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

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NOV 24 1980

MICHAEL RODAK, JR., C

IN THE

Supreme Court of the United States

OctoseR TERM, 1980

Sr. Joz MINERALS CORPORATION,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

———_————_

REPLY BRIEF OF PETITIONER

JoHn McN. CRAMER

Rreep Smita SHaw & MoCuay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

(412) 288-3131

Lee A. Rav

Attorney of Record

Rosert A. EMMETT

Danie, A, Masur

Reep SmirH SHaw & McCay

1150 Connecticut Avenue, N.W.

Suite 900

Washington, D.C. 20036

(202) 457-6100

Attorneys for Petitioner

St. Joe Minerals Corporation

November 24, 1980

Press or Braon S. ADAMS PRINTING, Inc., WASHINGTON, D. C.

TABLE OF AUTHORITIES

Crean Arr Act:

42 U.S.C. § 7401 (Supp. IT), Section 101

42 U.S.C. § 7409 (Supp. IT), Section 109

42 U.S.C. § 7412 (Supp. IT), Section 112

No. 80-483

IN THE

Supreme Court of the United States

OctToBER TERM, 1980

St. Joe Mrngrats CORPORATION, __

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

REPLY BRIEF OF PETITIONER

In its brief in opposition to St. Joe Minerals Cor-

poration’s (St. Joe) petition for a writ of certiorari,

Respondent Environmental Protection Agency (EPA)

urges this Court to deny the petition because, in EPA’s

view, the Court of Appeals was correct in upholding

EPA’s promulgation under the Clean Air Act of the

national primary ambient air standard for lead. In

its attempts to justify those portions of the decision

below that address the Administrator’s margin of

safety methodology, EPA makes, and perhaps could

not avoid making, arguments which are fundamentally

irreconcilable. EPA’s inability to devise a consistent

theory to support the decision below underscores the

need for this Court to consider the timely and impor-

tant issues raised by St. Joe regarding the scope of

the Administrator’s authority to regulate the nation’s

ambient air without regard for competing societal

needs.

1. Respondent EPA raises contradictory legal argu-

ments both of which are based upon the failure of

Section 109 of the Clean Air Act (42 U.S.C. § 7409

(Supp. II)) to set forth those factors which must be

considered by EPA in determining an ‘‘adequate mar-

gin of safety”’ (ie., the extent to which primary air

quality standards should be made more stringent than

the level of protection required to protect against

known health risks). In doing so it becomes caught

on the horns of a dilemma of its own creation.

The Agency thus argues, at one point, that the Act’s

failure to state expressly that economic and technologi-

eal feasibility are factors to be considered by the Ad-

ministrator in making margin of safety determina-

tions totally precludes their consideration in that

process.’ Yet, at another point, EPA argues that this

very same failure of Congress to identify relevant fac-

tors in Section 109 does not amount to an unconstitu-

tional delegation of legislative power because ‘‘the Ad-

ministrator has interpreted Section 109 to provide

further criteria that constrain him in choosing an

adequate margin of safety... .’’’

1 Brief for the Environmental Protection Agency in Opposition

(EPA Opposition) at 15, 17.

* 7d. at 17-18, n. 20. EPA goes on to identify the following as

among the factors to be considered by the Administrator in mak-

It cannot be both ways. Either EPA can look beyond

Section 109 for relevant factors to be applied in its

margin of safety determinations or it cannot, If it

can, then it is not true that the failure of Section 109

to articulate factors precludes their consideration and

certainly among those that must be considered are the

public ‘‘welfare”’ and ‘‘ productive capacity’’ objectives

of the Act, clearly stated in Section 101 (42 U.S.C.

§ 7401 (Supp. IT) ), which necessarily include economic

and technological feasibility. If EPA cannot look be-

yond the sparse language of Section 109, then the

Administrator is indeed making margin of safety de-

terminations without necessary Congressional guid-

ance.

EPA’s attempt to fashion a middle ground to avoid

its own dilemma, by selectively excluding economic and

technological feasibility factors from its ‘adequate

margin of safety’’ determinations, can only be char-

acterized as arbitrary and unfounded. Beyond its in-

consistency with the already noted broad statement of

the Act’s societal objectives expressed in Section 101,

this tortured position belies statements in the legisla-

tive history to the effect that fulfillment of the Act’s

objectives necessitates attention to economic and tech-

ing the margin of safety determination: ‘‘the severity and re-

versibility 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.’’ /d.

Significantly, St. Joe has consistently argued that economic and

technological feasibility were only two among many factors to be

considered. As the Court of Appeals acknowledged, ‘‘{o]ther fac-

tors that should, in St. Joe’s view, be considered are the severity

of the associated health effects and the adequacy of the scientific

base for determination of the health protective threshold level.’’

App. A. at 3la. See St. Joe Minerals Corporation Petition for a

Writ of Certiorari (Petition), at 6.

nological feasibility considerations. E.g., Petition, at

9 & n.9 (and citations appearing therein). It is further

ironically at odds with the Administrator’s own well-

established position that these very same factors are to

be considered in issuing air emission standards for

hazardous pollutants under the similar but more strin-

gent ‘‘ample [not merely adequate] margin of safety”

provision of Section 112 of the Act. E.g., id. at 11 &

n.13 (and citations appearing therein). Compare Sec-

tion 112 of the Clean Air Act, 42 U.S.C. § 7412 (Supp.

II) with Section 109 of the Clean Air Act, 42 U.S.C.

§ 7409 (Supp. IT).

2. EPA frankly concedes that the Administrator did

not make two ‘‘separate and distinct’’ decisions in de-

termining the pollution level required to protect the

public health and the adequate margin of safety to be

added beyond that level; it contends, however, that he

did not have to make such a delineation between the

two, EPA Opposition, at 17. It persists in this position

despite its additional concession that the Administra-

tor is required to consider factors in his margin of

safety determinations that do not enter into his deter-

mination of health protective levels.’

Where distinct elements of a standard require the

consideration of different factors, it is plain that sep-

arate consideration of each element is necessary to

assure adherence to the statutory scheme. Moreover,

under well established principles of administrative law,

this separate consideration must be clearly articulated

to enable reviewing courts to perform their function

’‘*'T)he administrator has interpreted Section 109 to provide

further criteria that constrain him in choosing an adequate margin

of safety ....’’ EPA Opposition, at 17-18 n.20.

of determining whether the Administrator’s decisions

have a rational basis.

CONCLUSION

For the reasons stated herein, as well as those stated

in the original petition, it is respectfully submitted

that St. Joe’s petition for a writ of certiorari should

be granted.

Respectfully submitted,

JOHN McN. CRAMER

Reep SmitH SHAw & McCray