Dis. Op. pp. 27 to 29). Several of these studies may have

become “available” for the first time at the Conference on Low

Lead Toxicity on October 1-2, 1973 in the month prior to the

promulgation of the final regulations (Maj. Op. 101; Dis.

Op. 25). However, even in November, 1973 when the EPA’s

Third Health Document was completed, EPA admitted that:

“A detailed evaluation of all presentations at the conference is

beyond the scope of the [Third Health] document” (App. 31).

Other new material relied on had not even been published at the

time the regulations were promulgated and were cither in draft

form, “in press” or simply unavailable “private communica-

tions”.*

——— peed

sources of lead other than paint, including that resulting from

the presence of lead in gasoline, play an important role in

childhood lead exposure.” (App. 130.)

“The “unpublished Japanese study”, second Newark study,

the so-called “Chicago Study” which was a “personal communication

from Coordinator of the Chicago Lead Poisoning Program to Dr.

J. S. Lin-Fu” (App. 140) and “personal communication from Phila-

delphia Dept. of Public Health” (App. 138).

The majority opinion argued that petitioner Nalco was able to

comment upon some of the newly disclosed bases for the regulations

as evidenced by petitioner’s “extensive comments” on these new

studies (Maj. Op. 102, n. 106). These “extensive” comments on an

EPA tentative draft consisted of all of three pages in a 54 page

document (Doc. 821, pp. 7-9). Further, these comments could not

(Continued on next page)

To discern the dates on which some of these drafts and new

studies became “available” the lower court relied upon a series

of unsupported and unsworn assertions made by EPA counsel

in letters sent to the Court of Appeals after the en banc argu-

ment. The majority mistakenly assumed that counsel for peti-

tioner was kept informed of these 2x parte communications,

and that the “facts” asserted in these letters were not dis-

puted and therefore usable by the court.* That assumption is

incorrect:

(a) Counsel for petitioner did not receive the letter of

September 26, 1975 (see Appendix B., B2-4, hereto), until the

next week, when it was sent to counsel because counsel for

petitioner had learned that such a letter had been sent and

specifically requested a copy.

(b) Counsel for petitioner learned of the October 2, 1975

letter for the first time upon reading the en banc opinions of the

court below. This letter was never sent to petitioner’s counsel

as shown by the face of the letter which does not bear any certif-

icate of service or carbon copies to petitioner’s counsel (see

Appendix B., B8, hereto).

to the Court of Appeals dated September 22, 1975. This letter

was also not sent to counsel for petitioner (Appendix B., B1,

hereto).

—— —_— -- See

have been received, if mailed to the EPA, more than one week prior

to final announcement of the regulations and EPA’s 117 page sup-

porting document. The fact that one interested party may have ap-

preciated that the EPA planned to rely substantially on new, un-

commented upon material, is not relevant to the issue of the lack

of opportunity for meaningful public comment to governmental

agencies concerned, with the protection of the public health. See:

Walter Holm & Co. v. Hardin, 449 F. 2d 1009, 1016 (D. C. Cir.

1971); Wagner Electric Corp. v. Volpe, 466 F. 2d 1013, 1019 (3d

Cir. 1972); Hotch v. United States, 212 F. 2d 280, 282 (9th Cir.

1954).

* “Copies of these letters were sent by EPA to counsel for all

parties to this litigation. No party commented on either letter.” (Maj.

Op. 101, n. 104.)

(d) When counsel for petitioner requested information as to

documents which had been sent to the lower court, counsel for

EPA sent a letter dated October 15, 1975 (Appendix B., B9-11,

hereto) which did not disclose the existence of the October 2,

1975 letter but merely enclosed a copy of a partial list of docu-

ments sent to the lower court.

Thus, the fact that a complaint was not made by “able and

experienced counsel for petitioners” (Maj. Op. 101), is hardly

relevant, since it was impossible for counsel to complain about

a situation about which it was uninformed.

Even this attempt to supplement the record failed to “disclose

when each piece of new information is received and when and

how it was made available for comment” (Bazelon Op. 5).

For example, the September 26, 1975 letter from EPA

counsel to the lower court said as to the first isotope study

(Doc. 113) that “the files of the Office of General Counsel! . . .

indicate that the abstracts were sent . . . to the public file on

October 4, 1973” (Appendix B., B3, hereto). EPA counsel

apparently did not know when they were actually placed in the

files to be theoretically “available” to whomever might be can-

vassing through the “public file”. This letter also states that the

second isotope study was “sent to the Office of the Gener!

Counsel on August 6, 1973 for transmittal to . . . the public

file.” The letter further asserts, without record support, that the

Japanese study “was sent to the Office of General Counsel on

July 22. 1973 for transmittal . . . to the public file”. As to each

assertion there is no indication when the documents were

actually transmitted to and placed in the “public file”.

The letter of EPA counsel to the clerk of the lower court

dated September 22, 1973 refers to a court inquiry as to

“docket records”, possibly questioning whether there are any

records of the actual date of deposit of materials in the public

information file (Appendix B., B1, hereto). Counsel for peti-

tioner is still not privy to these communications.

Finally, the October 2, 1975 letter, enclosing a report on

“preliminary results of the first isotope study” says, “The letter

was filed and indexed with the public comments under ‘Califor-

nia University’ and I overlooked it before” (Appendix B., B8,

hereto). With such a filing system, confusing to EPA’s own

counsel, how can it appropriately be suggested that petitioner

was “on notice” of everything which might be deposited, at

some time or other, in the EPA public information files?*

Two of the concurring judges (Judges Bazelon and

McGowan) noted, “the failure of the record to clearly disclose

the procedural steps followed by EPA,” stating that the Court

was forced to “reconstruct these steps by inferences and sur-

mise.” Thus the concurring judges concluded that: “Ordinarily,

.. . I think a record which so burdens judicial review would

require remand for clarification”, but in this case the court chose

not to do so (Bazelon Op. 4-5).

The action of the reviewing court here goes well beyond the

power of an appellate court and is in direct conflict with deci-

sions of this Court. If the record is insufficient or even unclear

on such a crucial issue as the opportunity to comment, the

action must be remanded to provide such an opportunity. In

Camp V. Pitts, 411 U. S. 138 (1973) (per curiam), this Court

dealt with a similar question where the case presented a “nar-

row, but substantial, question with respect to the proper proce-

dure to be followed when a reviewing court determines that an

administrative agency’s stated justification for informal action

does not provide an adequate basis for judicial review.” (411

U. S. at 138.) The Court held that in applying the “arbitrary

and capricious” test:

* In the EPA counsel’s letter of October 15, 1975, responding to

petitioner’s counsel’s telephone inquiry, EPA counsel did not “make

note of all the documents requested shortly after oral argument”,

but attached a list showing “The type of document is indicated and

the list is otherwise complete”, and that “several! letters from in-

dustry” were requested, presumably by the Court, but “specific

document numbers were not noted” (Appendix B., B9-11, hereto).

“

. the focal point for judicial review should be the

administrative record already in existence, not some new

record made initially in the reviewing court.” (411 U. S.

at 142.)

Here, the lower court did make a new record as to when docu-

ments were perhaps made available for public comment and

petitioner was severely prejudiced by this ex parte action.

In summary, consideration of procedural issues under 5

U. S. C. § 553 of the Administrative Procedure Act raises the

following issues:

(a) Does the melange of alleged notices through presenta-

tion of material during “by invitation only” seminars, transmis-

sion to one interested party, or deposit in “public files” at

some undetermined dates at intermittent times during the months

immediately preceding issuance of the regulations, comply with

the statute’s requirement for notice and opportunity to comment?

(b) Is it a reasonable construction of Section 553 to hold

that interested members of the public must make in effect a

daily check of the deposit of materials in inadequately indexed

“public files” of the agency, guess as to which materials the

agency will seek to rely on, and file their comments sufficiently

in advance of rule-making to assure that the agency has had

an opportunity to consider them, all at the peril of being held to

have waived right of comment on new materials substantially

relied on by the agency if they do not do so?

of proposed regulations and material on which it proposed to

rely and provided a period for comment thereon, excuse the

failure to follow such procedure when the final regulation is

based substantially on new scientific and medical materials as

to which there has been no notice and opportunity to comment?

(d} Can the reviewing court properly rely upon ex parte

"msworn and unsupported assertions of agency counsel to add

to the administrative record on review on an imporiant issuc

such as notice and the opportunity to comment?

CONCLUSION.

The questions presented raise issues of national importance,

which have generated widely divergent opinions in the lower

court. The petition for a writ of certiorari should be granted.

Respectfully submitted,

Victor P. KAYSER,

JoHN C. BERGHOFF, JR..,

135 South LaSalle Street,

Chicago, Illinois 60603,

Davip MACHANIC,

WILLIAM H. *.TZ,

1200 18th Street, N. W.,

Washington, D. C. 20036,

Attorneys for Petitioner.

Of Counsel:

CHADWELL, KAYSER, RUGGLES,

McGee & HASTINGs,

135 South LaSalle Street,

Chicago, Illinois 60603,

(312) 726-2545,

PIERSON, BALL & Down,

1200 i8th Street, N. W.,

Washington, D. C. 20036,

(202) 331-8566.

APPENDIN

APPENDIX A.

1. Clean Air Amendments of 1970, Pub. L. 91-604, Dec. 31,

1970, 84 Stat. 1698-1700.

42 U.S.C. § 1857c-3(ay1).

Sec. 108.(a)(1) For the purpose of establishing national

primary and secondary ambient air quality standards, the Ad-

ministrator shal! within 30 days after the date of enactment

of the Clean 4 Amendments of 1970 publish, and shall from

time to time thereafter revise, a list which includes each air

pollutant—

(A) which in his judgment has an adverse effect on public

health or welfare;

(B) the presence of which in the ambient air results from

numerous or diverse mobile or stationary sources; and

the date of enactment of the Clean Air Amendments of 1970,

but for which he plans to issue air quality criteria under this

section.

42 U.S.C. § 1857f-1(a)1).

Sec. 202. (a) Except as otherwise provided in subsection

(b)—

(1) The Administrator shall by regulation prescribe (and

from time to time revise) in accordance with the provisions of

this section, standards applicable to the emission of any air pol-

lutant from any class or classes of new motor vehicles or new

motor vehicle engines, which in his judgment causes or con-

tributes to, or is likely to cause or to contribute to, air pollution

which endangers the public health or welfare. Such standards

shall be applicable to such vehicles and engines for their useful

life (as determined under subsection (d)), whether such vehicles

and engines are designed as complete systems or incorporate

devices to prevent or control such pollution.

42 U.S.C. § 1857f-6c{c).

Sec. 211. (c)(1) The Administrator may, from time to

time On the basis of information obtained under subsection (b)

of this section or other information available to him, by regula-

tion, control or prohibit the manufacture, introduction into com-

merce, offering for sale, or sale of any fuel additive for use in

a motor vehicle or motor vehicle engine (A) if any emission

products or such fuel or fuel additive will endanger the public

health or welfare, or (B) if emission products of such fuel or

fuel additive will impair to a significant degree the performance

of any emission control device or system which is in general use,

or which the Administrator finds has been developed to a point

where in a reasonable time it would be in general use were such

regulation to. be promulgated.

(2)(A) No fuel, class of fuels, or fuel additive may be

controlled or prohibited by the Administrator pursuant to clause

(A) of paragraph (1) except after consideration of all relevant

medical and scientific evidence available to him, including con-

sideration of other technologically or economically feasible

means of achieving emission standards under section 202.

(B) No fuel or fuel additive may be controlled or prohibited

by the Administrator pursuant to clause (B) of paragraph (1)

except after consideration of available scientific and economic

data, including a cost benefit analysis comparing emission con-

trol devices or systems which are or will be in general use and

require the proposed control or prohibition with emission con-

trol devices or systems which are or will be in general use and

do not require the proposed control or prohibition. On request

of a manufacturer of motor vehicles, motor vehicle engines, fuels,

or fuel additives submitted within 10 days of notice of proposed

rulemaking, the Administrator shall hold a public hearing and

publish his findings with respect to any matter he is required

to consider under this subparagraph. Such findings shall be pub-

lished at the time of promulgation of final regulations.

ministrator under paragraph (1) unless he finds, and publishes

such finding, that in his judgment such prohibition will not

cause the use of any other fuel or fuel additive which will

produce emissions which will endanger the public health or

welfare to the same or greater degree than the use of the fuel

or fuel additive proposed to be prohibited.

42 U.S.C. § 1857h-S.

Sec. 307. (b)(1) A petition for review of action of the

Administrator in promulgating any national primary or sec-

ondary ambient air quality standard, any emission standard un-

der section 112, any standard of performance under section 111,

any standard under section 202 (other than a standard required

to be prescribed under section 202(b)(1)), any determination

under section 202(b)(5), any control or prohibition under sec-

tion 211, or any standard under section 231 may be filed only

in the United States Court of Appeals for the District of

Columbia.

2. Administrative Procedure Act

5 U.S.C. § 553(b}

General notice of proposed rule making shall be published

in the Federal Register, unless persons subject thereto are

named and either personally served or otherwise have actual

notice thereof in accordance with law. The notice shall in-

clude—

(1) a statement of the time, place, and nature of public

rule making proceedings;

A+

(2) reference to the legal authority under which the

rule is proposed; and

(3) either the terms or substance of the proposed rule

or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this sub-

section does not apply—

(A) to interpretative rules, general statements of policy,

or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorpo-

rates the finding and a brief statement of reasons therefor

in the rules issued) that notice and public procedure there-

on are impracticable, unnecessary, or contrary to the public

interest.

give interested persons an opportunity to participate in the rule

making through submission of written data, views, or arguments

with or without opportunity for oral presentation. After con-

sideration of tue relevant matter presented, the agency shall

incorporate in the rules adopted a concise general statement of

their basis and purpose. When rules are required by statute to

be made on the record after opportunity for an agency hearing,

sections 556 and 557 of this title apply instead of this subsection.

5 U.S.C. § 706(1) & (2)

Scope of review

To the extcnt necessary to decision and when presented, the

revigwing court shall decide all relevant questions of law, inter-

pret constitutional and statutory provisions, and determine the

meaning or applicability of the terms of an agency action. The

reviewing court shall—

(1) compel agency action unlawfully withheld or un-

reasonably delayed; and

(2) hold unlawful and set aside agency action, find-

ings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power, priv-

ilege, or immunity;

or limitations, or short of statutory right;

(D) without observance of procedure required by

law;

(E) unsupported by substantial evidence in a case

subject to sections 556 and 557 of this title or

otherwise reviewed on the record of an agency hear-

ing provided by statute; or

(F) unwarranted by the facts to ‘ue extent that

the facts are subject to trial de novo by the review-

ing court.

In making the foregoing determinations, the court shall review

the whole record or those parts of it cited by a party, and due

account shall be taken of the rule of prejudicial error.

3. The Fuei Additive Regulation

FepD. REG. VoL. 38, No. 234, Dec. 6, 1973

Part 80 of Chapter I, Title 40 of the Code of Federal Regu-

lations is amended as follows:

1. In § 80.1, the second sentence is revised to read as

follows:

§ 80.1 Scope.

* * * These regulations are based upon a determination by

the Administrator that the emission product of a fuel or additive

will endanger the public health, or will impair to a significant

degree the performance of a motor vehicle emission control

device in general use or which the Administrator finds has been

A6é

developed to a point where in a reasonable time 1 would be in

general use were such regulations promulgated; and certain

other findings specified by the Act.

2. In § 80.2, a new paragraph (m) is added as follows:

§ 80.2 Definitions.

* 7 * * .

(m) “Lead additive manufacturer” means any person who

produces a lead additive or sells a lead additive under his own

name.

3. A new § 80.20 is added as follows:

§ 80.20 Controls applicable to gasoline refiners.

(a)(1) im the manufacture of gasoline at any refinery, no

gasoline refiner shall exceed the average lead content per gallon

specified below for each 3-month period (January through

March, April through June, July through September, October

through December) :

(i) 1.7 grams of lead per gallon, after January 1, 1975;

(ii) 1.4 grams of lead per gallon, after January 1, 1976;

(iii) 1.0 grams of lead per gallon, after January 1, 1977;

(iv) 0.8 grams of lead per gallon, after January i, 1978;

(v) 0.5 grams of lead per gallon, after January 1, 1979.

(2) For each 3-month period (January through March,

April through June, July through September, October through

December) the average lead content per gallon shall be com-

puted by dividing total grams of lead used at a refinery in the

manufacture of gasoline by total gallons of gasoline manufac-

tured at such refinery.

(3) For each 3-month period (January through March,

April through June, July through September, October through

December) commencing with the period January 1, 1975

through March 31, 1975, each refiner shall submit to the Ad-

ministrator a report showing for each refinery (i) the total

grams of lead in lead additive inventory on the first day of the

period, (ii) the total grams of lead received during the period,

(iii) the total grams of lead in lead additive inventory on the

last day of the period, (iv) the total gallons of gasoline produced

by such refinery during the period, and (v) the average lead

content in each gallon of gasoline produced during the period.

Reports shall be submitted within 15 days after the close of the

reporting period, on forms supplied by the Administrator upon

request.

(b) The provisions of paragraph (a) (1) (i) and (ii) of this

section shall not be applicable to any refiner which does not have

more than 30,000 barrels per day crude oil or bona fide feed

stock capacity from owned or leased facilities or from facilities

made available to such refiner under an arrangement such as,

but not limited tc, an exchange agreement (except one on a

refined product for refined product basis), or throughput or

other form of processing agreement, with the same effects as

ihough such facilities had been leased.

4. A new § 80.25 is added as follows:

§ 80.25 Controls applicable to lead additive manufac-

turers.

For each 3-month period (January through March, April

through June, July through September, October through

December) commencing with the period January |, 1975 through

March 31, 1975, each lead additive manufacturer shall submit

to the Administrator a report showing the tota! grams of lead

shipped to each refinery by such lead additive manufacturer

during the period. Reports shall be submitted within 15 days

after the close of the reporting period, on forms supplied by the

Administrator upon request.

5. A new § 80.26 is added as follows:

§$ 80.26 Confidentiality of information.

Information obtained by the Administrator or his repre-

sentative pursuant to this part shall be treated, in so far as

its confidentiality is concerned, in accordance with the pro-

visions of 40 CFR Part 2.

APPENDIX B.

ENVIRONMENTAL PROTECTION AGENCY.

September 22, 1975

Ms. Terry Jalbert

Office of the Clerk

U. S. Court of Appeals for the

District of Columbia Circuit

U. S. Courthouse

Third Street and Constitution Avenue

Washington, D. C.

Dear Ms. Jalbert:

Enclosed in two folders are the documents from the record

in Ethyl Corporation v. EPA requested by the Court this

morning.

Will you ask Mr. Cathay to call me at his convenience tomor-

row? I do not think EPA maintained in the past the type of

docket records mentioned in his request to Mr. Clark of the

Justice Department, but I would like to clarify the request.

My telephone number is 755-0766.

Also, Mr. Shawaker, the Justice Department attorney assigned

to this matter will be out of the country for the next three weeks.

if additional documents are necded, I suggest that your office

contact me directly during this period. The record is stored in

my Office, and we will be able to respond promptly.

Sincerely yours,

Leslie Carothers,

Attorney

Air Quality Noise and

Radiation Division (2i-133)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Washington, D. C. 20460

September 26, 1975

Mr. Dan Cathey

Office of the Clerk

U. S. Court of Appeals for the

District of Columbia Circuit

U. S. Courthouse

Third Street and Constitution Avenue

Washington, D. C.

Re: Ethyl Corporation v. EPA (73-2205)

Dear Mr. Cathey:

This is in reply to your request for information on the dates

when EPA received Documents 113 and 468 in the record of the

rulemaking regarding lead additives in gasoline. The informa-

tion you requested is as follows:

A. Document No. 113

This document in the record consists of two separate studies

by Rabinowitz, Wetherill, and Kopple using lead isotope tracers

to investigate human lead metabolism.

1. The first study listed in the Certified Index to the Record

and entitled “Studies of human lead metabolism using stable

isotope tracers” was presented at a joint EPA-HEW Symposium

on lead on October 1-2, 1973. There is no evidence in the

record or elsewhere that EPA received an advance copy of the

full text of this paper.

EPA did receive advance abstracts of most of the papers pre-

sented shortly before the Symposium. These abstracts, includ-

ing an abstract of the Rabinowitz paper, appear in the record

as Document No. 1092. The files of the Office of General

Counsel, which reviewed many documents before transmittal to

Ethyl Corporation under a Freedom of Information Act Agree-

ment, indicate that the abstracts were sent to Ethyl Corporation

and to the public file on October 4, 1973.

2. The second study by the same authors indexed as Docu-

ment 113 is “Lead Metabolism in the Normal Human: Stable

Isotope Studies.” The copy of the study appearing in Document

113 is the study as published in the November, 1973 issue of

Science Magazine.

The isotope study reported in Science was conducted before

the similar study reported at the EPA/HEW symposium. An

early draft of the study ultimately published in Novenber,

1973, was sent to EPA by one of the authors on May 5, 1973.

The covering letter and the attached draft appear in the record

as Document No. 470. A copy of that document is enclosed.

In addition, a revised and final draft of the same study was

subsequently received by EPA and sent to the Office of General

Counsel on August 6, 1973 for transmittal to Ethyl Corpora-

tion and the public file. This typed draft does not appear in the

Certified Index to the Record, because I directed the librarian

who assisted me in preparing the index to remove drafts of

scientific articles that were also available in published form by

the time the regulations were promulgated, provided that the

typed draft was identical to the published version. I retained

in my files of duplicates the copy of the typewritten draft with

the notation that it was withdrawn from the public file on Janu-

ary 22, 1974, during the period when we prepared the index.

I will be glad to forward this draft and the notation if the Court _

desires it.

B. Document No. 468

The study by Tsuchiya, et el. entitled “Study of Ldad Con-

centrations in Atmosphere and Population in Japan” |was sent

to the Office of General Counsel on July 22, 1973, for trans-

}

mittal to Ethyl Corporation and to the public file. The docu-

ment was therefore received by EPA before that date.

If I can be of further assistance, please let me know.

Sincerely yours,

/s/ LESLIE CAROTHERS

Leslie Carothers

Attorney

Air Quality Noise and

Radiation Division (A-133)

Enclosure.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Washington, D. C. 20460.

September 29, 1975

David Mechanic, Esq.

Pierson, Bell & Dowd

1000 Ring Building

Washington, D. C. 20036

Dear Mr. Mechanic:

Re: Ethyl Corporation v. EPA (73-2205) and

related cases

Last week, the Clerk of the Court requested information on

the dates when EPA received Documents No. 113 and 468 in

the Certified Index to the Record. Our letter in response to this

request is enclosed for your information.

Sincerely yours, ‘

/s/ LESLIE CAROTHERS

Leslie Carothers

Attorney

Air Quality Noise and

Radiation Division (A-133)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Washington, D. C. 20460.

October 1, 1974

Mr. Robert Bonner

Chief Deputy Clerk

U. S. Court of Appeals for the

District of Columbia Circuit

U. S. Courthouse

Washington, D. C.

Re: Ethyl Corp. v. EPA, 73-2205; Nalco Chemical

Co. v. EPA, 73-2270; NPRA v. EPA, 74-1021;

PPG Industries v. EPA, 73-2268; E. I. DuPont

De Nemours v. EPA, 73-2269.

Dear Mr. Bonner:

Per your request, I am enclosing eight (8) copies of the

article entitled “Atmospheric Lead: Its Relationship to Traffic

Volume and Proximity to Highways” by Robert H. Daines,

Harry Motto, and Daniel M. Chilko. The article was published

in the April, 1970 issue of Environmental Science and Tech-

nology. This study is cited in other articles reproduced in the

Joint Appendix (see, e.g., p. 269 n. 17 and 467 n. 1), but a

copy of this reference was not included in the Certified Index to

the Record.

I am also enclosing copies of a second article with a similar

title by the same authors in case there was any confusion about

the reference desired. That article is entitled “Lead in Soils and

Plants: Its Relationship to Traffic Volume and Proximity to

Highways” by Harry L. Motto, Daniel H. Daines, Daniel M.

Chilko, and Carlotta K. Motto. This reference is Document

No. 102 in the Certified Index to the Record, but it is not

included in the Joint Appendix.

A complete copy of Airborne Lead in Perspective, the Report

of the National Academy of Sciences is also included as you

requested. It is Document No. 14 in the Certified Index.

Excerpts from the report are reproduced in the Joint Appendix

at pp. 309-363.

Copies of this letter and the two enclosed articles are being

sent to counsel of record. If I can be of further assistance,

please let me know.

Sincerely yours,

/s/ LESLIE CAROTHERS

Leslie Carothers

Attorney

Air Quality Noise and

Radiation Divison (EG-333)

EG-333

cc: Edward J. Shawaker, Esq. David Machanic, Esq.

Department of Justice Pierson, Ball & Dowd

Washington, D.C. 20530 1000 Ring Building

Joseph C. Carter, Esq. Washington, D. C. 20036

Hunton, Williams, Gay & Gibson Daniel Gribbon, Esq.

700 East Main Street Allan Topol, Esq.

Richmond, Virginia 23212 Covington & Burling

John J. Adams, Esq. 888 16th Street, N.W.

Hunton, Williams, Gay & Gibson Washington, D. C. 20006

Suite 1060 H. Edward Dunkelberger, Esq.

1730 Pennsylvania Avenue, N.W. Theodore L. Garrett, Esq.

Washington, D.C. 20006 Covington & Burling

John C. Berghoff, Jr., Esq. 888 16th Street, N.W.

Chadwell, Kayser, Ruggles, Washington, D. C. 20006

McGee & Hastings

135 South LaSalle Street

Chicago, Illinois 60603

October 2, 1975

Mr. Dan Cathey

Office of the Clerk

U. S. Court of Appeals for the

District of Columbia Circuit

U. S. Courthouse

Third Street and Constitution Avenue

Washington, D.C.

Re: Ethyl Corporation v. EPA (73-2205) and

related cases

Dear Mr. Cathey:

Enclosed is a copy of Document No. 875, a letter to EPA

dated August 28, 1972, reporting preliminary results of the

first isotope study in Document No. 113. The letter was filed

and indexed with the public comments, under “California

University” and I overlooked it before.

I am also enclosing a copy of the letter sent to opposing

counsel with the copy of my letter to you of September 26,

1975. Identical letters were sent to each counsel.

Sincerely yours,

/s/ LESLIE CAROTHERS

Leslie Carothers

Attorney

Air Quality Noise and

Radiation Division (A-133)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Washington, D. C. 20460.

October 15, 1975

Victor P. Kayser, Esq.

Chadwell, Kayser, Ruggles,

McGee & Hastings

135 South LaSalle Street

Chicago, Illinois 60603

Re: Nalco Chemical Company v. EPA (73-2270)

Dear Mr. Kayser:

Mr. Fitz told me that you were interested in knowing what

documents the Court had requested from the record of the lead

litigation. I am enclosing a copy of our list of the documents

requested to date. As the enclosure indicates, I did not make

note of all the documents requested shortly after the oral argu-

ment; but the type of document is indicated, and the list is

otherwise complete.

Sincerely yours,

/8/ LESLIE CAROTHERS

Leslie Carothers

Attorney

Air Quality Noise and

Radiation Division (A-133)

cc: Mr. William Fitz

B10

DOCUMENTS FROM THE ETHYL RECORD

REQUESTED BY THE COURT.

9/22/75

160 Summary of Comments P.elative to EPA Position on Lead

in Gasoline. Undated.

170 Summary Relative to EPA Position on Lead. Undated.

180 EPA Reopens Record on Proposed Lead Regulations.

Undated.

345 Summary of EPA’s Position for Controlling Lead in

Leaded Gasoline. Undated.

835 International Lead Zinc Research Organization, Inc.

Letter from J. F. Cole, July 30, 1973.

836 Letter from J. F. Cole, March 9, 1973.

9/3/75

84 Knelson, Role of Clinical Research, etc. (also in

Appendix).

85 Knelson, Kinetics of Respiratory Lead Intake in Humans,

May 1973. (Also in Appendix).

111 Proceedings of Luxemburg Conference.

141 EPA’s Position on the Health Effects of Lead. (Draft

of Health Paper), October 19, 1973.

142 EPA’s Position on the Health Effects of Lead. (Draft of

Health Paper), July 25, 1973.

143 EPA’s Position on the Health Effects of Lead. (Draft of

Health Paper), June 22, 1973.

433 Ethyl Transcript of EPA/HEW Symposium, Oct. 1-3,

1973.

486 Briefing memo for Train, Octover 1973.

1109 Unsigned, untitled draft of Briefing paper, July 12, 1973.

Bil

6/9/75

807 DuPont Submission, 3/9/73.

821 Nalco (Calandra) critique of EPA Health Position

Paper, November 19, 1973.

Several letters from industry received just before the Court-

ordered decision date were requested. Specific document num-

bers were not noted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.