Petitioners Reply Brief — Lead Industries Ass'n v. Environmental Protection Agency

ES Py I Re a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

LEAD INDUSTRIES ASSOCIATION, INC.,

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition For A Writ Of Certiorari To The United States Court

Of Appeals For The District Of Columbia Circuit

REPLY OF LEAD INDUSTRIES ASSOCIATION,

INC, TO BRIEF OF ENVIRONMENTAL

PROTECTION AGENCY

EpwIn H. SEEGER

PRATHER SEEGER DOOLITTLE & FARMER

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 296-0500

Attorney for Petitioner

November 24, 1980 Lead Industries Association, Inc.

A

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

TABLE OF AUTHORITIES

CASES: PAGE

Industrial Union Dep’. v. American Petroleum Inst.,

rr 20 200 to eek ee ede edhe 2, 4

STATUTES:

Clean Air Act, as amended

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CONGRESSIONAL MATERIALS:

H. R. Rep. No. 95-294, 95th Cong., Ist Sess. 43-49

Degraw teas Gua saines oo deddekede bAbad o% 0 2

Hearings on S. 251, S. 252 and S. 253 Before Subcomm.

on Environmental Pollution of Senate Comm. on

Environment and Public Works, 95th Cong., Ist

— me FP fa ere 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-482

LEAD INDUSTRIES ASSOCIATION, INC.,

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition For A Writ Of Certiorari To The United States Court

Of Appeals For The District Of Columbia Circuit

REPLY OF LEAD INDUSTRIES ASSOCIATION,

INC. TO BRIEF OF ENVIRONMENTAL

PROTECTION AGENCY

The Government contends in its brief in opposition

to LIA’s petition for certiorari that Congress has left

health determinations entirely to the Administrator’s

judgment, and the Administrator does not have to make

‘*significant risk’’ findings, similar to those that must be

made under the Occupational Safety and Health Act, in

order to justify a health standard. We will show below

that the Government is wrong on these counts, and in its

further contention that the Administrator in any event

made findings equivalent to those that would be required

under the ‘‘significant risk’’ test. Further, the Govern-

ment’s claim that the Administrator has virtually un-

bridled discretion in the setting of health standards

7%

-f

2

presents precisely the same overbroad claim of ad-

ministrative agency power that led the Court to overturn

OSHA’s benzene standard, /ndustrial Union Dep’t v.

American Petroleum Inst., 100 S.Ct. 2844 (1980).

Hence, the Government’s brief merely lends further

weight to LIA’s contention that there is urgent need for

the Court to hear this case and to issue a decision defin-

ing EPA’s standard-setting powers under Section 109 of

the Clean Air Act.

1. LIA’s petition for certiorari points out that there

is language in the legislative history of the Clean Air Act

stating that a// EPA regulations concerning public health

protection must be designed to prevent ‘‘significant risk

of harm’’ (Petition, p. 11 n. 8; see H.R. Rep. No.

95-294, 95th Cong., Ist Sess. 43-49 (1977)). Nowhere

does the Government’s brief attempt to rebut this point,

nor does it at any time even refer to the cited legislative

history passages. Accordingly, the Government has pro-

vided no basis for its contention that there is no require-

ment in the Clean Air Act comparable to that in the Oc-

cupational Safety and Health Act that health standards

be predicated on findings of ‘‘significant risk’’ and its

further contention that the Court’s decision in the

Benzene case is therefore not in point.

While the foregoing should make it clear that the

same test applies under both statutes, it is also the case

that the Government’s effort to distinguish between the

statutes insofar as the setting of health standards is con-

cerned proves nothing. Certainly, the statutes are dif-

ferent in their details, but the concept that the setting of

health standards involves a balancing of the need to pro-

tect the public health with the need to maintain a strong

economy applies under the Clean Air Act no less than

under the Occupational Safety and Health Act. As

3

Senator Muskie stated during the hearings preceding

enactment of the 1977 Amendments, Congress intended

to set national standards only at levels necessary to pro-

tect against ‘“‘unacceptable risks,’’ and intended ‘‘to in-

sure that public policy is wise policy, that we are protec-

ting health and not overprotecting it, to the degree of in-

hibiting economic growth and the opportunities people

need in order to enhance their lives.’’ Hearings on S.

251, S. 252 and S. 253 Before Subcomm. on En-

vironmental Pollution of Senate Comm. on Environment

and Public Works, 95th Cong., Ist Sess., Part 3 at 6-7

(1977); see also remarks of Senator Muskie during the

debates on the 1977 Clean Air Act Amendments quoted

at pages 15-16 of LIA’s petition (national primary stan-

dards ‘‘are not clean air standards’? but are ‘‘the

minimal burden we could impose on the dirty air areas

of the country to clean up without bringing their

economies to a screeching halt. *** Even at the national

primary standard level, which is the health standard,

there are health effects which are not protected

against’’).

The clear intent of Congress that EPA’s health

standards are to be designed to prevent ‘‘significant

risk’? of harm to health and that no effort should be

made to eliminate all health effects but only those that

are clearly adverse has been ignored by the Ad-

ministrator. And since health standards are the very cor-

nerstone of the Clean Air Act, there is an important

need for a decision by the Court setting guidelines for

the exercise of the Administrator’s powers under Section

109 of the Act.

2. The Government contends that even if the Ad-

ministrator’s findings must meet the ‘‘significant risk’’

test, he in fact made findings on health impairment that

4

meet the test and these findings ‘‘are supported by

reputable scientific thought’’ (Government Brief, p. 10).

The latter quote is supposedly taken from the Court’s

Benzene decision, but it is actually a misquote. The

Benzene decision states that significant risk determina-

tions must be based on ‘‘a body of reputable scientific

thought,’’ 100 S.Ct. at 2871 (emphasis supplied), and as

LIA’s petition points out, the Administrator’s view that

adverse health effects may occur in children at blood

lead levels below 40 micrograms per deciliter (ug/dl) was

supported at EPA’s hearings by only three medical

witnesses none of whom was able to state in what way

children suffer health impairment at those blood lead

levels.

Moreover, there is no basis for the Government’s

contention that the Administrator made clear-cut find-

ings that children suffer harm at blood lead levels lower

than 40 ug/dl, and as low as 30 ug/dl. As LIA’s petition

points out at page 7, the Administrator’s findings

concerning health effects at blood lead levels below 40

ug/dl were inconsistent and were couched in such vague

terms as ‘‘potentially adverse’ and ‘‘not without health

significance.”’

The Government’s brief cites two sources for the

proposition that the Administrator’s findings meet the

concerns expressed by the Court in the Benzene case

(Government Brief, p. 11). One citation is to the decision

of the court of appeals, which was rendered prior to the

Court’s Benzene decision and hence did not address itself

to the issues raised in Benzene. Moreover, as LIA’s peti-

tion points out at page 13, the court of appeals was

never able to point to any clearcut findings by EPA’s

Administrator of health impairment at blood lead levels

lower than 40 ug/dl.

5

The second citation is to the preamble to EPA’s

lead standard regulation (Appendix, pp. 141a-145a). LIA

would invite the Court’s attention to the cited passages,

for nowhere in them is there a single finding that would

indicate that children suffer a significant risk of health

impairment — much less an explanation of the nature of

such impairment — at blood lead levels below 40 ug/dl.

To the contrary, the cited passages clearly state that the

health effect with which EPA is supposedly concerned,

heme synthesis impairment, does not occur ‘“‘until a

threshold of 40 ug Pb/dl is reached’’ (Appendix, p.

142a). Moreover, EPA has not explained in the cited

passages or anywhere else why such impairment should

be regarded as adverse to health even at that blood level.

Ultimately, the Government is driven to quoting at

page 9 of its brief a statement by the court of appeals

that the Administrator must design health standards so

as ‘“‘to protect against effects which have not yet been

uncovered by research’? (Appendix, p. 45a). Clearly,

there is no way to reconcile the concept that the Ad-

ministrator is free to guess about the future course of

medical research with the requirement that health stan-

dards must be designed to prevent ‘‘significant risks.’’

3. The Government contends that the Administrator

did not adopt multiple margins of safety, but simply

made a series of ‘‘scientific judgments’? based on ‘‘the

best available evidence’’ (Government Brief, p. 13). The

short answer to that point is that if EPA’s Administrator

establishes a blood lead goal for children at a level below

that needed to prevent significant risk of harm to health,

and then develops an air lead standard to meet the goal

by making excessively conservative assumptions at each

phase of the calculation process, whether one uses the

term ‘‘multiple margins of safety’? or ‘‘scientific

6

judgments”’ the result is the same — an ambient air

standard that is far more stringent than is necessary to

protect against significant risks.

Respectfully submitted,

EpwIn H. SEEGER

Attorney for Petitioner

Lead Industries Association, Inc.

November 24, 1980