Petition — St. Joe Minerals Corp. v. Environmental Protection Agency (Nos. 80-483, 80-482)

80-488 [LT

No. 80- SEP 25 1980

| MICHAEL RODAK, JR. CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

ST. JOE MINERALS CORPORATION,

Petitioner,

¥;

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

JOHN MCN. CRAMER

REED SMITH SHAW & MCCLAY

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

(412) 288-3131

LEE A. Rau

(Attorney of Record)

Robert A. Emmett

Daniel A. Masur

Reed Smith Shaw & McClay

1150 Connecticut Avenue, N.W.

Suite 900

Washington, D.C. 20036

(202) 457-6100

Attorneys for Petitioner

September 25, 1980 St. Joe Minerals Corporation

AA TORN NT OTOL, RI eee

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

QUESTIONS PRESENTED

1. Whether in establishing primary national ambient

air quality standards under Section 109(b)(1) of the

Clean Air Act, the Administrator of the Environmental

Protection Agency must consider the impact of a

standard on the ‘‘public . . . welfare and the productive

capacity of [the Nation’s] population’”’ in determining

the ‘‘adequate margin of safety’’ to be imposed beyond

the limit which is ‘‘requisite to protect the public

health.’’

2. Whether the Administrator must separately

delineate the limit which is ‘‘requisite to protect the

public health’? from the additional allowance to be

made for ‘‘an adequate margin of safety’’ to a.care his

rational consideration of the differing factors relevant to

each determination and to provide an adequate basis for

judicial review.*

* In addition to St. Joe Minerals Corporation, the Lead In-

dustries Association, Inc. (LIA) was a petitioner in the Court of

Appeals. LIA has filed a separate petition for a writ of certiorari in

this Court. Respondent in the Court of Appeals was the En-

vironmental Protection Agency (EPA). The Bunker Hill Company

was an intervenor. The Natural Resources Defense Council, Inc.

and the Air Resources Board of the State of California participated

as amici curiae.

TABLE OF CONTENTS

PAGE

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REASONS FoR GRANTING THE WRIT ...............005. 7

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TABLE OF AUTHORITIES

CASES: PAGE

American Petroleum Institute v. Costle, C.A. No.

eG e Lancs ke vere sccscccesece 13

American Trucking Associations, Inc., v. Atchison,

Topeka & Santa Fe Ry., 387 U.S. 397............. 10

Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C. Cir. 1974) . 3

Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir.

Sin ascoccecevenesecsccas 12

Association of American Railroads v. Costie, 562 F.2d

IE, OD acc cccsseccvenccccces 10

Burlington Truck Lines v. United States, 371 U.S. 156.. 12

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

ee a sina cca dacersvecieccpecces 12

Dry Colors Mfrs. Assoc. v. Department of Labor, 486

ES UD, oo ccc cnc cccccccccccces 12

Environmental Defense Fund v. Ruckelshaus, 439 F.2d

SCS TED on capo ce vccccccecccccccene 12

Ethyl Corp v. EPA, 541 F.2d 1 (D.C. Cir. 1976) (en

banc), cert. denied, 426 U.S. 941 ................ 3, 12

FTC v. Fred Meyer, Inc., 390 U.S. 341 ............... 10

Industrial Union Dep’t, AFL-CIO vy. American

Petroleum Institute, vo. , 65 L.Ed

es. kbs beet eeneveces 8, 10, 11

Table of Authorities Continued

CASES: PAGE

Lehigh & New England Ry. Co. v. ICC, 540 F.2d 71 (3d

Cir. 1976), cert. denied, 429 U.S. 1061 ............. 10

Lubrizol Corp. v. EPA, 562 F.2d 807 (D.C. Cir. 1977).. 10

Natural Resources Defense Council, Inc. v. Train, 411

F.Supp. 864 (S.D.N.Y.), aff'd, 545 F.2d 320 (2d

ee Nes coi Vea d a oak KEE ORR ARS a nes

Panama Refining co. v. Ryan, 293 U.S. 388 ..........

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375

(D.C. Cir. 1973), cert. denied, 417 U.S. 921 ....... 12

Schechter Poultry Corp. v. United States, 295 U.S. 495. 8

STATUTES:

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Air Quality Act:

Pe A UTD oo cb cca v ote ticecovcneewanas 9

Clean Air Act:

42 U.S.C. §7401(b)(1), Section 101(b)(1).............. 2, 10

SA, ID UE ois Sok ad aie v riatn veep aces 3

42 U.S.C. $7409(6), Section 109(B) ..........eccccvees

42 U.S.C. §7409(b)(1) (Supp. I 1977), Section

| A Se errr rrert Ter rr Tree, 2, 8, 10

42 U.S.C. §7607(b)(1) (Supp. I 1977), Section 307(b)(1) . 14

CONGRESSIONAL REFERENCES:

S. Rep. No. 90-403, 90TH CONG., IST SEss. 28 (1967).... 9

S. Rep. No. 91-1196, 91st CoNnG., 2p SgEss. 10 (1970).... 8

H.R. Rep. No. 95-294, 95TH ConG., Ist Sess. 112

Ec foetus U eel eescd seen ek aacoeae is < 9, 10

A Legislative History of the Clean Air Amendments of

1970, 93rd Cong. 2d Sess. (1974) .............005. 8,9

A Legislative History of the Clean Air Act Amendments

of 1977, 95th Cong. 2d Sess. (1978).............. 9, 10

iit

Table of Authorities Continued

RULES AND REGULATIONS:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-

St. JOE MINERALS CORPORATION,

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

—_——_— ——_ ——_——

OPINIONS BELOW

The opinion and judgment of the Court of Appeals

for the District of Columbia Circuit is not yet officially

reported and is set forth in the separately bound Appen-

dix to this petition as Appendix A. The Environmental

Protection Agency’s (EPA) final regulation and state-

ment of basis and purpose are published at 43 Fed. Reg.

46246 (1978), and are also set forth in the separately

bound Appendix as Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered

on June 27, 1980. The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. §1254(1).

2

STATUTE INVOLVED

The pertinent part of Section 109 of the Clean Air

Act (Act) provides (42 U.S.C. §7409(b)(1) (Supp. I

1977)):

National primary ambient air quality standards

. shall be ambient air quality standards the at-

tainment 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... .

Section 101(b)(1) of the Act provides (42 U.S.C.

§7401(b)(1) (Supp. I 1977)):

The purposes of this subchapter are—

(1) to protect and enhance the quality of the Na-

tion’s air resources so as to promote the public

health and welfare and the productive capacity of

its population;

STATEMENT

St. Joe Minerals Corporation (St. Joe) seeks review

of a National Ambient Air Quality Standard (air quality

standard) promulgated by the Administrator of the En-

vironmental Protection Agency (Administrator) under

the purported authority of Section 109(b) of the Clean

Air Act (42 U.S.C. §7409(b)) (Act) which limits public

exposure to lead in the ambient air to 1.5 micrograms of

lead per cubic meter of air (ug Pb/m’). The Ad-

ministrator’s actions are premised upon his findings that

significantly elevated levels of lead in the blood will

result in adverse health effects that can lead to health

problems, including anemia and lead intoxication.

Ambient air, at which the standard is directed, is a

relatively minor source of lead exposure and, thus, a

3

relatively insignificant contributor to elevated blood lead

levels. The Court of Appeals found that it ranks third

behind diet and other forms of direct oral ingestion as a

source of lead exposure. App. A, pps. 4a-5a. Moreover,

even as to airborne lead, EPA data show that stationary

sources, such as St. Joe’s lead smelting plant at Her-

culaneum, Missouri, account for only approximately

five per cent (5%) of lead emitted into the air, and that

even those emissions were comprised primarily of non-

respirable particles.' J.A.? 2805. Ninety per cent (90%)

of lead in ambient air is from gasoline combustion, a

source which already has been regulated by the Ad-

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

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

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

The Administrator was compelled to list lead as a

pollutant under Section 108 of the Act (42 U.S.C.

$7408) and thereafter to undertake the regulatory pro-

ceeding culminating in the air quality stanaard at issue

here, by a court order entered in Natural Resources

Defense Council, Inc. v. Train, 411 F. Supp. 864

(S.D.N.Y.), aff'd, 545 F.2d 320 (2d Cir. 1976). Relying

upon a series of assumptions and determinations, he

first proposed a 1.5 ug Pb/m?’ standard as the level

' Ninety-nine per cent (99%) of the lead particulates emitted from

St. Joe’s Herculaneum plant are non-respirable and cannot be ab-

sorbed into the blood stream through the lungs. App. A, p. 70a.

The Administrator nevertheless speculated, without any record sup-

port, that these particulates might be ingested orally or through

weathering might in time become respirable. App. A, p. 72a.

2 «J A.’’ refers to the Joint Appendix filed in the Court of Ap-

peals.

4

necessary to prevent a certain ‘“‘subclinical’’’ change in

blood known as erythrocyte protoporphyrin elevation

(EP elevation) in children between the ages of 1 and 5

years. App. A, pps. 16a-2la. He found this age group

to be the most sensitive to elevated blood lead levels.

App. A, p. 17a.

After he received and considered comments on the

proposed standard, the Administrator acknowledged

that the very early stages of EP elevation, which the

proposal sought to prevent, might not have health

significance (App. A, p. 22a), and that blood lead levels

could be twice as high as he had initially proposed

(App. A, p. 23a). In the end, however, the Ad-

ministrator adopted the same air standard as originally

proposed,‘ by applying more conservative assumptions

at certain points in his recalculation.’ App. A, pps.

23a-24a. These more conservative assumptions were

justified by the Administrator, in part, as necessary to

’ A ‘subclinical’ effect or ‘‘biological response’’ is essentially a

deviation from the physical norm that is not clinically detectable,

i.e., which cannot be demonstrated by the classic techniques of

physical examination but rather can be detected only through

special testing. See, e.g., J.A. 1334. Healthy persons continually ex-

perience such deviations with no adverse health effects. App. A,

pps. 54a-5Sa.

‘The standard was slightly modified to improve the validity of

monitoring data by enlarging the averaging period for the standard

from a monthly to a quarterly basis. App. A, p. 24a.

* The following table, which sets forth the assumptions made by

the Administrator, demonstrates the impact that even very slight

changes can have upon these assumptions:

RESULTING

EPA ASSUMPTION IF CHANGED TO NAAQS

1. (No Change) jj — -=-------- --- 1.5

2. Maximurn safe blood

lead level = 30 ug Maximum safe blood 3.0

Pb/dl lead level = 35 ug

(App. B, p. 128a) Pb/dl

— ————————ee Oe

allow an adequate margin of safety. Jd. However, the

Administrator neither attempted to identify the extent to

which this resulting margin of safety exceeded the level

necessary to protect against observed adverse health ef-

fects, nor sought to consider factors other than health

risks in setting the margin or margins of safety allowed.

St. Joe, operator of the Nation’s largest lead

smelter, petitioned the Court of Appeals to set aside the

air standard because the cost of an effort to comply

utilizing the technology identified by EPA — $52

million in capital costs and $13 million in increased an-

nual costs — threatens the continued economic viability

of its Herculaneum plant. J.A. 2241. The Administrator

himself concluded that ‘‘some primary and secondary

lead and copper smelters may be severely strained

3. Protect 99.5% of sen- Protect 99.0% of sen- 2.0

sitive population sitive population

(App. B, p. 135a)

4. Standard deviation

for lead in blood = Standard deviation 2.5

1.3 for lead in blood =

(App. B, p. 136a) 1.25

5. Non-air sources of Non-air sources of 2.5

lead in blood = 12 lead in blood = 10

ug Pb/dl ug Pb/dl

(42 Fed. Reg.

63080-6308 | )

6. Ajr lead/blood lead Air lead/blood lead 3.0

ratio = 1:2 ratio = 1:1

(42 Fed. Reg. 63081)

3 ---- Change All 11.0

Although each of the above changes would not have more than a

slight effect upon the final standard, their cumulative impact is to

increase the standard to 11.0 ug Pb/m’—a more than sevenfold in-

crease.

6

economically in achieving emission reductions that may

be required in implementing the proposed air quality

standard.’”’ App. B, p. 157a. Even with the staggering

financial outlays the standard calls for, however, any ef-

fort on the part of primary lead smelters to comply will

fail because the technology does not exist to achieve the

degree of reduced emissions required.°

St. Joe contended, inter alia, that the Administrator

should have identified the margin of safety his final

standard provided beyond the limit required to protect

against observed health effects and should have con-

sidered a variety of factors in setting this margin, in-

cluding the severity of the health effects to be prevented,

the degree to which scientific knowledge is unable to

predict the level necessary to protect against adverse

health effects, the technological feasibility of com-

pliance, and the economic impact of the safety margin.

Brief for Petitioner St. Joe Minerals Corporation at

20-25.

* St. Joe and other primary lead smelter operators have already

installed air pollution controls which reduce lead levels in their

smoke stack emissions. In fact, the compliance control factor for

primary lead smelter stack emissions, as determined by EPA, is

98.2%. J.A. 2841, 2857. The principal remaining source of lead

emissions from primary smelters such as St. Joe’s Herculaneum

Smelter is so-called ‘‘fugitive emissions,’’ those emission. which

could not reasonably pass through a stack, chimney, vent or other

functionally equivalent opening. As EPA itself acknowledges (App.

B, p. 157a.) control of fugitive lead emissions to levels required by

the EPA lead standard is not feasible through installation of

available technology. J.A. 2229-33. Moreover, even if fugitive lead

smelter emissions could be eliminated entirely, the background

levels of lead in the vicinity of primary lead smelters prevent con-

tinuous and consistent compliance with the lead standard at a level

of 1.5 ug/m’. J.A. 2231, 2248, 2255-6. Thus, although St. Joe and

the other primary lead producers have already achieved very high

levels of emissions control, compliance with the final EPA lead

standard by primary lead smelters is not technologically possible.

The Court of Appeals misconceived St. Joe’s con-

tentions by characterizing St. Joe’s position as a claim

that the statutory direction to allow an ‘‘adequate

margin of safety’? required the Administrator to con-

sider economic and technological feasibility in setting a

primary air quality standard without apparent recogni-

tion of the health protective limit/margin of safety

distinction. App. A, p. 3la. The Court thus proceeded,

without itself differentiating between the health protec-

tive limit and the added margin of safety, to dismiss St.

Joe’s contentions as contrary to the legislative history

that technological and economic feasibility should not

be considered in establishing the health protective limit.

App. A, pps. 3la-38a.

REASONS FOR GRANTING THE WRIT

This is the Court’s first opportunity to consider the

proper application of the allowance for a ‘‘margin of

safety’’ under the Clean Air Act Amendments of 1970.

The case presents important questions as to the extent to

which the regulation of the nation’s ambient air to pro-

tect the public from adverse health effects should ac-

commodate other societal needs as well, such as the im-

pact of a primary air quality standard on the nation’s

economy. In light of legislative history indicating that

Section 109 was intended to force the development of

new technology, St. Joe does not question the propriety

of setting such standards at a level that protects the

public from known adverse effects even though achieve-

ment of the standard may be at present economically

and technologically infeasible. These important feasibili-

ty factors, however, should be considered together with

the severity and the certainty of the more speculative

health risks to be guarded against, by the

8

Administrator’s addition of an ‘‘adequate margin of

safety’? beyond the health protective limit, in his deter-

mination of what that margin should be.’

1. The Court of Appeals’ decision that economic

and technological feasibility may not be considered in

determining the margin of safety is not sound. The

legislative history, upon which it relied, limits the Ad-

ministrator’s consideration to health effects in identify-

ing the maximum level of air pollution at which the

public is protected from known adverse health effects

(health protective limit), the necessary first step in the

formulation of a primary ambient air quality standard

under Section 109(b)(1). Cf. Industrial Union Dep’t,

AFL-CIO v. American Petroleum Institute, U.S.

, 65 L.Ed 2d 1010, 1035-37. The margin of safe-

ty, on the other hand, must merely provide a

‘‘reasonable degree of protection ... against hazards

which research has not yet identified.’’* Neither the

’To permit the Administrator te speculate as to theoretical

health risks, without regard to the concrete harm to the public

welfare that flows from unduly stringent standards and without

guidance as to ‘‘where on the continuum of relative safety he

should draw his line,’’ as the Court of Appeals decision permits, is

a ‘“‘sweeping delegation of legislative power’’ that raises serious

Constitutional quesuions. See, Schechter Poultry Corp. v. United

States, 295 U.S. 495, 539; Panama Refining Co. v. Ryan, 293

U.S. 388. See also Industrial Union Dep’t, AFL-CIO v. American

Petroleum Inst. U.S. , 65 L.Ed. 2d 1010, 1037

(Plurality opinion), 1054-55 (Rehnquist J. concurring in the judg-

ment). The Court need not reach this issue here, however, as the

text demonstrates, because the Court of Appeals erred in its con-

struction of the standards to be applied under the Act in setting an

appropriate margin of safety.

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

**S. Rep.’’), The Environmental Policy Division of the Congres-

sional Research Service of the Library of Congress, A Legislative

History of the Clean Air Amendments of 1970, at 410 (1974)

(hereafter ‘‘1970 Legis. Hist.’’).

9

statute nor its legislative history warrant a similar limita-

tion on the factors that the Administrator should con-

sider in determining an ‘‘adequate margin of safety,”’

beyond the health protective limit to protect against

theoretically possible health effects at still lower levels of

exposure.’ The consideration of economic and

technological feasibility factors in setting the appropriate

margin of safety is not inconsistent with expressions of

Congressional intent that such factors not be considered

in setting the health protective level. These considera-

tions enter into the standard-setting process only after

* To the contrary, the legislative history reveals that fulfillment of

the Act’s objectives necessitates attention to economic and feasibili-

ty considerations. As early as 1967, in enacting the first Air Quality

Act (Pub. L. 90-148), Congress evidenced an intention that the

development of air quality standards ‘‘be influenced not only by a

concern for the protection of health or welfare, but also by

economic, social and technological consideration.’’ S. Rep. No.

90-403, 90th Cong., Ist Sess. 28 (1967); See also, id. at 10-11.

Then, in rewriting the Act in 1970, Congress reaffirmed that its

guiding principles were still ‘‘the test of reasonableness and

Seasibleness.’’ 1970 Legis. Hist., supra, note 8, at 111 (statement of

Rep. Staggers) (emphasis added). See also 1970 Legis. Hist., supra,

note 8, at 808 (remarks of Rep. Springer).

Finally, in amending the Act in 1977, Congress emphasized again

that its purpose was to ‘‘insure the protection of the public health

and the environment ... while a/ fhe same time considering the

energy and economic needs of this Nation.’’ H. R. Rep. No.

95-294, 95th Cong., Ist Sess. 112 (1977) (hereafter ‘‘H.R. Rep.’’),

The Environmental Policy Division of the Congressional Research

Service of the Library of Congress, A Legislative History of the

Clean Air Act Amendments of 1977, at 2501-02 (1978) (hereafter

**1977 Legis. Hist.’’) (emphasis added). See also, id. at 367

(remarks of Sen. Stafford); id. at 369 (remarks of Sen. Stevens); cf.

H.R. Rep., supra, at 61, 1977 Legis. Hist., supra, at 2528 (‘‘[A]}

healthful environment, energy conservation, and a sound economy

are interrelated factors bearing on the quality of life of the

Nation.’’)

10

the health protective level has been identified, and thus,

do not compromise the public health.

The Court of Appeals thus erred in ignoring the

broader objectives of the Act — which expressly in-

clude, in addition to health, the promotion of the public

‘‘welfare and the productive capacity of [the Nation’s]

population”’ (Section 101(b)(1), 42 U.S.C. §7401(b) (1)

— when it held that economic and _ technological

feasibility are not factors that must be weighed in the

promulgation of a primary air quality standard.'°

The need to consider these additional factors in

establishing a margin of safety pursuant to Section

109(b)(1) is supported by key passages in its legislative

history which make clear that primary air quality stan-

dards were not intended to eliminate all de minimis or

as yet undetected potential health risks.'' This construc-

tion is also consistent with the Administrator’s conces-

sions in an analogous context that air quality standards

'° Section 101 (b)(1) of the Act, the ‘‘purposes’’ section, is an ex-

plicit statement of statutory intent which must be considered in

determining whether economic and technological feasibility and

other non-health related factors are relevant to margins of safety

determinations. See FTC v. Fred Meyer Inc., 390 U.S. 341, 349;

American Trucking Assns. Inc. v. Atchison, Topeka & Santa Fe

Ry., 387 U.S. 397, 409-10; Association of American Railroads v.

Costle, 562 F.2d 1310, 1316 (D.C. Cir. 1977); Lubrizol Corp. v.

EPA, 562 F.2d 807, 815-16 n. 20 (D.C. Cir. 1977); Lehigh & New

England Ry. Co. v. ICC, 540 F.2d 71, 79 (3d Cir. 1976), cert.

denied, 429 U.S. 1061.

'' Congress rejected the argument that ambient air quality stan-

dards should be set at ‘‘zero or background levels’’ on the grounds

that ‘‘this no-risk philosophy ignores all economic and social conse-

quences and is impractical.’’ H.R. Rep., supra, note 9, at 127, 1977

Legis. Hist., supra, note 9, at 2594. Accord, Industrial Union

Dep’t, AFL-CIO v. American Petroleum Institute, supra, —

U.S. at , 65 L.Ed 2d at 1034-35 (plurality op.).

1]

were not intended to precipitate the ‘‘closure’’ of impor-

tant industries.'? Finally, it is consistent with the Ad-

ministrator’s own practice of weighing cost considera-

tions in setting hazardous air emission standards under

Section 112 of the Act, which require an ‘‘ample margin

of safety’? as opposed to simply an ‘*adequate

margin.’’'?

The ‘“‘technology forcing’? purpose of the Act’s

sponsors is fully satisfied by exclusive consideration of

health in the Administrator’s initial determination of the

health protective limit. The extension of this narrow

focus to the ‘‘margin of safety’’ element of an air quali-

ty standard is not only without legal justification, but

also is likely to be counter-productive even in terms of

the health objectives of the Act because, as the Act itself

recognizes, industry’s resources to control pollution are

limited. '*

'2 See, e.g., 44 Fed. Reg. 58660 (1979) (carcinogens) (‘Congress

did not contemplate closure of the nation’s basic industries, or even

widespread industry closures.’’); 40 Fed. Reg. 59534 (1975) (vinyl

chloride).

'3 See, e.g. , 44 Fed. Reg. 58661 (1979) (carcinogens) (‘‘The Ad-

ministrator also believes, however, that he may consider other

social and economic factors in determining whether an ample

margin of safety is provided by a given control level.’’); 41 Fed.

Reg. 46562 (1976) (vinyl chloride); 40 Fed. Reg. 59534 (1975) (vinyl

chloride).

'* The need to construe specific statutory provisions so as to pro-

mote broad Congressional objectives was recognized by Justice

Powell in /ndustrial Union, supra. According to Justice Powell,

consideration of economic factors in setting toxic pollutant stan-

dards under the Occupational Safety & Health Act is essential to in-

sure that industry resources are allocated effectively. /ndustrial

Union Dep’t., AFL-CIO v. American Petroleum Institute,

U.S. , 65 L.Ed. 2d 1010, 1052 (Powell, J., concurring).

Justice Powell viewed as irrational a statutory interpretation requir-

ing industry resources to be expended to reduce certain risks

without regard to economic considerations, while other risks that

could be reduced in a cost-effective fashion remain unregulated.

12

2. Given the need to consider different factors in

making health protective limit and margin of safety

determinations, under well-established principles of ad-

ministrative law, the Administrator was required not on-

ly to consider but also to articulate clearly his separate

consideration of the appropriate factors relevant to

each.'* Such a delineation is necessary to assure that

each determination is made in a rational manner, with

due consideration of the different factors applicable to

each, and to assure that the courts are able to discharge

their review function properly. This is particularly true

in the circumstances of this proceeding where the final

standard adopted, with equal logic, could have been at

least seven times !ess stringent merely by making slightly

different ‘‘assumptions.’’ See fn. 5, supra. As this Court

has aptly observed:

Expert discretion is the lifeblood of the ad-

ministrative process, but ‘‘unless we make the re-

quirements for administrative action strict and

demanding, expertise, the strength of modern

government, can become a monster which rules

with no practical limits on its discretion.’’ (citation

omitted) Burlington Truck Lines v. United States,

371 U.S. 156, 167.

This does not mean, as the Court of Appeals con-

strued St. Joe’s position (App. A, p. 31a), that the Ad-

ministrator is required to observe a rigid two-step

'S See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 420; Environmental Defense Fund v. Ruckelshaus, 439 F.2d

584, 596-98 (D.C. Cir. 1971); Portland Cement Ass’n vy.

Ruckelshaus, 486 F.2d 375, 400, 402 (D.C. Cir. 1973), cert. denied,

417 U.S. 921; Appalachian Power Co. v. EPA, 477 F.2d 495,

506-07 (4th Cir. 1973); Ethy/ Corp. v. EPA, 541 F.2d 1, 33-37

(D.C. Cir. 1976), cert. denied 426 U.S. 941; Dry Colors Mfrs.

Assoc. v. Department of Labor, 486 F.2d 98, 105-06 (3d Cir. 1973).

13

methodology in arriving at a primary air quality stan-

dard. It means only that, regardless of the methodology

used, his statement of basis and purpose must show his

separate consideration of the health protective limit and

the allowance beyond that limit for a margin of safety

in a manner that clearly sets forth his basis for each

determination.

3. The exclusion of economic and technological

feasibility in setting the margin of safety element of an

air quality standard threatens serious disruption to the

Nation’s economy. The Administrator concedes, for ex-

ample, that the standard at issue here may severely

strain domestic primary and secondary lead smelters

(App. B, p. 157a), which by themselves constitute an

important segment of the economy. There are, in addi-

tion, a number of other air quality standards affecting

equally important domestic industries presently at

various stages of regulatory and judicial consideration.

Ambient standards presently exist for four substances

other than lead: sulfur dioxide, nitrogen dioxide, par-

ticulate matter, and photochemical oxidants (ozone).

These standards affect the operations of virtually every

industry in the country. The Administrator is now

reevaluating, by statutory directive, the ambient stan-

dards for sulfur dioxide and particulates and is consider-

ing the establishment of a new ‘‘short-term’’ standard

for nitrogen oxides. In addition, a revised ambient stan-

dard for ozone is now under review in the District of

Columbia Circuit (American Petroleum Institute, et al.

v. Costle, C. A. No. 79-1104 and consolidated cases).

Thus the appellate court’s ruling, and the excessive-

ly stringent air quality standards which will be pro-

mulgated in reliance thereon, will serve to impede

domestic industry’s ability to compete in domestic and

14

foreign markets, to lessen competition within industries

by forcing some firms out of business, and even,

possibly, to force some industries out of existence

altogether, with the result that existing unemployment,

inflation, and balance of trade problems will be exacer-

bated without any commensurate benefit to the public

health. This Court’s construction of the factors to be

considered by the Administrator in setting ambient air

standards would prevent this unwarranted economic

harm.

4. A definitive resolution of the issues presented at

this time, in light of the number of pending and likely

future proceedings, will provide necessary guidance as to

the factors to be considered in those proceedings.

Substantial administrative and judicial resources would

be conserved by an early resolution of the questions

presented here. Moreover, venue to review Section 109

standards is vested by Section 307(b)(1) of the Clean Air

Act exclusively in the Court of Appeals for the District

of Columbia Circuit (42 U.S.C. §7607(b)(1) (Supp. I

1977), and there is consequently no reason to await fur-

ther development in the other circuits of the issues

presented.

15

CONCLUSION

This petition for a writ of certiorari should be

granted.

Respectfully submitted,

JoHN McN. CRAMER

REED SMITH SHAW & McCLAY

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

(412) 288-3131

Lee A. RAU

(Attorney of Record)

RoBert A. EMMETT

DANIEL A. MASUR

REED SMITH SHAW & McCLAY

1150 Connecticut Avenue, N.W.

Suite 900

Washington, D.C. 20036

(202) 457-6100

Attorneys for Petitioner

St. Joe Minerals Corporation

Dated: September 25, 1980