# Opposition — Lead Industries Ass'n v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0499%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1042 ## Text semanas pupreirie COUT, FILE Nos. 80-482 and 80-483 NOV 14 In the Supreme Court of the United asetond OCTOBER TERM, 1980 LEAD INDUSTRIES ASSOCIATION, INC., PETITIONER v. | ENVIRONMENTAL PROTECTION AGENCY ST. JOE MINERALS CORPORATION, PETITIONER v. 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) Il 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 ME ARR AE PR ARE RR CLE ENTE SOLID 1 RELA Naa Snore MED BDO Sc ke oct SRO ME fr 1 IIE © 1.0.2, sts a capdeed onan ddaniviin Salah Laling samaowlaa wachiataadiate 1 IIR io: poceciiukn Soatecicdaadabedbscecedanie atantniecasadeaecnstasdudaasic teas 8 MINI 12. cs co atncradichtcncemmestunnodiaeas aie tatoneniecnLesaeaa ats 19 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, 17 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) 2 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 4 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). 5 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). 6 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 7 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 8 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). 9 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. 10 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. 11 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). 12 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), 13 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. 14 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). 15 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 * * *. See also Pet. App. 33a-34a. Petitioners contend that the regulatory scheme, which requires “forced” technology ™ and is unchecked by cost considerations, may result in the closing of portions of critical industries.* Petitioners’ quarrel 17 See Union Electric Co. v. EPA, 427 U.S. 246, 256-257 (1976) ; Train v. NRDC, 421 U.S. 60, 91 (1975). 18 As this Court has observed, however, there is some flexibility in the Act that may help to mitigate such eco- nomic consequences. Ambient standards are not directly ap- plicable to the affected industries; they must be translated into specific emission limitations by the states, which may apply 16 is not with the Administrator’s determination here, but with the statute enacted by Congress. Well aware of this possibility, Congress made a conscious decision that Congress, rather than the Administrator or the courts, must decide whether and how to alter the s, .t- utory scheme if basis public health needs should prove to conflict with an industry’s economic viability. See Pet. App. 35a-37a." Only if ambient standards are based on health considerations alone can those stand- ards provide Congress with a true picture of the health threat posed by a particular pollutant. St. Joe argues, however, that the Administrator may consider cost and technical feasibility in selecting a margin of safety, even if he may not do so in select- ing an ambient level requisite to protect public health. them in a phased manner so long as the ambient standards are attained on a timely basis. Section 110(a)(2) of the Act, 42 U.S.C. (Supp. II) 7410(a) (2). In developing these limitations, the states may consider economic and technical feasibility; such considerations are limited only by the re- quirement that the ambient standards be timely attained. See Union Electric Co. v. EPA, supra, 427 U.S. at 264. 19 As the court of appeals noted (Pet. App. 36a n.38), Con- gress has already acted to address such conflicts in particu- lar instances. Probably the most significant examples are the 1977 extension and relaxation of the automobile emissions standards (Section 202 of the Act, 42 U.S.C. (Supp. II) 7521), and the extension of the deadline for attaining the ambient standards (Section 172(a) of the Act, 42 U.S.C. (Supp. II) 7502(a)). Indeed, the lead industry itself has thus benefitted from congressional action through the non- ferrous smelter order provision that was added to the Act in 1977 (Section 119 of the Act, 42 U.S.C. (Supp. II) 7419). In certain circumstances, that Section provides for extensions to 10 years of a deadline for compliance with limitations necessary to meet the sulfur dioxide standard (Pet. App. 36a). Congress is generally expected to undertake a substan- tial reexamination of the Act in 1981. 17 This argument improperly assumes that the two de- cisions are separate and distinct; in fact, there is no such requirement, and the two decisions were not made separately here. See pages 13-14, supra. At all events, Congress clearly would have expressed its intention to permit the consideration of such factors for that purpose, given the fact that those factors are otherwise excluded from consideration under the statutory scheme, the entire thrust of which requires that standards be precautionary. As the court of appeals correctly found, however, there is no support for that argument in either the statute or its legisla- tive history (Pet. App. 32a). St. Joe’s argument is simply inconsistent with the margin of safety concept. Congress required a mar- gin of safety to assure that ambient standards would be precautionary, that is, that they would protect against “hazards which research has not yet identi- fied.” S. Rep. No. 91-1196, swpra, at 10. To require that the Administrator reduce the margin of safety that he would otherwise provide, because of cost or technical feasibility, would mean that the margin re- maining, if any, would no longer be a margin of safety.” 20 St. Joe’s suggestion (Pet. 8 n.7) that the Act may un- constitutionally delegate legislative power to the Administra- tor lacks merit because Congress carefully limited the Ad- ministrator’s discretion. The standard is to be based only on the scientific evidence contained in the Criteria Document required under Section 108 of the Act, 42 U.S.C. (Supp. II) 7408; the rulemaking must conform to the demanding proce- dures contained in Section 307(d) of the Act, 42 U.S.C. (Supp. II) 7607(d); and the standard must be strict enough to protect public health with an adequate margin of safety under Section 109(b) (1) of the Act, 42 U.S.C. (Supp. II) 7409(b) (1). Moreover, the Administrator has interpreted Section 109 to provide further criteria that constrain him in choosing an adequate margin of safety, including such factors 18 8. Finally, petitioners contend that certiorari should be granted because the Administrator did not make independent findings supporting the secondary standard that should be set. That contention also lacks merit. In setting the secondary standard, the Administrator must consider a range of public wel- fare factors, rather than merely those relating to public health. Frequently, public welfare considera- tions warrant a stricter secondary standard. Based on the evidence reported in the Criteria Document, and on his findings with respect to the primary standard, however, the Administrator here found that a more restrictive secondary standard was not necessary to protect the public welfare (Pet. App. 156a). In view of that finding, which went unchal- lenged during the rulemaking proceeding, the court below properly held this claim both insubstantial a and untimely * (Pet. App. 101a-103a). as the severity and reversibility of the health effects, the types of evidence and degree of uncertainty concerning known or suspected health effects, and the size of the population risk (Pet. App. 152a). 21 The court below distinguished the only case relied upon by LIA (Pet. App. 103a; citation omitted) : Our decision in Kennecott Copper, on which LIA relies, involved an attempt by the Administrator to set a sec- ondary standard which was more stringent than the primary standard without explaining the basis for this decision and it is therefore inapposite to the instant case. 22 Section 307 (d) (7) (B) of the Clean Air Act provides that “Tojnly an objection to a rule or procedure which was raised * * * during the period for public comment * * * may be raised during judicial review.” 42 U.S.C. (Supp. II) 7607 (d) (7) (B). See also Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-554 (1978). 19 CONCLUSION The petitions for a writ of certiorari should be denied. Respectfully submitted. WADE H. MCCREE, JR. Solicitor General JAMES W. MOORMAN Assistant Attorney General DONALD W. STEVER ANNE S. ALMY NANCY SOUTHARD BRYSON Attorneys DAVID O. BICKART Deputy General Counsel GERALD K. GLEASON Assistant General Counsel JAMES N. CAHAN Attorney United States Environmental Protection Agency NOVEMBER 1980 We ov. 8. GOVERNMENT PRINTING OFFice; 1980 332534 125 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0499%3A3. Public record. Not legal advice.