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

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OCF 24 1960

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1980

LEAD INDUSTRIES ASSOCIATION, INC.,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICUS CURIAE OF

AMERICAN MINING CONGRESS

David C. Branand

Senior Counsel

American Mining Congress

1920 N Street, N.W. Suite 300

Washington, D.C. 20036

(202) 861-2800 |

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October 24, 1980

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INDEX

Page

Description and Interest of Amicus Curiae......... 1

TG ia oi ck a p GARDE aecs Kedewdcudbses 2

I. Congress Expressly Recognized In The 1977

Amendments To The Clean Air Act That It Was

Not Anticipated That The Standards Would

Protect Against All Effects ................. 2

II. The Administrator’s Interpretation Of Section

109 Is Not Supported By The Legislative History 5

CI Soo cn tikudpeekKee ible etek ean bout 8

i

TABLE OF AUTHORITIES

CASES Page

Industrial Union Dep’t. v. American Petroleum

Inst., 100 S. Ct. 2844 (1980)................. 6, 8

STATUTES

Clean Air Act, as amended

Section 109, 42 U.S.C. §7409 .............. 3, 3,7

Section 160, 42 U.S.C. §7470 ............... 4

CONGRESSIONAL MATERIALS

1 LEGISLATIVE HISTORY OF CLEAN AIR ACT

AMENDMENTS OF 1970 ................. 7

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1980

No.

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

BRIEF AMICUS CURIAE OF

AMERICAN MINING CONGRESS

DESCRIPTION AND INTERESTS OF THE

AMICUS CURIAE

The American Mining Congress (AMC) is an industry

association that encompasses the producers of most of

America’s metal, coal, industrial and agricultural minerals;

the manufacturers of mining and mineral processing

machinery, equipment and supplies; and engineering and

consulting firms and financial institutions that serve the min-

ing industry. Included within this membership are lead pro-

ducers represented by Petitioner, the Lead Industries

Association Inc. (LIA). Also included within the AMC

membership are producers of other metals from ores which

2

contain lead. All of these producers may be forced to close

operations or to install air pollution control equipment to

avoid violating the National Ambient Air Quality Criteria

for lead.

AMC member companies are also subject to other emis-

sion limitations established to satisfy other National

Ambient Air Quality Standards such as those for sulfur ox-

ides and total suspended particulates. The criteria documents

for those pollutants are currently being revised by the Envi-

ronmental Protection Agency and consideration will be

given to establishing new national ambient air quality stan-

dards based on the revised documents. Unless the Court

exercises its discretionary jurisdiction to review the national

ambient air quality standard for lead EPA may proceed to

set other standards such as those for sulfur oxides and total

suspended particulates on the basis approved by the Court of

Appeals. Thus this case is of importance not only to AMC

members impacted by the lead standard. It is important to

all industry subject to requirements to meet other ambient

air standards.

ARGUMENT

The Court should exercise its discretionary jurisdiction to

review the decision of the Court of Appeals in this case. The

opinion of the Court of Appeals approves the adoption by

the Environmental Protection Agency of health standards

which are not based on health effects, but which are alleged-

ly necessary to protect against biologic response disruptions

in function which may be demonstrated by ‘“‘special testing

but not by the classic techniques of examination’’ (Peti-

tioner’s App. 11a). This goes beyond the intent of the Clean

Air Act.

I. Congress Expressly Recognized In The 1977 Amend-

ments To The Clean Air Act That It Was Not Antic-

ipated That The Standards Would Protect Against All

Effects

3

In affirmi. _; EPA’s interpretation of the statutory require-

ment to establish national primary ambient air quality stan-

dards which ‘‘allowing an adequate margin of safety are

requisite to protect the public health,’’ the Court of Appeals

improperly relied on legislative history and ignored the

express statutory recognition the Congress did not expect the

National Ambient Air Quality Standards to protect the

public health from all actual or potential effects which in the

Administrator’s judgment may reasonably be anticipated to

occur from air pollution.

Section 10%(b)(1) of the Clean Air Act as amended, 42

U.S.C. §7409(b)(1) provides for the promulgation of air

quality standards as follows:

(b)(1) National primary ambient air quality stan-

dards, prescribed, under subsection (a) shall be ambient

air quality standards the attainment and maintenance of

which in the judgment of the Administrator, based on

such criteria and allowing an adequate margin of safety,

are requisite to protect the public health. Such primary

standards may be revised in the same manner as prom-

ulgated.

LIA contended before the Court of Appeals that the prop-

er interpretation of that provision directed the Administrator

to adopt air quality standards which are ‘‘designed to protect

the public from adverse health effects that are clearly harm-

ful.’’ (Petitioner’s App. 38a) The Administrator contended

that the provision ‘“‘required that standards be set at a level at

which there is ‘an absence of adverse effect’ on these sen-

sitive individuals.’’ (Petitioner’s App. 43a)

The Court of Appeals rejected LIA’s position and accept-

ed the Administrator’s interpretation citing in support of this

action that ‘‘[{tJhe Senate Report explains that the Adminis-

trator is to set standards which ensure that there ‘is an

absence of adverse effects.’ ’’ This action ignores that with

the adoption of 1977 amendments to the Clean Air Act Con-

4

gress repudiated the language of the Senate Report with the

express recognition that the national ambient air quality

standards are not to provide protection from all actual or

potential effects.

This recognition is contained in Section 160 of the Clean

Air Act as amended, 42 U.S.C. Section 7470. That section

was added by the the 1977 amendments and sets forth the

purposes for the new Part C, Prevention of Significant

Deterioration of the Air Quality. The portion relevant to this

discussion is as follows:

Sec. 160. The purposes of this part are as follows:

(1) to protect public health and welfare from any

actual or potential adverse effect which in the

Administrator’s judgment may reasonably be

anticipated to occur from air pollution or from

exposures to pollutants in other media, which

pollutants originate as emissions to the ambient

air), notwithstanding attainment and maintenance

of all national ambient air quality standards;....

Thus, Congress expressly recognized that the ambient air

quality standards were not to be set at a level to ensure that

there is ‘‘an absence of adverse effects’’ as asserted by the

1970 Senate Report. Congress indicated that the Administra-

tor could reasonably anticipate that actual or potential

adverse effects would occur notwithstanding the attainment

and maintenance of all national ambient air quality stan-

dards. If the Administrator was required to set standards

which ensure an absence of adverse effects such a situation

could not exist.

The Clean Air Act therefore does not require that national

primary ambient air quality standards be established to

ensure an absence of effects. Congress expressly stated that

effects might be reasonably anticipated despite attainment of

the standards. Since Congress did not intend to mandate

standards to protect against all effects, it is only reasonable

5

to conclude that Congress intended that the national primary

ambient air quality standards be designed to protect the

public from adverse health effects that are clearly harmful.

This was the position asserted by LIA.

The Court of Appeals erred in holding that ‘‘LIA’s inter-

pretation of the statute is at odds with Congress’ directives to

the Administrator.’’ (Petitioner’s App. 43a) The supposed

directives in the legislative history such as the Senate Report

do not surmount the express statutory recognition by Con-

gress that effects may reasonably be anticipated

notwithstanding attainment and maintenance of the national

standards. Thus national primary ambient air quality stan-

dards are not to be set at the no effect level.

Il. The Administrator’s Interpretation of Section 109 Is

Not Supported By The Legislative History

This Court has not ruled upon the proper interpretation of

Section 109. If it does not exercise its discretionary authority

to do so now the opinion below will be controlling on both

future and past standard setting by the Administrator.

As set forth above Section 109 provides that national

primary ambient air quality standards shall be standards the

attainment and maintenance of which ‘‘are requisite to pro-

tect public health.’’ They are to be based on the criteria

document and allow ‘‘an adequate margin of safety.”’

The Administrator contended, as set forth in the opinion

below (Petitioner’s App. 43a) that Congress directed as

follows:

First, Congress made it abundantly clear that con-

siderations of economic or technological feasibility

are to be subordinated to the goal of protecting the

public health by prohibiting any consideration of

such factors. Second, it specified that the air quali-

ty standards must also protect individuals who are

particularly sensitive to the effects of pollution.

Third, it required that the standards be set at a

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level at which there is ‘‘an absence of adverse

effect’’ on these sensitive individuals. Finally, it

specifically directed the Administrator to allow an

adequate margin of safety in setting primary air

quality standards in order to provide some protec-

tion against effects that research has not yet un-

covered.

Examining these directions in light of the statutory

language it can only be concluded that Congress did not

specifically direct the Administrator to act in any of the ways

set forth. First, the statute is silent about considerations of

economic or technological feasibility. Second, the statute

requires standards to protect public health. It is silent as to

the definition of public health and makes no mention of

individuals who are particularly sensitive to the effects of

pollution. Third, the statute makes no mention of ‘‘an

absence of adverse effect.’’ Finally, the statute does require

an adequate ‘‘margin of safety’’ but makes no reference to

requiring that margin ‘‘to provide some protection against

effects that research has not yet uncovered’’: The asserted

directives are the Administrator’s interpretation of the

statute and the legislative history. While deference to an

agency’s construction of the statute is appropriate as dis-

cussed by the Court of Appeals (Petitioner’s App. pp.

29a-30a) this Court does not always approve that construc-

tion, for example, Jndustrial Union Dep’t. v. American

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

The Court of Appeals did discuss the basis for the first

asserted directive with respect to consideration of economic

and technological feasibility, but discussion of the basis

from the other asserted directives appears to be limited to the

statement that ‘“The Senate Report explains that the Admin-

istrator is to set standards which ensure that there is ‘an

absence of adverse effects.’ ’’ A full examination of the

legislative history reveals that reliance on the Senate Report

is misplaced. The report does state that in setting the

7

standard consideration should be given to ‘‘the need for

margins of safety’’ and that the standard is sufficient to pro-

tect such persons whenever there is an absence of adverse

effect on the health of a statistically related sample of per-

sons in sensitive groups from exposures to ambient air.’’ 1

LEGISLATIVE HISTORY OF CLEAN AIR ACT

AMENDMENTS OF 1970 at 409 & 410 (Senate Report on

S. 4358 No. 91-1196) (hereinafter Legis. Hist.) That report

related to the bill, S. 4358, as reported by the Senate Com-

mittee on Public Works. The language of the bill was

significantly different than that contained in the 1970

amendments as adopted. The bill as reported required as

follows (Legis. Hist. 542 & 543):

National ambient air quality standards, propos-

ed and promulgated pursuant to paragraphs (1)

and (2) of this subsection, shall be ambient air

quality standards the attainment and maintenance

of which are necessary to protect the health of per-

sons. Such standards shall be revised, as necessary,

in the same manner as promulgated.

Section 109 contained in the 1970 amendments as enacted

required standards ‘‘requisite to protect the public health’’

or the health of the community at large. The Senate Report

on the other hand refers to legislative standards necessary to

‘“‘protect the health of persons’’ or individuals. In setting

standards to protect persons or individuals it may be appro-

priate to ensure an absence of adverse effect, but the pro-

tection of the public health is a different concern and it is

inappropriate to cite the Senate Report on S. 4358 as

definitive on setting standards to protect the public heaith.

The 1970 amendments also included the statutory require-

ment for allowance of an ‘‘adequate margin of safety’’.

S. 4358 as reported was silent on this issue. The Senate

Report did make reference to margin of safety but that

discussion should not be considered controlling as it does not

8

address the final language of the 1970 amendments. The

significance is that Congress found it necessary to require in

the development of the standards requisite to protect tne

public health a requirement for a margin of safety. As this

Court recently discussed ‘‘ ‘ safe’ is not the equivalent of

‘risk free’ ’’ and ‘‘a workplace can hardly be considered ‘un-

safe’ unless it threatens workers with a significant risk of

harm’’. Industrial Union Dept. v. American Petroleum

Inst., supra 2864. Applying this concept to Section 109 it can

be concluded that if safe does not equal risk free then the

imposition of the requirement to allow a margin of safety

means the Congress did not intend the National primary

ambient air quality standards to ensure ‘‘an absence of risk’’

but intended that those standards protect against a signifi-

cant risk of hiarm.

Petitioner LIA asserted a similar interpretation of Section

109 before the Court of Appeals. LIA asserted that stan-

dards should be designed to protect against effects which are

known to be clearly harmful to health. The Court of

Appeals rejected this interpretation as being ‘‘at odds with

Congress’ directives to the Administrator’’ (Petitioner’s

App. 43a). A comprehensive review of what Congress’ direc-

tives were should be made by this Court.

CONCLUSION

For the foregoing reasons, the petition for a writ of certio-

rari should be granted.

Respectfully submitted,

David C. Branand

Senior Counsel

American Mining Congress