Opposition — Lead Industries Ass'n v. Environmental Protection Agency

Supreme Court brief1980

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Nos. 80-482 and 80-483 NOV 14

In the Supreme Court of the United asetond

OCTOBER TERM, 1980

LEAD INDUSTRIES ASSOCIATION, INC., PETITIONER

| ENVIRONMENTAL PROTECTION AGENCY

ST. JOE MINERALS CORPORATION, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

ENVIRONMENTAL PROTECTION AGENCY

IN OPPOSITION

DAVID O. BICKART . WADE H. MCCREE, JR.

Deputy General Counsel Solicitor General

GERALD K. GLEASON JAMES W. MOORMAN

Assistant General Counsel — Assistant Attorney

General

JAMES N. CAHAN

Attorney DONALD W. STEVER

ANNE S. ALMY

NANCY SOUTHARD BRYSON

Attorneys

United States Environmental

Protection Agency

Washington, D.C. 20460

z Department of Justice

Washington, D.C. 20530

| (202) 633-2217

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-482

LEAD INDUSTRIES ASSOCIATION, INC., PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY

No. 80-483

St. JOE MINERALS CORPORATION, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

ENVIRONMENTAL PROTECTION AGENCY

IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the decision of the court of appeals,

upholding the Administrator’s promulgation under

(1)

the Clean Air Act of the national primary ambient

air standard for lead, conflicts with this Court’s de-

cision in Industrial Union Department, AFL-CIO v.

American Petroleum Institute, No. 78-911 (July 2,

1980).

2. Whether the court of appeals correctly held

that the Administrator acted within the discretion

committed to him under the Clean Air Act in deter-

mining an appropriate “margin of safety” to be used

in setting the primary standard.

3. Whether the court of appeals correctly upheld

the Administrator’s determination to adopt a second-

ary standard that was no more stringent than the

primary standard.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Amoco Oil Co. v. EPA, 501 F.2d 722 0000000000000... 2

Ethyl Corp. v. EPA, 541 F.2d 1, cert. denied, 426

BER «AAMC ee alls tY SenLEeOm TID aN) NELeGNE Te) SUE SNe Mert 2

Industrial Union Department, AFL-CIO v. Ameri-

can Petroleum Institute, No. 78-911 (July 2,

| i RA MANSONI RI LIMES RECN De Me 8,9, 10, 11,138

NRDC Vv. Train, 411 F. Supp. 864, aff’d, 545 F.2d

EDA pee SATE Se ce et ae he Ie ee 3

ro, Be.) i ome | RR een 2,10, 15

Union Electric Co. Vv. EPA, 427 U.S. 246........ 2,10, 15, 16

United Steelworkers, AFL-CIO-CLC v. Marshall,

No. 79-1048 (D.C. Cir. Aug. 15, 1980) .............. 12, 13

Vermont Yankee Nuclear Power Corp. v. NRDC,

Se I III stele deh cocnceecarscalckauiatectdesseiselin haatstueks 18

Statutes :

Clean Air Act, 42 U.S.C. (Supp. II) 7401 et seq.:

Section 108, 42 U.S.C. (Supp. II) 7408......1, 3, 15, 17

Section 108 (a) (2), 42 U.S.C. (Supp. II) 7408

CN Be ap iecacscctipasdierriemeneensecccipaeastnnantennasendansiiin 3

Section 109, 42 U.S.C. (Supp. II) 7409......1, 3, 15, 17

Section 109(b) (1), 42 U.S.C. (Supp. II) 7409

EINE MUEDD ... citccctasheiargdeunadsshanvateinen iaaideetasanialinehareaens 1, 9,17

Section 109(b) (2), 42 U.S.C. (Supp. II) 7409

1 2 GPAERERDP RINSE e OR PEE EPI STE OY Miatecet PREP EPE ae 1

Statutues—Continued Page

Section 110 (a) (2), 42 U.S.C. (Supp. II) 7410

EGE Ue eR Lee corm, Amare 16

Section 110(a) (2) (A), 42 U.S.C. (Supp. II)

I ico cccnevanteuniinstneinimnoens 2

Section 110(a) (2) (B), 42 U.S.C. (Supp. IT)

SERRE es ence Sere 2

Section 119, 42 U.S.C. (Supp. II) 7419 ............ 16

Section 172(a), 42 U.S.C. (Supp. II) 7502

RAE EER OR Renee ORE et RP oR 16

Section 202, 42 U.S.C. (Supp. II) 7621 .......... 16

Section 307(d), 42 U.S.C. (Supp. II) 7607

ES A ee ae API TE ie nO 17

Section 307 (d) (7) (B), 42 U.S.C. (Supp. IT)

gs 6 | SRI a ane et ee Ce ee 18

Occupational Safety and Health Act of 1970, 29

U.S.C. 651 et seq.:

Section 3(8), 29 U.S.C. 652(8) .............0 9

Section 4(a) (2), 29 U.S.C. 653 (a) (2) .......... 10

Section 10, 29 U.S.C. 669 .................................. 10

Miscellaneous:

GF, TO, Be CIGD visccccccncscccceicicciccsescosssckccs 2,5

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970).. 10, 15,

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1la-

llla) is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered

on June 27, 1980. The petitions for a writ of cer-

tiorari were filed on September 25, 1980. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Sections 108 and 109 of the Clean Air Act, 42

U.S.C. (Supp. II) 7408 and 7409, require that the

Administrator of the Environmental Protection

Agency establish national primary ambient air quality

standards “which in the judgment of the Administra-

tor, * * * and allowing an adequate margin of safety,

are requisite to protect the public health.” Section

109(b)(1) of the Act, 42 U.S.C. (Supp. II) 7409

(b)(1).' While the Administrator is thus respon-

sible for setting national standards, the Clean Air

Act requires that the states develop specific ‘“imple-

mentation plans” containing emission limitations and

other measures affecting individual sources, as may

be necessary to attain and maintain the standards

set by the Administrator. Primary standards must

‘The Act also provides for secondary standards “which

in the judgment of the Administrator * * * [are] requisite

to protect the public welfare from any known or anticipated

adverse effects associated with the presence of such air

pollutant in the ambient air.” Section 109(b)(2) of the

Act, 42 U.S.C. (Supp. II) 7409(b) (2).

(1)

be attained within three years following the approval

of a state plan.’

On October 5, 1978, the Administrator issued a pri-

mary ambient air quality standard limiting the maxi-

mum permissible atmospheric concentration of lead to

1.5 micrograms of lead per cubic meter of air (ug

Pb/m*). The Administrator determined that this

ambient level was necessary to insure that the blood

lead levels in children of 1-5 years, who were conceded

to be the most susceptible population, would not ex-

ceed 30 micrograms of lead per deciliter of blood (ug

Pb/dl) (Pet. App. 113a-166a).* See also 43 Fed. Reg.

46246 (1978). Petitioners subsequently brought this

action in the United States Court of Appeals for the

District of Columbia Circuit, challenging the lead

standard on various grounds. On June 27, 1980, the

court of appeals affirred the Administrator’s action

(Pet. App. la-11la).

1. The administrative history and background of

the lead standards are thoroughly explained in the

opinion of the court of appeals (Pet. App. 3a-24a).

2 Secondary standards must be attained within a reasonable

time. Sections 110(a) (2) (A) and (B) of the Act, 42 U.S.C.

(Supp. II) 7410(a) (2) (A) and (B). See also Union Electric

Co. Vv. EPA, 427 U.S. 246 (1976); Train v. NRDC, 421 U.S.

60 (1975).

’ At the same time, the Administrator issued a secondary

ambient air lead standard at the same maximum permissible

concentration. The Administrator found that this level “will

[also] adequately protect against known and anticipated

adverse effects on public welfare” (Pet. App. 156a). EPA

had previously issued regulations limiting the amount of

lead in gasoline; those regulations have been upheld by the

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

1974); Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.) (en

banc), cert. denied, 426 U.S. 941 (1976).

Briefly, lead is an element with valuable industrial

properties; it is also a deadly poison that has no

known beneficial function in the body and “attacks

the blood, kidneys, and central nervous and other

systems and can cause anemia, kidney damage, severe

brain damage, and death” (Pet. App. 4a). Pursuant

to a 1976 court order,‘ lead was listed as a pollutant

that may reasonably be anticipated to endanger the

public health and welfare, thus requiring the develop-

ment of national ambient air quality standards. See

Sections 108 and 109 of the Act, 42 U.S.C. (Supp.

II) 7408-and 7409. On December 14, 1977, a stand-

ard of 1.5 ug Pb/m* was proposed by the Adminis-

trator, based upon scientific information contained

in “Air Quality Criteria for Lead” (Criteria Docu-

ment), which was prepared by a panel of scientists

pursuant to Section 108 of the Act, 42 U.S.C. (Supp.

II) 7408.° The Criteria Document was described by

the court of appeals as a “comprehensive and thought-

ful analysis of the most current scientific informa-

tion” about the effects of lead on the body (Pet.

App 8a).° In addition to numerous diseases, such

*See NRDC v. Train, 411 F.Supp. 864 (S.D.N.Y. 1976),

aff’d, 545 F.2d 320 (2d Cir. 1976).

5 Section 108(a) (2) of the Act provides that “[alir quality

criteria for an air pollutant shall accurately reflect the latest

scientific knowledge useful in indicating the kind and extent

of all identifiable effects on public health or welfare which

may be expected from the presence of such pollutant in the

ambient air” (42 U.S.C. (Supp. II) 7408(a) (2)).

®The Criteria Document was revised three times before

publication. Although the initial draft, which proposed a

standard of 5 ug Pb/m', was criticized for its lack of scholar-

ship and overall poor quality in the area of human health

effects, the final document was described by the court below

as “the culmination of a process of rigorous scientific and

as anemia and lead poisoning, which are common-

ly known to be caused by and related to lead, the

Criteria Document reported that relatively low lev-

els of lead also caused adverse effects on the hema-

tological (bloodforming) and central nervous systems,

two body systems that are of prime importance to

human health (Pet. App. 10a-14a).’

The Criteria Document reported that lead not only

destroys blood cells eventually, but that it also im-

pairs the synthesis of heme within those cells. Heme,

which is a critical component of hemoglobin, is es-

sential to the transport of life-sustaining oxygen from

the respiratory system to all the cells of the body

(Pet. App. 12a-13a).° This disruption is indicated

by elevated levels of erythrocyte protopophyrin (EP)

in red blood cells.’

public review, and thus is a comprehensive and thoughtful

analysis of the most current scientific information on the

subject” (Pet. App. 8a).

7 According to the Criteria Document, other body systems

are also seriously affected by lead. They include the renal,

reproductive, hepatic, endocrinal, cardiovascular, immuno-

logic and gastrointestinal systems (Pet. App. 10a n.8).

8 Hemoglobin consists of heme and globin. Lead interferes

with the synthesis of hemoglobin by affecting several steps in

synthesis of the heme molecule and by inhibiting synthesis

of the globin moiety (Pet. App. 10a-lla n.9).

® An impairment to human health is further indicated by

elevated EP in that elevated EP indicates an impairment and

dysfunction of the mitochondria, subcellular units that-are

critical to providing basic energy to the body. Elevated EP

therefore raises the possibility that the production of heme

proteins in other body systems, including the renal and

neurological, may also be impaired. The Criteria Document

identified the threshold for elevated EP at 15-20 ug Pb/dl

for children and women, and 25-30 ug Pb/dl for adult males

(Pet. App. lla-12a).

The Criteria Document also reported extremely

serious neurological damage, including irreversible

brain damage and death, occurring in children at

blood-lead levels of 80-100 ug Pb/dl (Pet. App. 18a-

14). Finally, the Criteria Document reported that

neurological and cognitive dysfunctions can begin at

blood-lead levels as low as 50-60 ug Pb/dl (Pet. App.

14a).*°

In October 1978, following an extensive public rule-

making process (see Pet. App. 8a-9a), the Adminis-

trator issued final standards with his findings and

explanation (Pet. App. 113a-166a). See also 43 Fed.

Reg. 46246 (1978). The Administrator concluded

that the maximum safe individual blood-lead level for

children was 30 ug Pb/dl. Because children between

the ages of one and five years constitute the most

sensitive population group, the Administrator deter-

mined that the air standard should be set at a level

that would permit the blood-lead levels to be kept

below 30 ug Pb/dl in 99.5% of that population

10 The Criteria Document also addressed: two other issues

integral to the setting of the appropriate ambient air level:

(1) the relationship between air-lead and blood-lead levels,

and (2) the distribution of a given blood lead level within the

general population. The Criteria Document found that the

relationship between air and blood levels was not linear, but

ranged between a ratio of 1:1 and 1:2 (air-lead/blood-lead),

with children falling at the higher end of the range (Pet.

App. 15a). With respect to population distribution, the Cri-

teria Document found that there will be a range of blood-lead

levels within a group of individuals, and that this range

will follow the common bell-shaped pattern of a lognormal

distribution, with a predictable number of individuals hav-

ing blood-lead levels higher than the mean and others having

blood-lead levels lower than the mean. The setting of any

standard designed to protect the public health would thus have

to take into account this distribution (Pet. App. 15a-16a).

group. The Administrator then calculated that an

ambient air lead standard of 1.5 ug Pb/m* was neces-

sary to achieve that level of protection.

2. The court of appeals upheld the lead standards

in a unanimous decision. The court rejected peti-

tioners’ contention that the Administrator’s authority

to prescribe primary standards is limited to situa-

tions in which a firm medical consensus has demon-

strated that the level of pollution is “clearly harmful

to health.” The court noted that Congress had given

the Administrator a clearly precautionary mandate

by giving him broad discretion under the Clean Air

Act to prescribe primary ambient air standards to

protect the public, including particularly susceptible

population groups, from adverse health effects, with

provision for an adequate margin of safety (see Pet.

App. 42a-48a).

Based on a thorough review of the rulemaking

record, including the Criteria Document and public

written and oral comments, the court of appeals con-

cluded that the record amply supported the Adminis-

trator’s determination that 1.5 ug Pb/m* was an ap-

propriate primary national ambient air standard, and

that this determination was not arbitrary, capricious

or an abuse of discretion. Specifically, the court found

that the record supported the Administrator’s deter-

minations (1) that the first adverse health effect of

lead exposure occurs with EP elevation at 30 ug Pb/

dl, indicating an impairment of the heme system;

(2) that anemia begins in chiidren at 40 ug Pb/dl;

(8) that central nervous system deficits begin at

50-60 ug Pb/dl; and (4) that a maximum individual

safe blood-iead level of 30 ug Pb/dl is necessary to

protect, with an adequate margin of safety, the sensi-

tive population from these increasingly severe ad-

verse health effects (Pet. App. 49a-58a). The court

noted that some industry experts had challenged these

determinations, but held that “[i]t is not our function

to resolve disagreement among the experts or to judge

the merits of competing expert views” (Pet. App.

59a). Such disagreements, the court noted, do not

“prevent us from concluding that [the Administra-

tor’s] decisions were rational and supported by the

record” (ibid.).

The court of appeals also found that the method

chosen by the Administrator to allow for a margin of

safety was within his authority (Pet. App. 62a).

The court explicitly rejected the assertion of peti-

tioner St. Joe Minerals Corporation that the Admin-

istrator must first determine the ambient level need-

ed to protect public health and then make a separate

determination as to the amount by which that level

should be lowered to provide an adequate margin of

safety. The court of appeals found nothing in the

language or legislative history of the Act to re-

quire the Administrator to adopt that particular

approach. The court noted that the Administra-

tor had in fact considered that approach, and that

he had explained his reasons for rejecting it. The

court concluded that the choice between several

possible approaches was a policy choice “specific-

ally left to the Administrator’s judgment” (Pet.

App. 6la-64a). The court also rejected petition-

ers’ contention that the Administrator must con-

sider economic costs and technological feasibility in

providing for the “adequate margin of safety.” The

court held that “the statute and its legislative his-

tory make clear that economic considerations play

no part in the promulgation of ambient air quality

standards under Section 109” (Pet. App. 3la-32a)."

11 The court also found extensive record support for: (1)

the Admiaistrator’s choice of an air-lead/blood-lead ratio

In conclusion, the court of appeals described the

promulgation of national ambient air quality stand-

ards for lead as “the culmination of a process of

rigorous scientific and public review which permitted

a thorough ventilation of the complex scientific and

technical issues presented * * *” (Pet. App. 1lla).

The court also acknowledged that difficult and con-

troversial scientific questions had been encountered

in the process and stated that “both the EPA and

the participants in the rulemaking proceeding de-

serve to be commended for the diligence with which

they approached the task of coming to grips with

these difficult issues” (ibid.).

ARGUMENT

This case presents no issue warranting review by

this Court. The unanimous decision of the court of

appeals is correct and does not conflict with any deci-

sion of this Court or anv court of appeals.

1. Contrary to the contention of petitioner Lead

Industries Association (LIA), the decision below does

not conflict with this Court’s decision in Industrial

Union Department, AFL-CIO v. American Petroleum

Institute, No. 78-911 (July 2, 1980). In Industrial

Union, this Court vacated a standard issued by the

Secretary of Labor setting one part per million

(ppm) as the maximum occupational exposure to

benzene. The plurality held that the standard was

invalid because the Secretary had not made a deter-

mination, based on evidence in the rulemaking record,

(Pet. App. 63a-66a); (2) the overall method used by the

Administrator in calculating the lead standard (Pet. App.

66a-70a); and (3) the Administrator’s decision not to ex-

clude large or insoluable lead particles from the ambient air

standards (Pet. App. 7la-75a).

that exposure to benzene at the consensus maximum

levei of ten ppm subjected employees to a “significant

risk of material health impairment” (slip op. 42).

Only based on such a finding, the plurality held, could,

the challenged standard satisfy the requirement of

the Occupational Safety and Health Act of 1970

(OSHA), that a standard be “reasonably necessary or

appropriate to provide safe or healthful employment

** *” Section 3(8) of OSHA, 29 U.S.C. 652(8).

Petitioner restates the “significant risk” standard

articulaied in Industric’ Union by arguing that EPA

must set an ambient air quality standard to protect

the public only from risks that are “clearly harmful’

or “clearly adverse.” That contention lacks merit

both because it inaccurately restates the Jndustrial

Union test and because it improperly seeks to incor-

porate into the Clean Air Act a statutory standard

that applies only to OSHA.

The Clean Air Act provides that ambient air qual-

ity standards “shall be standards the attainment and

maintenance of which in the judgment of the Admin-

istrator, * * * and allowing an adequate margin of

safety, are requisite to protect the public health.”

Section 109(b)(1) of the Clean Air Act, 42 U.S.C.

(Supp. II) 7409(b)(1) (emphasis added). Based

upon a careful examination of the language and leg-

islative history of the Clean Air Act, the court below

correctly held that the language chosen by Congress

unequivocally demonstrates that the Administrator

must set national primary ambient air quality stand-

ards that are precautionary—‘“to protect against ef-

fects which have not yet been uncovered by research

and effects whose medical significance is a matter of

disagreement” (Pet. App. 45a). See also Pet. App.

31la-45a.

Even if the Industrial Union plurality’s construc-

tion of different statutory provisions contained in a

different statutory scheme” were relevant here, the

decisions would not be inconsistent. As the plurality

opinion there emphasized, findings of “significant

risk” need not be supported “with anything approach-

ing scientific certainty.” Rather, “so long as they are

supported by reputable scientific thought, the Agency

is free to use conservative assumptions in interpret-

ing the data * * * risking error on the side of over-

protection rather than under-protection” (slip op. 44-

45).

Moreover, unlike the situation in Industrial Union,

the Administrator did make express findings of health

impairment here. Although the Administrator’s find-

ings were not framed in the “significant risk” lan-

12 The divergent language that Congress employed in OSHA

and the Clean Air Act reflects the distinctive and different

roles played by OSHA “occupational safety and health stand-

ards” and the Clean Air Act’s “ambient air quality stand-

ards.” The OSHA standards are directly applicable to each

industrial employer subject to the standards, and they are

directly enforced by federal officials (29 U.S.C. 653(a) (2),

659). In contrast, the development of ambient air quality

standards under the Clean Air Act is only the first step in a

federal-state scheme, in which EPA defines the level of air

quality “requisite to protect the public health,” but leaves

primarily to the states the attainment and maintenance of

that level. See generally Train v. NRDC, 421 U.S. 60 (1975).

Unlike the OSHA scheme, in which the Secretary of Labor

must consider feasibility in arriving at a standard, the re-

quirements of the Clean Air Act are designed to achieve

health-protective levels without regard to the economic or

technological feasibility of compliance. See S. Rep. No. 91-

1196, 91st Cong., 2d Sess. 2-3 (1970), quoted in Union Elec-

tric Co. v. EPA, 427 U.S. 246, 259 (1976). See also pages

14-16, infra.

guage that this Court later suggested in Jndustrial

Union, the Administrator’s findings and the support-

ing evidence clearly satisfy the Court’s concern that

federal regulation of pollutants be directed to levels

at which real health threats are proscribed. Spe-

cifically, the Administrator found that for children:

(1) elevated EP at 30 ug Pb,dl represents the first

adverse health effect of lead; ** (2) the more serious

effect of anemia begins at 40 ug Pb/dl; and (3) the

extremely serious and largely irreversible effect of

brain and central nervous system impairment begins

at 50 ug Pb/dl (Pet. App. 16a-24a, 49a-62a, 141a-

145a). The findings concerning central nervous sys-

tem dysfunction are particularly significant in that

they show that diminished capacity to think, reason,

and control behavior begin at blood-lead levels only

slightly above those typically identified in urban chil-

dren (Pet. App. 3a-15a, 56a-57a).

Based on these three findings, the Administrator

concluded that 30 ug Pb/dl is the maximum safe

13 LIA contends (Pet. 12) that the evidence does not

support a finding of adverse health effects below 40 ug

Pb/dl. That is a factual question that Congress left pri-

marily to the expert judgment of the Administrator (see Pet.

App. 46a & n.50, 51a-54a). The court below found ample

support for the Administrator’s finding, not only in the

Criteria Document, but also in “the testimony of various

medical and other scientific experts who participated in the

lead standards rulemaking” (Pet. App. 5la-55a). The court

also rejected LIA’s argument that EP elevation below 40

ug Pb/dl is only a “subclinical” effect and therefore insuffi-

cient as a basis for standard-setting, noting that: (1) an

effect may be clearly adverse even if it is difficult or impos-

sible to detect by clinical means; and (2) the modern trend

in preventive medicine is to detect health problems in their

subclinical stages and take appropriate corrective action

(Pet. App. 54a-55a).

individual blood-lead level for children, a level de-

signed to protect them not only from adverse EP

elevation at 30 ug Pb/dl and above, but also from

the increasingly serious adverse health effects of lead

beginning at 40 and 50 ug Pb/dl (Pet. App. 49a-58a).

The court of appeals thoroughly reviewed the admin-

istrative record and found “ample support” for the

Administrator’s findings (Pet. App. 51a). Both the

Administrator and the court of appeals were im-

pressed that the Center for Disease Control had chos-

en 30 ug Pb/dl as the initial screening point for de-

tection of lead poisoning in children, that is, for iden-

tifying children who have already absorbed too much

lead from their environment and for whom medical

observation or intervention is considered appropriate

(Pet. App. 52a-538a).

The record demonstrates that the scientific debate

was sometimes heated during the administrative proc-

ess, and the Administrator was required to make dif-

ficult decisions.* However, as the court of appeals

properly concluded, each of the Administrator’s deci-

sions was both reasonable and adequately supported

by record evidence. Accordingly, the administrative

14 As the court of appeals stated (Pet. App. 58a-59a; foot-

notes omitted) :

To be sure, the Administrator’s conclusions were not

unchallenged ; both LIA and the Administrator are able to

point to an impressive array of experts supporting each

of their respective positions. However, disagreement

among experts is inevitable * * *. It may be that LIA

expects this court to conclude that LIA’s experts are

right and the experts whose testimony supports the

Administrator are wrong. If so, LIA has seriously mis-

conceived our role as a reviewing court.

15 Indeed, the District of Columbia Circuit noted again the

substantiality of these findings in United Steelworkers,

AFL-CIO-CLC v. Marshall, No. 79-1048 (Aug. 15, 1980),

action here well represents the type of rulemaking,

based on specific findings supported by the evidence,

that this Court identified as necessary in Industrial

Union.

2. The court of appeals’ construction of the “mar-

gin of safety” provision is consistent with the lan-

guage and legislative history of the Clean Air Act.

Petitioners contend that the margin of safety allowed

by the Administrator is excessive; they assert that

an additional margin of safety was improperly pro-

vided in virtually every substantive decision that the

Administrator made in setting the primary standard.

In fact, as the Administrator clearly stated, he sought

a margin of safety in only two instances: (1) the se-

lection of 30 ug Pb/dl as the maximum safe individual

lead blood level for children, and (2) the decision to

protect 99.5% of the sensitive population (Pet.

App. 152a-154a). In all other instances in which

petitioners claim that the Administrator made al-

lowances for a margin of safety, he actually made

scientific judgments based on the best available evi-

dence, as the court of appeals correctly recognized

(Pet. App. 62a).

Of equal importance, the Administrator’s decision

to provide for a margin of safety through conserva-

tive judgments at two critical points within his analy-

sis, rather than by making a single adjustment at

the end of the process, does not show that the stand-

in which the court applied Industrial Union in uphold-

ing the regulation of lead exposure in the workplace. The

court noted in United Steelworkers (slip op. 108 n.93) that

EPA’s “findings of the subclinical effects of lead—findings

virtually identical to those OSHA has made here—were easily

sufficient to support the new [EPA] regulation.” See also

slip op. 99-112.

ard is excessive. The margin of safety for each

standard must be tailored to insure that scientific

uncertainty is taken into account in an effective man-

ner. In the case of lead, the application of a single

margin of safety at the termination of the multi-

stage calculation process would be highly inaccurate.

The Administrator decided therefore, and the court

of appeals found that decision reasonable, that the

standard would be more accurate if he focused on

critical points within the analysis in setting the mar-

gin of safety (Pet. App. 135a-136a, 152a-154a). The

court of appeals properly noted that Congress had

left to the Administrator’s discretion the choice be-

tween such competing methods (Pet. App. 61a-62a).

The real test, which the court of appeals found satis-

fied here, was not whether the Administrator had fol-

lowed a particular formula, but whether each of his

decisions was reasonable and supported by the facts

(Pet. App. 62a-63a). See generally Pet. App. 59a-

67a.

Petitioner St. Joe Minerals Corporation argues

(Pet. 8-11) that the court incorrectly excluded consid-

erations of cost and technological feasibility from the

selection of a margin of safety. That contention is

unfaithful to the language and scheme of the Clean

Air Act, the overriding purpose of which is to pro-

tect the public health. In line with that purpose,

16 Petitioners’ claim that the margin of safety, and thus

the standard itself, is excessive is not supported by the evi-

dence. A maximum blood-leed level of 30 ug Pb/dl, protect-

ing 99.5% of the sensitive population, is adequate but

not excessive. For example, the Administrator estimated

that, given this blood-lead level and population percentage,

20,000 children in central urban areas alone would have

blood-lead levels exceeding the maximum safe level of 30 ug

Pb/dl (Pet. App. 153a).

Congress simply did not give the Administrator

discretion to consider cost or technical feasibility

in setting ambient air standards. Neither Section 108,

which specifies the factual criteria upon which am-

bient standards are to be based,Wor Section 109,

which contains the legal test which they must meet,

discusses or otherwise suggests any consideration of

cost or technical feasibility. See Pet. App. 32a-38a.

Moreover, the Senate Report on the 1970 Amend-

ments states (S. Rep. No. 91-1196, 91st Cong., 2d

Sess. 2-3 (1970) ):

In the Committee discussions, considerable con-

cern was expressed regarding the use of the

concept of technical feasibility as the basis of

ambient air standards. The Committee deter-

mined that 1) the health of people is more im-

portant than the question of whether the early

achievement of ambient air quality standards

protective of health is technically feasible; and,

2) the growth of pollution load in many areas,

even with application of available technology,

would still be deleterious to public health.

Therefore, the Committee determined that

existing sources of pollutants either should meet

the standard of the law or be closed down * * *.