# Amicus Brief — 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%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1042 ## Text i “ Nos. 80-482 and 80-483 Nov 7 MICHAEL RODAK IR | IN THE Supreme Court of the United States OctToBeR TERM, 1980 Leap InpustRies AssocraTion, Inc., Petitioner, vi ENVIRONMENTAL Protection Acency, Respondent. St. Jor MINERALS Corporation, Petitioner, v. 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 OF THE NATIONAL COAL ASSOCIATION AS AMICUS CURIAE Ropert F. STAUFFER General Counsel National Coal Association 1130 17th Street, N. W. 9th Floor Washington, D. C, 20036 202-463-2625 November 7, 1980 Paess or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C, TABLE OF CONTENTS Page Tue Interest or tHE Nationat Coat AssociaTION .... 2 ke ales pinks dens bias 3 ROO og oc wks 0.0s-00 benee cod eweneeeeeneeee eee 10 TABLE OF AUTHORITIES CasEs: Industrial Union Dep’t, AFL-CIO v. American Petro- leum Institute, 100 S. Ct. 2844 (1980) ......... 9 STATUTES: Clean Air Act, as amended Section 109, 42 U.S.C. $7409 ......cccececceves 6 Section 100, 42 UB.C. § 7470 ..ccccccessscccces 8 LEGISLATIVE MATERIALS: Senate ComMITree ON Pusiic Works, A LEGISLATIVE History or THE CLEAN Arr Act AMENDMENTS OF 1970, 938d Cong., 2d Sess. (1974) .............. 4, 5, 6 S. Rep. No. 95-127, 95th Cong., Ist Sess. (1977) ...... 5 H.R. Rep. No. 95-294, 95th Cong., Ist Sess. (1977) ... 5,8 Hearings on S. 251, S. 252 and S. 253 Before Sub- comm. on Environmental Pollution of Senate Comm, on Environment and Public Works, 95th Comm, 20 Geek, Fat S CRs) Kivicscvescesies 7,8 Congressional Record 123 Cong. Rec. H4942 (daily ed. May 24, 1977) ...... 6 123 Cong. Rec. H494% (daily ed. May 24, 1977) ...... 6 123 Cong. Rec. H4944 (daily ed. May 24, 1977) ...... 5 123 Cong. Rec. H4950 (daily ed. May 24, 1977) ...... 6 123 Cong. Rec. 89191 (daily ed. June 8, 1977) ....... 8 123 Cong. Ree. $9197 (daily ed. June 8, 1977) ....... 6 123 Cong. Rec. 89423 (daily ed. June 10, 1977) ...... 8 ™“ Nos. 80-482 and 80-483 IN THE Supreme Court of the United States OctToBER TERM, 1980 Leap Inpustries AssociATION, INc., Petitioner, Ve ENVIRONMENTAL PROTECTION AGENCY, Respondent. St. JozE MINERALS CorporaTION, Petitioner, v. 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 OF THE NATIONAL COAL ASSOCIATION AS AMICUS CURIAE The National Coal Association (NCA) respectfully tenders this brief as amicus curiae for consideration by the Court. NCA supports the positions presented by the Lead Industries Association, Inc. (LIA) and St. Joe Minerals Corporation, and urges the Court to grant certiorari and reverse the judgment of the United States Court of Appeals for the District of Columbia Circuit. ry, 2 THE INTEREST OF THE NATIONAL COAL ASSOCIATION The membership of the National Coal Association consists primarily of coal producing and sales com- panies, whose operations comprise more than half of the commercial production in the United States. In addition, the Association numbers among its member- ship equipment manufacturers, railroads, coal ex- porters, consultants and other related industries. This case is of major importance to the coal indus- try and to other industries represented by NCA in ad- dition to the lead industries represented by petitioners. The national ambient air quality standards for lead, upheld by the court below, are based upon an exces- sively broad construction of EPA’s statutory duty to set such standards only at the level requisite to protect public health. Under this construction, EPA has adopted standards designed to protect against a bio- logical response not shown to be harmful to health. As a result, up to 80 percent of the nation’s lead production capacity may be eliminated in an attempt to achieve an illusory health benefit. EPA is presently considering revision of ambient air quality standards for sulfur oxide and total sus- pended particulate as they relate to human health, standards to which many NCA members are subject. If the opinion below is allowed to stand, and EPA proceeds to set these and other future standards on the same basis as the lead standard, unnecessary dam- age to the coal industry and other industries may result. Thus, the Court’s decision in this case will directly affect the coal industry and many other U.S. industries as well. 3 ARGUMENT By upholding the lead standard, the opinion below allows EPA to set national ambient air quality stan- dards on the basis of biological responses not shown to be adverse to health, in contravention of congres- sional intent. The Court should therefore exercise its discretionary jurisdiction to hear this case and should reverse the judgment of the Court of Appeals. As explained in the petition of the Lead Industries Association, EPA’s 1.5 ug/m’® air lead standard is designed to ensure maintenance of blood lead levels at or below 30 ug/dl (LIA Pet., p. 7). The 30 ug/dl level is aimed at protection against erythrocyte pro- toporphyrin (EP) elevation, a biological response as- sociated with lead (id. at pp. 3, 7). EPA expressed ‘‘concern’’ about EP elevation at 30 ug/dl because of evidence that anemia, the major adverse health effect associated with lead, may occur at blood lead levels above 40 ug/dl (1d. at pp. 7-8). However, EPA was never able to explain how EP elevation at 30 ug/dl is adverse to health. Indeed, the Agency did not even find that anemia actually occurs at 40 ug/dl. Rather, EPA simply stated that its 1.5 ug/m’ standard was necessary to protect the public health with an adequate margin of safety (Pet. App., p. 118a).’ The Agency acknowledged that the standard might force closure of lead smelters accounting for up ‘LIA has pointed out that the lead Criteria Document contains substantial evidence indicating that anemia occurs only at blood lead levels above 40 ug/dl, and that this level may be considered a safe blood lead threshold, including an adequate margin of safety (LIA Pet., p. 8 & n. 7). As LIA also notes, EPA added cumula- tive, multiple margins of safety in addition to any such margin contained in the chosen blood lead threshold (LIA Pet., pp. 17-20). 4 to 80 percent of total U.S. lead production capacity, but stated that Congress did not intend economic con- siderations to play any role in the setting of national primary standards (LIA Pet., p. 6; Pet. App., p. 118a). The Court of Appeals upheld EPA’s standard, stating that Congress intended EPA to set standards at levels ensuring ‘‘an absence of adverse effect,’’ that Congress conferred upon EPA ‘broad discretion .. . to decide what effects to protect against,’’ and that Congress clearly intended to preclude any considera- tion of the economic consequences of such standards (Pet. App., p. 48a). It cannot be disputed that protection of the public health is the major goal of the Clean Air Act. How- ever, in enacting the 1970 and 1977 Amendments to the Act, Congress intended to strike a reasonable balance between the need to protect public health and the need for continued industrial productivity and growth. Senator Gurney succinctly stated the problem during the Senate debate on the 1970 Amendments: The problem, as I see it, is one of balancing: How can we develop standards and procedures and con- trols which will reduce significantly the present level of air contamination, while at the same time not causing a severe economic dislocation.’ Senator Randolph voiced similar concerns: I feel that if we can achieve the objectives in the hoped-for time period, we would control and abate ioleg ’s air pollution and also prevent in part the 2? SENATE COMMITTEE ON PuBLIC Works, A LEGISLATIVE HisToRY oF THE CLEAN Air Act AMENDMENTS OF 1970, 93d Cong., 2d Sess. 291 (1974) [hereinafter referred to as 1970 Legis. Hist.]. 5 occurrence of future air pollution problems, and we would do so reasonably and realistically with- out doing violence to legitimate and necessary business. 1970 Legis. Hist. at 286; see 1970 Legis. Hist. at 111 (remarks of Rep. Staggers) (Act designed to ‘‘do what is feasible and what is reasonable’’). Congress reiterated these concerns in enacting the 1977 Amendments. Both the Senate and the House bills were designed to ensure consideration of economic as well as public health needs. See 8S. Rep. No. 95-127, 95th Cong., Ist Sess. 2 (1977); H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 34 (1977). As Representative Rogers stated during the House debate: Clearly, continued strong action is needed to pro- tect the public health and welfare. But it is oe, clear that over the past few years our nation has been beset by serious eco- nomic and energy problems, These factors have presented a new challenge requiring a midcourse correction in the 1970 Clean Air Act; corrections which will help assure our nation’s continued eco- nomic growth and vitality. 123 Cong. Rec. H4944 (daily ed. May 24, 1977). Senator Hatch best expressed the problem on the Sen- ate side: [I]f there is a conflict between the demands of clean air and those of economic development, the claims of pure air should not be considered auto- matically superior. Instead, a balance must be reached which will permit both the protection of air quality and the reasonable demands of the economy. We must not become rigidified into mak- 6 ing a fetish of the cleanliness of the environment. 123 Cong. Rec. 89197 (daily ed. June 8, 1977).’ Thus, in enacting the 1970 and 1977 Clean Air Act Amendments, Congress clearly intended to strike a reasonable balance between the nation’s needs for pub- lic health protection and continued industrial vitality. Instead of relying upon EPA to determine directly how much industry could afford to spend on air pollu- tion control, however, Congress placed the key to this delicate balance in EPA’s determinations of the sig- nificance of health risks. The 1970 Amendments di- rected EPA to set national primary ambient air qual- ity standards at levels which, ‘‘allowing an adequate margin of safety, are requisite to protect the public health’’ (42 U.S.C. § 7409(b)(1)).* The Senate Re- port stated that ‘‘[a]mbient air quality is sufficient to protect the health of ... persons wherever there is an absence of adverse effect on the health of a statistically related sample of persons in sensitive groups... .”’ 1970 Legis. Hist. at 410. The Report further indicated that the Senate Committee’s. concerns were directed toward protection against ‘‘direct adverse effects upon public health.’’ 1970 Legis. Hist. at 401. Thus, EPA was to confine its standard-setting efforts to protection against real harm, because protection against effects not shown to be directly adverse might result in un- necessary economic disruption. * See also 123 Cong. Rec. H4942 (daily ed. May 24, 1977) (re- marks of Rep. Meeds), H4942-43 (remarks of Rep. Quillen), H4950 (remarks of Rep. Waxman). * In contrast, national secondary standards are to be set at levels ‘*requisite to protect the public welfare from any known or antici- pated adverse effects’’ (42 U.S.C. § 7409(b) (2) ). 7 This policy was confirmed during the hearings and debates preceding enactment of the 1977 Amendments. Senator Muskie, a principal author of both the 1970 and 1977 Amendments, repeatedly stated that some health effects might exist at levels below national standards, but that economic considerations precluded protection against such effects: And in response to... the best evidence we could et, we set standards for two purposes: First, to etermine whether or not things as they were im- posed unacceptable risks upon our people; and second, at what level we ought to hold further deterioration of the air to prevent its spread. That is what the 1970 Act was. We continue to try to take measurements on both of these points to insure that public policy is wise policy, that we are protecting health and not overprotecting it, to the degree of inhibiting economic growth and the opportunities people need in order to enhance their lives.... Our public health scientists and doctors have told us that there is no threshold, that any air pollu- tion is harmful. The Clean Air Act is based on the assumption, although we knew at the time it was inaccurate, that there is a threshold. When we set the standards, we understood that below the stan- dards that we set there would still be health ef- fects, The standard we picked was simply the best judgment we had on the basis of the available evi- dence as to what the unacceptable health effects in terms of the country as a whole would be. Hearings on 8. 251, S. 252 and S. 253 Before Subcomm, on Environmental Pollution of Senate Comm. on Environment and Public Works, 95th Cong., 1st Sess., Part 3 at 6-7, 8 (1977) (emphasis supplied). Thus, national standards were intended to be ‘‘mini- mal standards’’ designed to ‘‘achieve a realistic goal 8 for cleanup in dirty air areas . . . without bringing their economies to a screeching halt.’’ Id. at 37; see 123 Cong. Rec. $9423 (daily ed. June 10, 1977) (re- marks of Sen. Muskie) (primary standards are ‘‘min- imal’’ standards; even at primary standard level there are health effects not protected against).° Congress further indicated in 1977 that national primary standards were not intended to protect against all health effects by enacting provisions de- signed to prevent significant deterioration of air qual- ity in clean air areas (42 U.S.C. § 7470 et seq.). The first listed purpose of these ‘‘PSD”’ provisions is: (1) to protect public health and welfare from any actual or potential adverse effect which in the Administrator’s judgment may reasonably be an- ticipated 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; . (42 U.S.C. § 7470(1)) (emphasis supplied). The House Report explains that the PSD provisions are intended, in part, ‘‘to protect public health from harmful exposures to air pollutants occurring at levels below the minimum national ambient air standards.”’ H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 8, 141 (1977) ; see 123 Cong. Rec. 89191 (daily ed. June 8, 1977) (remarks of Sen. Muskie). In short, in enacting the 1970 and 1977 Amendments to the Clean Air Act, Congress intended to establish *> Senator Muskie’s remarks are quoted at pp. 15-16 of LIA’s Petition. 9 an overall regulatory scheme designed to ensure a reasonable balance between public health protection and continued industrial vitality. EPA was directed to determine reasonable ‘‘thresholds’’ of significant health risk, and to set national standards protecting against such risk. Cf. Industrial Union Dept., AFL- CIO v. American Petroleum Institute, 100 S. Ct. 2844 (1980) (OSHA must set occupational health stan- dards to prevent ‘‘significant’’ risk, not all risk, of harm).° Although Congress was aware that some health effects might exist below these threshold levels, it nevertheless chose this approach as the best method of protecting against significant health risks without causing unreasonable industrial interference. By designing the lead standards to protect against a biological response not shown to be harmful to health, EPA has disrupted this regulatory scheme and tipped the balance in favor of excessive regulation. The lead industry maintains that the result may be the virtual destruction of this country’s lead smelting in- dustry. EPA’s discretion to take such action must be limited now to prevent the coal industry and other industries from potentially suffering a similar fate. *In its Petition, LIA notes that Congress specifically adopted the ‘‘significant risk’’ approach in enacting the 1977 Amendments to the Act (p. 11 n. 8). See also p. 9, supra (remarks of Sen. Muskie). 10 CONCLUSION The Court should exercise its discretion to grant certiorart in this case and should reverse the judg- ment of the Court of Appeals. Respectfully submitted, Rosert F. STaAvFFER General Counsel National Coal Association 1130 17th Street, N. W. 9th Floor Washington, D. C. 20036 202-463-2625 November 7, 1980 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0499%3A6. Public record. Not legal advice.