# Record and brief — American Petroleum Institute v. Gorsuch > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0690%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 455 U.S. 1034 ## Text UOlNag Office-Supreme Court, US PEL ED ALEXANDER L. STEVAS, CLERK OCTOBER TERM, 1981 AMERICAN PETROLEUM INSTITUTE, ef ai., Petitioners, V. ANNE M. GORSUCH, ADMINISTRATOR, AND ENVIRONMENTAL PROTECTION AGENCY, Respondents. JOINT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Epwarp W. WarRREN* Ropert F. VANVOORHEES Joun S. HAHN KirKLAND & ELLs Of Counsel: 1776 K Street, N.W. STARK RITCHIE Washington, D.C. 20006 Davip T. DEAL (202) 857-5000 American Petroleum Counsel for American Institute Petroleum Institute EpMUND B. Frost and Member Company Petitioners Chemical Manufacturers JouN H. PICKERING Association WiittiaM H. Lewis, Jr. Davin R. JOHNSON Witmer, CutLer & PICKERING 1666 K Street, N.W. Washington, D.C. 20006 Counsel for Chemical Manufacturers Association November 10, 1981 *Counsel of Record Additional counsel listed inside cover. ne EE ENS CT A TTT A TR LT J. MarsHALL COLEMAN ATTORNEY GENERAL OF VIRGINIA Rocer L.. CHAFFE ASSISTANT ATTORNEY GENERAL Suite 308 11 South 12th Street Richmond, Virginia 23219 Counsel for the Commonwealth of Virginia, ex rel. the State Air Pollution Control Board BERNARD J. REILLY 1007 Market Street Wilmington, Delaware 19898 Counsel for E. 1. du Pont de Nemours & Company Wixkes C. Rosinson J. Scott Brown Gutr Coast & Great PLAINs LEGAL FOUNDATION 127 West 10th Street Room 1022 Kansas City, Missouri 64105 Counsel for St. Louis Regional Commerce and Growth Association Jan Eric CARTWRIGHT ATtToRNEY GENERAL OF OKLAHOMA Neat LEADER ASSISTANT ATTORNEY GENERAL 112 State Capitol Building Oklahoma City, Oklahoma 73105 Counsel for State of Oklahoma QUESTIONS PRESENTED The questions presented for review by this Court are: 1. Whether the court below correctly construed § 307(d) (8) of the Clean Air Act as excusing the Environmental Protec- tion Agency’s violation of mandatory statutory requirements, with the practical effect of undermining any opportunity for meaningful judicial review of the Agency’s decisions. 2. Whether the court below correctly construed § 109 of the Clean Air Act as imposing no substantive limitations on the Environmental Protection Agency’s discretion to establish national ambient air quality standards, and if so, whether that provision constitutes an excessively sweeping and unfettered delegation of legislative authority in violation of the Constitu- tion. LIST OF PARTIES The parties before the court of appeals included the American Petroleum Institute and 15 of its member companies, ' the Chemical Manufacturers Association and four of its member companies, * the Commonwealth of Virginia, ex re/. the State Air Pollution Control Board, E. I. du Pont de Nemours & Company, the St. Louis Regional Commerce and Growth Association, the State of Oklahoma and the City of Houston. ’ ' Atlantic Richfield Company, Continental Oil Company, Exxon Com- pany U.S.A., Getty Oil Company, Gulf Oil Corporation, Grace Petroleum Corporation, Kerr-McGee Corporation, Mobil Oil Corporation, Pennzoil Company, Shell Oil Company, Standard Oil Company (Indiana), The Standard Oil Company (Ohio), Texaco Inc. , Union Oil Company of Califor- nia, and Witco Chemical Corporation. ? American Cyanamid Company, Diamond Shamrock Corporation, Ethyl! Corporation, and Northern Petrochemical Company. } The parties below also included the Natural Resources Defense Council, the Delaware Valley Citizens Committee for Clean Air, Inc., the Connecti- cut Lung Association, Inc., the American Lung Association, and the Sierra Club. TABLE OF CONTENTS Page NE Sewer ac euch ibcw beset ChewneeN seus 2 I ed Oe Cee een eee en baw 2 STATUTES AND REGULATIONS INVOLVED .................. 2 TE EE go bc nscce sedctcdennoseedeaaves 3 A. Geatatory Background... .... cc cccsccccceses 3 B. EPA Quome Relomaking ..........ccccseees 6 ae >: 10 REASONS FOR GRANTING THE WRIT ................-0000- 11 I. By Construing Section 307(d)(8) of the Clean Air Act to License Flagrant Violation of Mandatory Statutory Provi- sions, the Decision Below Raises Far-Reaching Questions About the Function and Scope of Judicial Review That Should Be Addressed by This Court ............... 13 Il. The Decision Below Raises Grave Constitutional Ques- tions By Construing Section 109 of the Clean Air Act as Placing No Limitations on EPA’s Standard-Setting Dis- : ceasun vanes eee al Vek beeee ee alesse Giwes 18 PED uchuveweuuaeuwe danke neeewemdwrenbensent 24 ” od * APPENDIX A. Court of Appeals Decision on the Merits. ...... la B. Court of Appeals Decision Correcting the Record 33a C. Environmental Protection Agency Promulgation of MEE cuayunnedeces cesdenscekebeceees 6 43a D. Statutory and Regulatory Provisions ........... 103a iv TABLE OF AUTHORITIES CASES: Page American Textile Mfg. Institute v. Donovan, US. . ey EEE | bi ceWesssvececastescesenees 12 Braniff Airways, Inc. v. CAB, 379 F.2d 453 (D.C. Cir. 1967) = 16 Brown v. EPA, 521 F.2d 827 (9th Cir. 1975), vacated and remanded, 431 U.S. 99 (1977) ....... 0.000.002 eee 3 Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Comm'n, 449 F.2d 1109 (1971) ...... 18 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 Dut dcr kuueedaveneenuedsk esses keen ss li, i2 City of Santa Rosa v. EPA, 534 F.2d 150 (9th Cir.), cert. dismissed sub nom., California v. EPA, 429 U.S. 952 Dt teaieeasidekenhecey basteuaeeanseKeiets os 10 Duck River Preservation Assoc. v. Tennessee Valley Authority, 410 F. Supp. 758 (E.D. Tenn. 1974), aff'd mem., 529 ee NS ED 0650 unvecrucsccrccccecess 18 Ethyl Corp. v. EPA, 541 F.2d 1, cert. denied sub nom., E.1. du Pont de Nemours & Co. v. EPA, 426 U.S. 941 (1976) 5, 12 Flint Ridge Development Co. v. Scenic Rivers Assoc., 426 U.S. SD a nan cade wakes ed outie sos b0k6es bes 17 Hampton & Co. v. United States, 276 U.S. 394 (1928) ... 19 Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467 ES I. Se errr ne rrerer il Industrial Union Dept., AFL-CIO v. American Petroleum In- Stitute, 448 U.S. 607 (1980) ............. 12, 13, 19-23 International Harvester Co. v. Ruckelshaus, 478 F.2d 615 uve cewhccddusebees 6000s kh bne¥e 5, 13 Kleppe v. Sierra Club, 427 U.S. 390 (1976) ............ 17 Lead Industries Ass'n v. EPA, 647 F.2d 1130(D.C. Cir.), cert. denied, 449 U.S. 1042 (1980) .................... il Lichter v. United States, 334 U.S. 742 (1948) ........... 21 National Cable Television Association v. United States, 415 ee cea a cue eu nk aewahe 6s 21 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) ... 19, 21 Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974) ....... 5 Table of Authorities Continued Page Schechter Corp. v. United States, 295 U.S. 495 (1935) ... 21 Train v. NRDC, 421 U.S. 60 (1975) ...............2.... 3 Union Electric Co. v. EPA, 427 U.S. 246 (1976) ........ 3, 10 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 SE ccddaeddeksutetbuee taeda 12 CONSTITUTIONAL PROVISIONS: U.S. Constitution, Asticofe §,§ 1... 2. ccc cccccvcccces 2 STATUTES AND REGULATIONS: Clean Air Act, 42 U.S.C. §§ 7401 et seq. Sf BT ee) eer passim Ge ee OF PED bcc ucanceedesueusesess 3 fo fee) Perera passim a, Oe 6.k.u cc uwececdconcnrenuiu 3 42 U.S.C. § 7409(b\ 1) ................ 4, 21, 22 4 8 * al re rt ee 4,14 GB U.S. BS PERUMED 2. cc vcvecvccvescceses 5 © OUR, Ge Wes OD cabecvecccecncdecuceeseen 3,9 ee cs OS PE nce nccudaccaceeeeus 10 Bi me G6 * a & - Sererserrt rer 23 §§ 171-78, 42 U.S.C. §§ 7501-08 ................... y S 17Rad, 42 U.S.C. § TERBeD .. cc ccc cc ccccctocces i) 42 U.S.C. § 7502%(b\ 11) .............008.. y § 307(b)(1), 42 U.S.C. § 7607(b\1) .. 2... ee eee. 10 © Bares Ge is OF ED nhccsccccccvecenueusss 4, 16 = aT dl S000: 14 © OBS. Bb POD occ ccscccccseeses 14 gZb' Me) = passim ie ine Uk CEL .. cs o ve ou ca.eun baad 17 ‘2 U.S.C. § 7607(d9KD) .......... 11, 15, 17 Environmental Research, Development, and Demonstration Author- ization Act of 1978, § 8 og FS Peer passim ie as GUD 66-6.0-600500005094500008s0n 5 Federal Advisory Committee Act FOr: GE Be PO occ ceccnsecsscsenseen 2 vi Table of Authorities Continued Page National Environmental Policy Act EE PUES Sic cccscevcecessecsccsens 17 meee OKT Safety and Health Act OS voc nvvccuvautdcvccncesees 20 iS ccc hc cc esneceeeseeceseoeses 20 ED ovsocncsevecevevesesecsuens 20 LEGISLATIVE MATERIALS: H.R. Rep. No. 294, 95th Cong., Ist Sess., reprinted in |1977] U.S. Code Cong. & Ad. News 1077 ............ 16, 17 H.R. 1K No. 564, 95th Cong., Ist Sess., reprinted in |1977| U.S. Code Cong. & Ad. News 1502 ............ 16, 17 H.R. Rep. No. 722, 95th Cong., Ist Sess. (1977) ........ 4,5 S. Rep. No. 1196, 9ist Cong., 2d Sess. (1970) ........... 22 Staffs of the House Interstate and Foreign Commerce Commit- tee and the House Science and Technology Committee, 94th Cong., 2d Sess., Report on Joint Hearings on the Conduct of the Environmental Protection Agency's “Com- munity Health and Environmental Surveillance System” (CHESS) Studies (Comm. Print 1976) .............. 4 MISCELLANEOUS: I, CPOE wcccccccccceccccceecessecces 23 40 Fed. Reg. 9532 (197S) .. ccc cece ccc ccc cececes 23 MPD ss cas cescecccecncccecseece 23 IE oo ccc ccscorscccceecencsece 23 i ED vccccceccccescdecsccsecvens 7 i ED oc ccc cccvcrdececcecscsceses 7 SE ED wesc cccceccccccceeecececees 23 46 Fed. Reg. 7182 (1981) ...........cccccceeeeeeeees 10 IN THE Supreme Court of the United States OCTOBER TERM, 1981 No, AMERICAN PETROLEUM INSTITUTE, ef al., Petitioners, Vv. ANNE M. GoORSUCH. ADMINISTRATOR, AND ENVIRONMENTAL PROTECTION AGENCY, Respondents. JOINT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT The American Petroleum Institute and its member company petitioners,‘ the Chemical Manufacturers Association, the Commonwealth of Virginia, ex re/. the State Air Pollution Control Board, E. I. du Pont de Nemours & Company, the St. Louis Regional Commerce and Growth Association, and the State of Oklahoma respectfully petition for a Writ of Certiorari to review the decision of the United States Court of Appeals for the District of Columbia Circuit in the case of American Pet- *Continental Oil Company, Exxon Corporation, Getty Oil Company, Gulf Oil Corporation, Grace Petroleum Corporation, Kerr-McGee Corpora- tion, Mobil Oil Corporation, Pennzoil Company, Shell Oil Company, Standard Oil Company (Indiana), Texaco Inc., and Witco Chemical Cor- poration. , — roleum Institute v. Costle, et al., No. 79-1104, and consoli- dated cases. ° OPINIONS BELOW The opinion of the court of appeals is reported at ____ F.2d —_., Slip op. (D.C. Cir. 1981) (Petitioners’ Appendix A). A previous opinion of the court ordering corrections to the record is reported at 609 F.2d 20 (D.C. Cir. 1979) (Petitioners’ Appendix B). The Environmental Protection Agency’s state- ment of basis and purpose for the ozone standard is reported at 44 Fed. Reg. 8202 (1979) (Petitioners’ Appendix C). JURISDICTION The judgment of the court of appeals was entered on Septem- ber 3, 1981. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTES AND REGULATIONS INVOLVED This case involves review of the national ambient air quality standard for ozone, 44 Fed. Reg. 8202 (1979), codified at 40 C.F.R. § 50.9, as promulgated pursuant to the Clean Air Act, 42 U.S.C. §§ 7401 et seq. This case also involves application of § 8 of the Environmental Research, Development, and De- monstration Authorization Act of 1978 (ERDDAA), 42 U.S.C. § 4365, the Federal Advisory Committee Act, 5 U.S.C. app. §$§ 3 et seq., and Article I, § 1 of the United States Constitu- tion, which provides that “All legislative Powers herein granted shall be vested in a Congress. . . .” Pertinent provisions of the * Pursuant to Supreme Court Rule 40.3, the case caption on this Petition has been changed because Anne M. Gorsuch has replaced Douglas M. Costle as Administrator of the Environmental Protection Agency. A list of the corporate petitioners’ parent companies, subsidiaries and affiliates is being filed as a Supplemental Appendix, pursuant to Supreme Court Rule 28.1. applicable regulation and statutes are appended to this Petition (Petitioners’ Appendix ° D). STATEMENT OF THE CASE A. Statutory Background The Clean Air Act, 42 U.S.C. §§ 740! et seq., establishes a comprehensive scheme for the regulation of air pollutants that threaten public health or welfare. The paramount provisions of the Act are §§ 108 and 109, P.A. 103a-104a, which authorize the Administrator of the Environmental Protection Agency (EPA) to promulgate national ambient air quality standards establishing the maximum permissible levels of pollutants in the ambient (outdoor) air. Section 110, 42 U.S.C. § 7410, requires the states to prepare and implement whatever pollution control measures are necessary to ensure timely attainment of the national standard. This Court twice has reviewed provisions of § 110 governing implementation of national ambient air quality standards, Train v. NRDC, 421 U.S. 60(1975), and Union Electric Co. v. EPA, 427 U.S. 246 (1976), but never has construed the seminal standard-setting provisions of §§ 108 and 109, which are at issue in this case. ’ Section 108(a)(2) directs the Administrator to prepare an “air quality criteria” document which “accurately reflect|s] the latest scientific knowledge” about the effects of selected pollu- tants on public health and welfare. P.A. 103a. Section 109(a) authorizes the Administrator to promulgate “primary” national © Hereinafter “P.A.” ’ The Court also granted writs of certiorari in Brown v. EPA, 521 F.2d 827 (9th Cir. 1975) and related cases, in which states challenged EPA’s authority to require adoption of motor vehicle inspection programs to imple- ment the previous ozone standard. The Court declined to review these cases on the merits, however, after EPA conceded that the disputed regulations were invalid. EPA v. Brown, 431 U.S. 99 (1977). 4 ambient air quality standards, which are described in § 109(b)(1) as 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.” P.A. 104a. Apart from the provi- sions of §§ 108 and 109, the statutory text provides no express guidance or limits on what factors the Administrator may con- sider in setting such standards. * In 1977, Congress provided for an independent Science Advisory Board to which EPA was required to submit for review and comment all proposed criteria documents and all proposed standards, along with supporting scientific informa- tion, under the Clean Air Act and all other statutes administered by EPA. ° Review of proposed criteria documents and standards *Section 307(d) prescribes administrative procedures applicable to set- ting ambient air quality standards. P.A. 106a-1 12a. * Environmental Research, Development, and Demonstration Authoriza- tion Act of 1978 (ERDDAA), § 8, 42 U.S.C. § 4365, P.A. 112a-1 13a. ERDDAA requires independent scientific review of regulations issued not only under the Clean Air Act, but also under the Federal Water Pollution Control Act, the Resource Conservation and Recovery Act of 1976, the Noise Control Act, the Toxic Substances Control Act, the Safe Drinking Water Act, and “any other authority of the Administrator.” /d. at 113a. In 1976, Congressional committees had found serious deficiencies in EPA's research on the health effects of air pollution, including an apparent tendency to stretch interpretations to support EPA’s regulatory positions. Staffs of the House Interstate and Foreign Commerce Committee and the House Science and Technology Committee, 94th Cong., 2d Sess., Report on Joint Hearings on the Conduct of the Environmental Protection Agency's “Community Health and Environmental Surveillance System” (CHESS) Studies (Comm. Print 1976). As a result of this investigation, § 8 of ERDDAA was enacted in 1977. H.R. Rep. No. 722, 95th Cong. , Ist Sess. 16-18 (1977). In the 1977 Clean Air Act Amendments, Congress also required indepen- dent scientific review of all air quality criteria documents and standards on an ongoing basis. 42 U.S.C. § 7409(d), P.A. 104a-105a. The responsibility 5 by the Science Advisory Board was envisioned as a major reform of the standard-setting process. The Board’s comments would provide the Administrator with authoritative scientific advice, independent of the Agency's own staff, and thereby improve the quality of EPA’s standards. " At the same time, the Board—composed of persons “qualified by education, training and experience to evaluate scientific and technical information” (42 U.S.C. § 4365(b))—would provide an evaluation of prop- osed rules that would facilitate and enhance judicial review of EPA’s decisions. "' The Clean Air Act Amendments of 1977 required EPA to revise, “as may be appropriate,” all existing air quality criteria and standards. 42 U.S.C. § 7409(d)(1), P.A. 104a. In that year, EPA initiated rulemaking proceedings to review the ozone standard at issue in this case. " for conducting independent scientific review as required by ERDDAA and the Clean Air Act is held now by the Clean Air Scientific Advisory Commit- tee, a subcommittee of EPA's Science Advisory Board. In passing § 8 of ERDDAA, Congress intended for the Science Advis- ory Board “to review conflicting claims and advise the Administrator on the adequacy and reliability of the technical basis for rules and regulations.” H.R. Rep. No. 722, 95th Cong., Ist Sess. 16 (1977). '' Prior to the enactment of ERDDAA, courts repeatedly had noted the difficulties posed for appellate judges charged with reviewing scientific and technical issues underlying EPA regulations. See International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 647-48 (D.C. Cir. 1973), Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 402 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974). Compare Ethyl Corp. v. EPA, 541 F.2d 1, cert. denied sub nom., E.1. du Pont de Nemours & Co. v. EPA, 426 U.S. 941 (1976), concurring op. of J. Bazelon at 67 (“substantive review of mathematical and scientific evidence by technically illiterate judges is dangerously unreliable”), with concurring op. of J. Leventhal, at 68 (“[ojur present system of review assumes judges will acquire whatever technical knowledge is necessary as background for decision of the legal questions”). '2 Ozone (O.) is a form of oxygen that can be formed in the ambient air from chemical reactions involving organic compounds. Joint Appendix (from the proceedings in the court of appeals; hereinafter “J.A.") Ex. | at B. EPA Ozone Rulemaking Throughout the ozone rulemaking, EPA’s actions raised questions about its willingness to comply with prescribed statu- tory requirements, and to review the existing standard with an open mind. EPA began the proceedings, not by seeking Science Advisory Board review of a draft criteria document, but rather by convening another group of advisers to recommend a con- clusion on the ultimate issue of the rulemaking, i.e., “the translation of health data into an ambient air quality standard.” P.A. 23a-24a. This group, which EPA named its “Advisory Panel on Health Effects of Photochemical Oxidants,” was empanelled and met without public notice. The Panel was chaired by a former EPA official who also was serving as the public spokesman for an interest group favoring no revision of the standard. J.A. 258. The Panel’s Report, prepared in June, 1977 with EPA staff assistance, advocated retention of the existing standard. J.A. 259, 277-79. 3-3. Therefore, emissions of fuels and other organic compounas are control- led to reduce ambient ozone levels. Ambient ozone also results, however, from two natural sources over which man has no control. The first is organic compounds emitted by vegetation which, like organic emissions from man-made sources, can produce ozone by chemical reaction. J.A. Ex. |. at 4-62. A second signifi- cant natural source is the transfer to ground level of ozone from the stratos- phere (J.A. Ex. | at 4-48), where ozone is considered beneficial in screening the earth from ultra-violet radiation. Ambient ozone levels sometimes have been associated with temporary irritation of the respiratory tract, but have not been shown to increase mortality or to cause long-term effects in humans. J.A. 647. Consequently, a major factual issue in setting the primary ozone standard was whether EPA reasonably could interpret various scientific studies as showing a significant risk of short-term health effects at various ambient ozone levels. The original ozone standard was denominated a “photochemical oxidant” standard when set in 1971. J.A. 57. The initial standard was set at the unrealistically stringent level of 0.08 parts per million (ppm), based on EPA's concededly mistaken reading of a single study. J.A. 440. 7 Only after that report was written did EPA provide the statutory Science Advisory Board with drafts of the criteria document, which were reviewed at public meetings in Novem- ber, 1977 and February, 1978. The Board consistently criti- cized those drafts as scientifically deficient and biased in favor of an excessively stringent standard. J.A. Ex. 2. In ballots cast in March, 1978, not one of the eleven Board members was willing to advise EPA that the existing draft could be considered a “scientifically acceptable criteria document” without major revisions. J.A. 287-310. The Board’s Chairman, Dr. James Whittenberger, '’ wrote: “I found the authors had responded insufficiently to many criticisms made by members of the Subcommittee and by others. The health risk assessments are largely speculative, incomplete, and heavily dependent on stu- dies of questionable validity ” J.A. 293. After the Science Advisory Board had repeatedly criticized the scientific quality of EPA’s draft criteria document, EPA terminated the Board’s role in the rulemaking. Without seeking the Board’s advice, EPA issued a final criteria document and proposed a barely revised standard of 0.10 ppm. J.A. 437. The proposal was based substantially on the conclusions presented in the Advisory Panel Report noted above and on the results of a “decision analysis” technique that EPA had withheld from review by the Science Advisory Board. J.A. 441. Petitioners urged EPA to submit the proposal for review by the Science Advisory Board, as was EPA’s clear duty under ERDDAA. Nevertheless, EPA refused to do so. '* Although the "8 Like all of the members of the Science Advisory Board, Dr. Whit- tenberger is a highly respected scientist, who is a Professor and the former Dean of the Harvard School of Public Health. J.A. 291-92. '* No practical reason prevented EPA from submitting the proposal to the Science Advisory Board. The proposal was published in the Federal Regis- ter on june 22, 1978 (43 Fed. Reg. 26962), and the comment period did not close until October 16, 1978 (43 Fed. Reg. 43331 (1978)), almost four months later. Three additional months elapsed before the final standard was promulgated on January 26, 1979. P.A. 43a. 8 proposal was not reviewed by the Science Advisory Board, it was addressed in public comments by President Carter's Reg- ulatory Analysis Review Group, an interagency group of reg- ulatory analysts assembled to improve the scientific quality and cost-effectiveness of major federal regulations. The Review Group concluded that EPA’s proposed ozone standard would result in little or no discernible benefit to public health, at the staggering cost of $14.3 to $18.8 billion annually (J.A. 661-62), or almost one percent of the Nation's gross national product. Accordingly, the Review Group suggested that an ozone standard of 0.16 ppm would still protect public health, while saving vast resources that society could use better to protect the public from other, far more serious, health hazards. J.A. 647-49, 665. '° EPA rejected the Review Group’s recommended standard of 0.16 ppm, without submitting its own proposal to the Science Advisory Board, and instead promulgated a far more stringent and costly standard of 0.12 ppm. '° P.A. 43a. In promulgating the standard, EPA rejected not only the requirement of independent scientific review, but also any meaningful substantive constraints on its standard-setting dis- cretion. It refused to define what constitutes impairment of “public health” under § 109, or to acknowledge any limits on what “margin of safety” may be considered “adequate.” P.A. 46a-48a. Similarly, EPA concluded that no other factors limit its discretion to determine what level of protection is “requisite to protect the public health,” saying: “The Clean Air Act, as the 'S The Review Group found that “the marginal costs of EPA’s proposed standard may be in the range of $1 ,100-$4, 100 per reduced person-hour of ozone exposure, which causes discomfort but is reversible and apparently has no long-term debilitating effects.” J.A. 637. '© The Review Group estimated that a standard of 0.12 ppm would cost $12.4 to $15 billion annually, which is almost $3 billion more annually than a standard of 0.16 ppm. J.A. 661. 9 Administrator interprets it, does not permit him to take factors such as cost" or attainability'* into account in setting the standard.” P.A. 82a. The practical consequences of an ozone standard as stringent as that set by EPA are immense. The standard, which is violated in most parts of the country where ambient ozone is measured (P.A. 100a), must be attained by 1982, with an extension available only until 1987. 42 U.S.C. § 7502(a). Thus, states will be required to implement an array of control measures by next year to assure attainment by no later than 1987. ' Even by '? This view is rendered all the more inexplicable by EPA’s recognition “that controlling ozone to very low levels is a task that will have significant impact on economic and social activities.” P.A. 82a. EPA then stated that “[t}his recognition causes [the Administrator] to reject as an option the setting of a zero-level standard . . . However, it is public health, and not economic impact, that must be the compelling factor in the decision.” /d. No one disputes that public health is the “compelling factor” in setting a standard. But EPA never attempted to explain how practical factors could be irrelevant as a matter of law, while EPA may rely on those factors as the reason for avoiding a standard set at zero. Nor did EPA explain what factors bear on where the standard should be set, given the conceded fact that no standard provides absolute protection against all risks of health effects. '’ During the rulemaking, EPA had funded private research which re- vealed that 80 percent of organic emissions come from vegeiation rather than man-made sources. Because of the obvious significance of this information to the issue of whether the ozone standard could be attained by control of man-made emission sources, petitioners urged EPA during the comment period to consider the information in setting the standard. J.A. 1003. EPA refused to consider this evidence or to include it in the rulemaking record, claiming that whether a standard can be attained is irrelevant as a matter of law. J.A. 1071. ' States violating the ozone standard are subject to a variety of strict emission control requirements under section 1 10 (42 U.S.C. § 7410) and Part D(42 U.S.C. §§ 7501-08) of the Act. In addition, states unable to attain the primary ozone standard by 1982 must establish inspection and mainte- nance programs to control emissions from motor vehicles, among other measures. 42 U.S.C. § 7502(b)(11). 10 EPA’s own estimates, ozone control measures required in 1982 and thereafter will cost billions of dollars annually. J.A. 659.” C. The Decision Below On petitions for review by industry groups and state and local governments, the court below upheld the standards in every respect. *' The court ruled that EPA had violated § 8(e) of ERDDAA by failing to submit the proposed standards to the Science Advisory Board (P.A. 22a-23a), but excused the viola- tion under § 307(d)(8) of the Act, * because “we cannot hold EPA concedes that a number of states will be unable to attain the standard by the statutory deadlines, despite the implementation of all “reasonably available” control measures. When it promulgated the standard, EPA acknowledged that “[e}ven with aggressive control programs, howev- er, it will be very difficult for some urban areas to achieve the standard within the next 10 years.” P.A. 101la. Indeed, EPA already is establishing policies for states that will be unable to meet the final statutory deadline in 1987. 46 Fed. Reg. 7182 (1981). If EPA finds that, notwithstanding adop- tion of all reasonable measures, a state will not meet the standard, EPA may impose on the state a variety of more severe measures, including a ban on construction of major emission sources. 42 U.S.C. § 7410(a)(2)(1). Once standards are established, neither technological nor economic in- feasibility will relieve states or industrial sources from complying with these implementation requirements. Union Electric Co. v. EPA, 427 U.S. 246 (1976). One court upheld EPA regulations that could completely ban the sale of gasoline in Los Angeles if necessary to attain the ozone standard. City of Santa Rosa v. EPA, 534 F.2d 150 (9th Cir.), cert. dismissed sub. nom., California v. EPA, 429 U.S. 952 (1976). ! The U.S. Court of Appeals for the District of Columbia Circuit is the sole forum for review of rules of nationwide scope under the Clean Air Act. 42 U.S.C. § 7607(b)(1), P.A. 107a. Accordingly, no conflict can develop among the circuits on some of the most important questions raised by the decision below. Section 307(d)(8) provides, in pertinent part: “In reviewing alleged procedural errors, the court may invalidate the rule only if the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed that the standard would likely have been significantly changed had it been submitted to the Board.” P.A. 23a. * The court also endorsed EPA’s construction of § 109, even though that con- struction places no effective limits on EPA’s discretion, permit- ting EPA to set a standard of whatever stringency it chooses P.A. 14a-1Sa. REASONS FOR GRANTING THE WRIT The decision below poses fundamental questions about whether Congress intended, or the Constitution permits, an administrative agency to exercise unchanneled and unreview- able discretion in making decisions of vast importance for public health and the economic well-being of the Nation. Un- less reversed, the erroneous decision of the court of appeals will have far-reaching consequences for other cases by seriously undermining judicial review of administrative action. There is a perplexing irony in the result reached below. Previous decisions of this Court and the court below have established a “highly deferential standard” of review for agen- cies’ factual or policy determinations, especially those involv- ing scientific or technical matters. * Judicial review in such if such errors had not been made.” P.A. I | 1a. Although this requirement is incorporated by reference in § 307(d)(9)(D), P.A. 112a, the court below relied expressly on the provision of § 307(d)(8) in excusing EPA’s statutory violations. P.A. 23a, 25a. **The court declined to reach the issue of whether EPA violated the Federal Advisory Committee Act in privately convening its Advisory Panel, on the ground that such violations also would have been excusable. P.A. 25a. The court further down-graded the role of the Science Advisory Board by finding no reversible error in EPA's failure to respond to the Board's comments on the draft criteria document. ** See, e.g., Lead Industries Ass'n v. EPA, 647 F.2d 1130, 1145 (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416(1971)), Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 475 (D.C. Cir. 1974). 12 cases thus has focused on strict compliance with procedures required by law* or on issues of statutory interpretation and authority. * But the decision below, if allowed to stand, would close off even this limited scope of review by effectively immunizing EPA against claims of procedural irregularity in the development of standards, ” and by confirming EPA’s view that the statute gives it essentially unfettered discretion in setting those standards. The court’s reliance on § 307(d)(8) of the Clean Air Act not only absolves the Agency’s flagrant violation of an express statutory requirement, but also defeats Congress’ purpose in enacting § 8 of ERDDAA, which was to improve Agency decisionmaking and to enhance judicial review of EPA rules involving scientific issues. Only if ERDDAA is enforced can the independent scientific review process designed by Congress assist appellate courts in their review of Agency decisions on scientific and technical issues. * *5 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549, n.21 (1978) (“the court must determine whether the agency complied with the procedures mandated by the relevant statutes”) (citing Citizens to Pre- serve Overton Park v. Volpe, 401 U.S. at 417); Ethyl Corp. v. EPA, 541 F.2d at 67 (concurring opinion of Judge Bazelon) (“we will do more to improve administrative decision-making by concentrating our efforts on strengthening administrative procedures”). 26 See Industrial Union Dept. v. American Petroleum Inst. 448 U.S. 607 (1980); American Tex. Mfg. Inst. v. Donovan, ___. U.S. ___, 101 S.Ct. 2478 (1981). 77In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), this Court admonished reviewing courts not to impose on adminis- trative agencies procedures beyond those required by Congress. /d. at 546-49. The opinion below does just the opposite by announcing that courts need not enforce even procedural requirements, such as § 8 of ERDDAA, that Congress expressly provided. 6 Judge Bazelon presaged the rationale for ERDDAA when he wrote: “[IJn cases of great technological complexity, the best way for courts to guard against unreasonable or erroneous administrative decisions is not for 13 This withdrawal of procedural checks exacerbates the grave constitutional questions posed by the court’s interpretation of § 109 of the Clean Air Act. As interpreted by the court below, § 109 permits EPA to set a standard of whatever stringency it chooses. In contrast to OSHA’s standard-setting authority re- cently construed by this Court in /ndustrial Union Dept. v. American Petroleum Inst., 448 U.S. 607 (1980), EPA’s stan- dard-setting authority here is said not to be confined by any consideration of whether the risk to be prevented is significant (P.A. 15a), or even whether the standard can be attained by human effort. P.A. 14a-15a. Such a construction of § 109 thus would give EPA, even more than OSHA, “unprecedented pow- er over American industry” and permit it to impose “enormous costs that might produce little, if any, discernible benefit.” 448 U.S. at 645. I. By Construing Section 307(d)(8) of the Clean Air Act to License Flagrant Violation of Mandatory Statutory Provisions, the De- cision Below Raises Far-Reaching Questions About the Func- tion and Scope of Judicial Review That Should Be Addressed by This Court. The decision below presents a critical question about the nature and scope of judicial review under the Clean Air Act: may an appellate court, basing its decision on nothing but speculation, excuse as inconsequential error an agency’s failure to comply with explicit and fundamental requirements laid down by Congress? The court below answered this question in the affirmative, even though it agreed that ERDDAA “explicitly mandates that standards be submitted to the Board for review,” and that the judges themselves to scrutinize the technical merits of each decision. Rather, it is to establish a decision-making process which assures a reasoned decision that can be held up to the scrutiny of the scientific community and the public.” International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 652 (D.C. Cir. 1973) (Bazelon, C.J., concurring). 14 “[alccordingly, the failure to submit the standards was a viola- tion of procedure required by law.” P.A. 22a-23a. Neverthe- less, the court excused this express statutory violation as only an inconsequential “procedural” error under § 307(d)(8) of the Act, on the ground that EPA probably would have issued the same standard in any event. P.A. 23a. The court’s sweeping interpretation of § 307(d)(8), if allowed to stand, would eliminate effective judicial review of most, if not all, rulemaking requirements for Clean Air Act standards and regulations. Nothing could be of more “central relevance” to the establishment of an air quality standard than the advice of the Science Advisory Board as to whether the standard is supported by credible scientific evidence. When it enacted § 8 of ERDDAA, Congress decided that independent review of EPA’s proposed standards was essential to ensure that final standards are based on adequate and reliable assessments of the scientific evidence. * By excusing EPA’s flagrant viola- tion of ERDDAA, the court’s decision nullifies Congress’ effort to ensure scientifically sound standards. Even more im- portant, the court’s opinion would preclude reversal of Clean Air Act rules for violation of virtually any rulemaking require- ment. For if EPA may exclude the statutory Science Advisory Board from the standard-setting process, it may curtail public ** Submission of the proposed standard to the Science Advisory Board was explicitly required by Congress in addition to submission of the draft criteria document. And for good reason, for it is at the proposal stage that EPA first draws factual conclusions and makes policy judgments that trans- late the underlying scientific information into a health standard affecting millions of people and vast amounts of society's resources. Although EPA is not required slavishly to follow the Board's advice, it is required to listen and to set forth the basis for its disagreement, if it disagrees. CAA § 307(d)(6B), P.A. Illa. Cf. CAA § 307(d)(3), P.A. 109a (requiring EPA to explain the reasons for any significant differences between EPA's proposal and the recommendations of the Scientific Review Committee established under § 109d), P.A. 104a-105a). 15 participation or otherwise tailor the rulemaking process to its convenience, based on no more than supposition that the final standard would not be substantially changed anyway. In support of its holding, the court offered essentially no legal or factual analysis, reasoning simply that “|bjecause any SAB review of the standard would have involved review of the criteria document, i.e., the scientific and technical basis for the standard, we cannot hold that the standard would likely have been significantly changed had it been submitted to the Board.” P.A. 23a. This conclusion rests on nothing but the court’s view of its limited review function (P.A. 13a), and bare spe- culation about what effect Science Advisory Board review of the proposal might have had on the final standard. The court implied that EPA’s violation of ERDDAA was inconsequential because the record contained support for the rule as promulgated. P.A. 23a." The difficulty with this rationale is that the record as a whole might not have provided adequate support for, or as a practical matter have allowed the Administrator to adopt, a final standard of 0.12 ppm if the * Remarkably, the court excused EPA's violation of ERDDAA by accepting the same EPA rationale that it had rejected in finding the violation in the first instance, i.e., that the Board's review of the proposal, after having reviewed the draft criteria document, would have been redundant. P.A. 22a-23a. Under the court’s broad reasoning, the Board's review of any proposed standard would be redundant. “The court's rationale is tantamount to requiring that the standard be unsupportable by the record before it can be reversed on procedural grounds. This approach effectively collapses the basis for procedural reversal into the “arbitrary and capricious” standard for substantive review, even though § 307(d)(9)(D) establishes a separate and independent basis for reversal where a procedural error might have affected the final standard. P.A. | 12a. Under § 307(d)(8), the question is not whether the standard is supported by the existing incomplete record, but rather whether the Administrator might have reached a different result if he had followed the standard-setting process prescribed by Congress. 16 Board had been allowed to comment on the proposed rule. ” Even the most dedicated proponent of EPA’s final standard could not readily have defended that result if both the Regula- tory Analysis Review Group (supra at 8) and the Science Advisory Board had supported a higher standard. * The legislative history of § 307(d)(8) shows that it was never intended to curtail judicial review or to sanction the blanket immunity from statutory violations granted by the court below. Thus, the House Committee where § 307(d) originated empha- sized that “in the committee’s view, appropriately broad admi- nistrative discretion to promulgate regulations to protect health or the environment musi be restrained by thorough and careful procedural safeguards. . . .” “ Later, the Conference Commit- tee reiterated that “the conferees intend that the courts continue their thorough, comprehensive review which has characterized judicial proceedings under the Clean Air Act thus far.” * ’ There is, of course, every reason to believe that the Board would have advocated a higher standard than the one actually adopted. Chairman Whit- tenberger concluded that the health sections of the draft criteria document were “speculative, incomplete, and heavily dependent on studies of ques- tionable validity.” J.A. 293. Another member, Dr. McCarroll, emphasized that “| what comes through loud and clear in most of these chapters to me is the fact that there is no demonstrable health effect before .25 ppm, either human or animal exposure.” J.A. Ex. 2 at 507. *’ The court made its prediction under § 307(d)(8) without the benefit of any showing by EPA that the Board's review would have been irrelevant. In remanding a case based on agency error, the late Judge Leventhal concluded that “whether the agency would have reached the same result if it had not made these erroneous findings . . . is the type of issue on which we think it is appropriate to insist on further guidance from the agency.” Braniff Airways, Inc. v. CAB, 379 F.2d 453, 467 (D.C. Cir. 1967). “H.R. Rep. No. 294, 95th Cong., Ist Sess., reprinted in [1977] U.S. Code Cong. & Ad. News 1077, 1398 (emphasis is added throughout this Petition unless otherwise noted). > H.R. Rep. No. 564, 95th Cong., Ist Sess., reprinted in [1977] U.S. Code Cong. & Ad. News 1502, 1559. 17 Indeed, it is questionable whether § 307(d)(8) has any ap- plication at all to EPA’s vioiation of ERDDAA. By its own terms, § 307(d)(8) applies only to “procedural determinations made by the Administrator under this subsection,” P.A. 11 1a, * and not to violations of entirely different statutes such as ERD )AA.*” Moreover, § 8 of ERDDAA ‘s more fairly char- acterized as a mandatory prerequisite to EPA’s exercise of its standard-setting authority, i.e., a “statutory limitation” within the meaning of § 307(d)(9)(C), P.A. 112a,™ rather than a “procedural” requirement subject to §§ 307(d)(8) and (d)(9)(D). ” *The Committee Report for H.R. 6161, where § 307(d) originated, shows that § 307(d)(8) was included to underscore the Administrator's discretion to grant cross-examination under § 307(d) based on the circumst- ances of each case. H.R. Rep. No. 294, 95th Cong., Ist Sess., reprinted in [1977] U.S. Code Cong. & Ad. News 1401, 1399-1400. The Conference Committee deleted the discretionary provision for cross-examination, but without explanation neglected to delete the companion provision of § 307(d)(8). H.R. Rep. No. 564, 95th Cong., Ist Sess., reprinted in {1977]| U.S. Code Cong. & Ad. News 1557-59. * Congress enacted ERDDAA several months after § 307(d)(8) became law, without any suggestion that violations of ERDDAA should be excused under § 307(d)(8). “Section 307(d)(9)(C) of the Act requires reversal whenever EPA’s action is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” P.A. i 12a. * Science Advisory Board review should be treated as just such a “statu- tory limitation” on EPA’s authority. Unlike most “procedural” rules, the requirement for Science Advisory Board review concerns not access by interested parties to the decision-making process, but rather access by the decisionmaker to the views of the especially qualified, disinterested review- ers comprising the Science Advisory Board. See also provisions of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) (which have been treated as mandatory adjuncts to an agency's exercise of its authority; Kleppe v. Sierra Club, 427 U.S. 390, 409 (1976), Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 787 (1976), 18 Accordingly, because the court below erroneously construed § 307(d)(8) in a manner that not only will excuse violations of a critical standard-setting reform provision, but also severely curtail judicial review of future Clean Air Act rulemakings, this is a compelling case for the exercise of this Court's discretion- ary jurisdiction. II. The Decision Below Raises Grave Constitutional Questions By Construing Section 109 of the Clean Air Act as Placing No Limitations on EPA’s Standard-Setting Discretion. The decision below removes all effective constraints on EPA’s discretion, permitting it to set national ambient air quality standards of whatever stringency it chooses. Given the court’s expansive interpretation of § 307(d)(8) to permit depar- tures from the rulemaking process, it becomes all the more critical that there be discernible substantive limits on EPA’s standard-setting authority. But the court below found none. EPA’s authority to promulgate primary air quality standards derives entirely from § 109 of the Act, which describes those standards simply as “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.” P.A. 104a. The conceded purpose of such standards thus is to “protect the public health.” No- where, however, does the Act specify exactly what degree of protection Congress meant to provide when it used terms such as “adequate margin of safety,” or “requisite to protect the public health.” Obviously EPA must choose a specific level of protection when it sets a standard. But as interpreted by EPA, § 109 would merely exhort EPA to pursue a worthy objective, while excluding consideration of any factors bearing on how far to go in pursuit of that goal. Calvert Cliffs’ Coordinating Comm. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1114-15 (D.C. Cir. 1971), Duck River Preservation Ass'n v. TVA, 410 F. Supp. 758, 766-67 (E.D. Tenn. 1974), aff'd mem., 529 F.2d 524 (6th Cir. 1976)). 19 Neither EPA nor the court below defined key terms in § 109 in such a way as to place any constraints on EPA’s discretion to set a standard of whatever stringency it chooses. Rather than confining its standard-setting mandate within bounds capable of review by the courts, EPA simply recited the statutory text, and emphasized the paramount role of its “judgment” in iden- tifying the desirable level of public health protection. “ EPA conceded that unspecified economic and social considerations would preclude setting a zero-level standard to avoid all health risks, but nowhere did EPA or the court even attempt to limit the Agency's judgment to protecting against significant risks to public health. Moreover, both expressly rejected other factors that could provide a check on EPA’s discretion, by precluding consideration of all practical matters, including whether the standard could be attained through human effort. P.A. 14a-15a. This extreme construction of § 109 would grant EPA such unchecked discretion as to render the provision an unconstitu- tional delegation of legislative authority. Congress may not simply leave legislative decisions with enormous consequ- ences, such as setting the ozone standard, to the unconfined “judgment” of an administrative officer. Rather, the decisions of this Court require that Congress set out an “intelligible principle” to guide administrative decisions, and to serve as a standard against which the administrative decision may be reviewed by the courts. Hampton & Co. v. United States, 276 U.S. 394, 409 (1928), Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935), Industrial Union Dept. v. American Pet- roleum Institute, 448 U.S. 607, 685-87 (1980) (concurring opinion of Justice Rehnquist). “EPA explained the statutory provision for an “adequate margin of safety” by saying simply that “EPA feels that the decision regarding an adequate margin of safety is a judgment which must be made by the Administrator after weighing ali the medical evidence bearing on ozone.” (emphasis in original). P.A. 70a. EPA offered no more limited construction of the term. 20 The severe problems posed by sweeping delegations of leg- islative authority are vividly illustrated by this Court's recent decision in Industrial Union Dept. v. American Petroleum Institute (the Benzene case), 448 U.S. 607 (1980), which inter- preted analogous provisions of the Occupational Safety and Health (OSH) Act, 29 U.S.C. § 651 et seq., to avoid an unconstitutional delegation. The OSH Act gives OSHA broad discretion to issue health and safety standards, but requires that those standards be “feasible” (§ 6(b)(5), 29 U.S.C. § 655(b)(5)), as well as “reasonably necessary or appropriate to provide safe or healthful employment” (§ 3(8), 29 U.S.C. § 652(8)). OSHA claimed that these provisions required it to set standards at the lowest technologically feasible level that would not impair the viability of the industries regulated. 448 U.S. at 639. The Court rejected OSHA's contention, and con- strued § 3(8) as requiring OSHA to make a threshold finding of “significant risk” before issuing a standard. 448 U.S. at 642. Justice Stevens reasoned that, unless § 3(8) were so construed, “the statute would make such a ‘sweeping delegation of legisla- tive power’ that it might be unconstitutional” under the Court's prior decisions. /d. at 646. The Clean Air Act as construed by EPA and the court below would present an even more grievous delegation problem than did the OSH Act. Even before this Court’s Benzene decision, OSHA’s discretion was conceded to be constrained by the requirement that standards protect only against “material im- pairment” of health, and that standards be technologically and economically “feasible.” 29 U.S.C. § 655(b)(5). By contrast, the court below construed § 109 of the Clean Air Act not only to dispense with any requirement of material health impairment or significant risk (P.A. 15a-16a), but also to preclude any consid- eration of feasibility. P.A. 14a-15a. The constitutional deficiency resulting from the lower court’s interpretation of § 109 is compounded by its construc- 21 tion of § 307(d)(8), which would preclude judicial enforcement of even the most fundamental procedural requirements. *' Here, the court of appeals essentially nullified applicable procedural requirements, even while affirming a sweeping grant of sub- stantive authority to the Agency. By so doing, the court has left no effective judicial checks, either substantive or procedural, on EPA’s discretion. The standard-setting provisions of § 109 can be upheld as constitutional if properly construed to impose effective limita- tions on EPA’s authority. “* Although the decision below gives EPA no meaningful guidance on the degree of protection to provide for public health, the statutory text of § 109(b)(1) can be and should have been construed to place reasonable con- straints on EPA’s standard-setting authority. By describing primary standards in § 109(b)(1) as those “requisite to protect the public health,” Congress indicated that standards should be no more stringent than necessary to provide protection against significant risks to health. Therefore, like the OSH Act requirement that standards be “reasonably necessary or appropriate to provide safe or healthful employment,” § 109(b)(1) should have been construed to require EPA to make *! The presence of mandatory administrative procedures may be important in upholding broad substantive grants of authority from constitutional in- firmity. Lichter v. United States, 334 U.S. 742, 786-87 (1948). See also Schechter Corp. v. United States, 295 U.S. 495, 553 (1935), where the Court found the statutory provision to be unconstitutional because, in part, it lacked the procedural requirements found in other regulatory statutes; Pana- ma Refining Co. v. Ryan, 293 U.S. at 432. * Grants of administrative authority should be reasonably construed whenever possible to avoid having to reach the constitutional question posed by the nondelegation doctrine. Industrial Union Dept. v. American Pet- roleum Institute, 448 U.S. 607, 646 (1980), National Cable Television Ass'n v. United States, 415 U.S. 336. 341-43 (1974). te tN a threshold finding of significant risk before setting the standard. ** The legislative history supports such a requirement of signifi- cant risk for ambient air quality standards. Thus, the Senate Committee in which § 109 originated said that primary stan- dards should provide a “reasonable degree of protection. . . against hazards which research has not yet identified... .”* The decision below goes far beyond these limitations to permit EPA to set standards at any point on the continuum of risk. Nor did Congress intend for EPA, while protecting the public health, to blind itself to practical considerations such as whether a standard can be attained at all, or whether an additional increment of protection is “reasonable” in light of what society must sacrifice to achieve it. The entire structure of the Act contemplates the attainment of standards. In the absence of an express provision to the contrary, § 109(b)(1) should be con- strued to require the Administrator to consider both expected health benefits and attainment costs in deciding what standard provides an “adequate margin of safety.” This result comports with a common-sense reading of the statute. * ** In the Court's Benzene decision, Justice Stevens said that “* ‘safe’ [and presumably ‘healthful’ as well] is not the equivalent of ‘risk-free.’ There are many activities that we engage in every day—such as driving a car or even breathing city air — that entail some risk of accident or material health impairment: nevertheless, few people would consider these activities “un- safe." ” 448 U.S. at 642. “S. Rep. No. 1196, 91st Cong., 2d Sess. 10 (1970). * Any other interpretation would waste society's scarce resources, and thereby diminish society's ability to protect public health or to achieve other important objectives. Justice Stevens made a similar point in the Benzene case when he concluded that “[i]n the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry that would result from the Government's view. . . . [T]he Government's theory would give OSHA power to impose enormous costs that might produce little. if any. discernible benefit.” 448 U.S. at 645. 23 Indeed, EPA itself is unable to interpret § 109 in a manner that excludes practical considerations altogether. “ Thus EPA concedes that without some consideration of practical factors in determining what level of protection is “adequate,” there would be no reason to accept less than the absolute safety of a zero standard. P.A. 82a. But given its own concession that such factors preclude a zero-level standard, EPA cannot argue that the statute bars consideration of the same factors in determining whether a “margin of safety” is “adequate” for standards set at a level above zero. Rather, EPA’s inconsistency can only be interpreted as an attempt to maintain unfettered discretion to consider practical factors whenever it wants, without being held accountable on judicial review. In short, § 109 of the Clean Air Act should be construed as placing reasonable limits on EPA’s standard-setting discretion. Otherwise, § 109 must be invalidated as an unconstitutional delegation because Congress failed to make the “hard choices” on “quintessential” legislative issues of great importance. 448 U.S. at 686 (concurring opinion of Justice Rehnquist). * Practical factors should be considered also because EPA construes the related provisions of § 112 of the Clean Air Act, P.A. 105a, to permit consideration of such factors in setting emission standards for “hazardous” air pollutants. 44 Fed. Reg. 58642, 58661 (1979). Section 112 differs from § 109 in that § 112 governs the class of more serious “hazardous” pollu- tants, and therefore requires an “ample” rather than just an “adequate” margin of safety. Yet in construing the phrase “ample margin of safety” in § 112, EPA has said that “there is no reason to believe that Congress intended to make air pollution practically the sole facet of American ".fe from which the government would attempt to eliminate risk entirely.” /d. Accordingly, EPA considered economic and technological factors in prom- ulgating standards under § 112 for both asbestos and vinyl chloride. See 38 Fed. Reg. 8820 (1973) (asbestos); 40 Fed. Reg. 59532 (1975), 41 Fed. Reg. 46560 (1976), 42 Fed. Reg. 28154 (1977) (vinyl chloride). 24 CONCLUSION For the foregoing reasons, the Court should grant this Peti- tion for Certiorari. Respectfully submitted, Epwarp W. Warren* Ropert F. VANVoorHEES Joun S. Hann KIRKLAND & ELLs Of Counsel: 1776 K Street, N.W. Stark RITCHIE Washington, D.C. 20006 Davin T. DEAL (202) 857-5000 American Petroleum Counse! for American Institute Petroleum Institute EpMuNp B. Frost and Member Company Petitioners Chemical Manufacturers Joun H. PICKERING Association WituiaM H. Lewis, Jr. David R. JoHNsON Witmer, CuTLer & PICKERING 1666 K Street, N.W. Washington, D.C. 20006 Counsel for Chemical Manufacturers Association November 10, 1981 J. MarsHALt COLEMAN ATTORNEY GENERAL OF VIRGINIA Rocer L. CHarre ASSISTANT ATTORNEY GENERAL Suite 308 11 South 12th Street Richmond, Virginia 23219 Counsel for the Commonwealth of Virginia, ex rel. the State Air Pollution Control Board BERNARD J. REILLY 1007 Market Street Wilmington, Delaware 19898 Counsel for E. 1. du Pont de Nemours & Company *Counsel of Record 25 Wirkes C. Ropinson J. Scort Brown Gute Coast & Great PLAINs LeGat FOUNDATION 127 West 10th Street Room 1022 Kansas City, Missouri 64105 Counsel for St. Louis Regional Commerce and Growth Association Jan Eric CARTWRIGHT ATTORNEY GENERAL OF OKLAHOMA Neat Leaver ASSISTANT ATTORNEY GENERAI 112 State Capitol Building Oklahoma City, Oklahoma 73105 Counsel for State of Oklahoma OCTOBER TERM, 1981 AMERICAN PETROLEUM INSTITUTE, ef al., Petitioners, v. ANNE M. GorSUCH, ADMINISTRATOR, AND ENVIRONMENTAL PROTECTION AGENCY, Respondents. APPENDIX TO JOINT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Of Counsel: Epwarp W. WarREN* Stark RITCHIE Ropert F. VANVooRHEES Davip T. Dear Joun S. HAHN American Petroleum KIRKLAND & ELLis Institute 1776 K Street, N.W. Washington, D.C. 20006 i Te (202) 857-5000 Chemical Manufacturers Counsel for American Petroleum Institute and Member Company Petitioners Association November 10, 1981 Joun H. PickERING WituiaM H. Lewis, Jr. Davip R. JoHNSON Wiimer, CuTLer & PICKERING 1666 K Street, N.W. Washington, D.C. 20006 Counsel for Chemical Manufacturers Association *Counsel of Record Additional counsel listed inside cover. ae PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C. J. MarsHatt CoLEMAN ATTORNEY GENERAL OF VIRGINIA Rocer L. CHAFFE ASSISTANT ATTORNEY GENERAL Suite 308 11 South 12th Street Richmond, Virginia 23219 Counsel for the Commonwealth of Virginia, ex rel. the State Air Pollution Control Board BERNARD J. REILLY 1007 Market Street Wilmington, Delaware 19898 Counsel for E. 1. du Pont de Nemours & Company Wirkes C. Rosinson J. Scott Brown Gutr Coast & Great PLains LEGAL FouNDATION 127 West 10th Street Room 1022 Kansas City, Missouri 64105 Counsel for St. Louis Regional Commerce and Growth Association Jan Eric CARTWRIGHT ATTORNEY GENERAL OF OKLAHOMA Neat LEADER ASSISTANT ATTORNEY GENERAL 112 State Capitol Building Oklahoma City, Oklahoma 73105 Counsel for State of Oklahoma la APPENDIX A United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 79-1104 AMERICAN PETROLEUM INSTITUTE, PETITIONER Vv. DouGLAS M. CosTLE, ADMINISTRATOR, and ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT AMERICAN PETROLEUM INSTITUTE AND 15 OF ITS MEMBER COMPANIES, CHEMICAL MANUFACTURERS ASSOCIATION, THE ST. Louis REGIONAL COMMERCE & GROWTH ASSOCIATION, NATURAL RESOURCES DEFENSE COUNCIL, ET AL., THE STATE OF OKLAHOMA, E.I. Du Pont DE Nemours & Co., INTERVENORS No. 79-1201 E.I. Du PonT DE NEMOURS AND COMPANY, PETITIONER Vv. DouGLas M. CosTLE, ADMINISTRATOR, and ENVIRON MENTAL PROTECTION AGENCY, RESPONDENT Bills of costs must be filed within 14 days after entry of judg.aent. The court looks with disfavor upon motions to file bills of costs out of time. No. 79-1222 AMERICAN PETROLEUM INSTITUTE, ET AL., PETITIONERS Vv ENVIRONMENTAL PROTECTION AGENCY, and DoucLas M. COSTLE, ADMINISTRATOR No. 79-1290 CHEMICAL MANUFACTURERS ASSOCIATION, PETITIONER v. DouG.Las M. CoSTLE, ADMINISTRATOR, and ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT No. 79-1335 THE NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL., PETITIONERS Vv. DouGLas M. CosTLE, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT No. 79-1359 CHEMICAL MANUFACTURERS ASSOCIATION, PETITIONER Vv. DoucLas M. CosTLE, ADMINISTRATOR, and ENVIRON MENTAL PROTECTION AGENCY, RESPONDENT 3a No. 79-1362 THE CONNECTICUT LUNG ASSOCIATION, INC., PETITIONER Vv. DouGLAS M. CoSTLE, ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT No. 79-1356 SIERRA CLUB, PETITIONER Vv. DouGLas M. COSTLE, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT No. 79-1365 COMMONWEALTH OF VIRGINIA, ex rel. THE STATE AIR POLLUTION CONTROL BOARD, PETITIONER Vv. ENVIRONMENTAL PROTECTION AGENCY and DouGLAS M. COSTLE, ADMINISTRATOR, RESPONDENT No. 79-1367 CITY OF HOUSTON, TEXAS, PETITIONER Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and DouGLAS M. COSTLE, ADMINISTRATOR, RESPONDENT Petitions for Review of Orders of the Environmental Protection Agency 4a Argued February 26,1980 ~~ Pe — xa | C2 we ws + Decided September 3,1981 ~" § -.. Edward W. Warren with whom Robert F. Van Voor- hees, John S. Hahn, Stark Ritchie and David T. Deal were on the brief, for American Petroleum Institute petitioner in Nos. 79-1104 and 79-1222 and intervenor in Nos. 79-1335, 79-1356 and 79-1362. Roger L. Chaffe, Assistant Attorney General, for Com- monwealth of Virginia, etce., petitioner in No. 79-1365. Frederick S. Fisher and James E. Ryan, Jr., also en- tered appearances for Commonwealth of Virginia, etc., petitioner in No. 79-1365. Courtenay Ellis with whom David A. Donohoe was on the brief, for City of Houston, Texas, petitioner in No. 79-1367. Daniel Joseph also entered an appearance for City of Houston, Texas, petitioner in No. 79-1367. Richard Ayres with whom David D. Doniger was on the brief, for Natural Resources Defense Council, Inc., et al., petitioner in Nos. 79-1335, and 79-1362 and in- tervenor in No. 79-1104. John H. Pickering, Andrew T. A. MacDonald and Edmund B. Frost were on the brief, for Chemical Manu- facturers Association petitioner in Nos. 79-1290 and 79- 1359 and Intervenor in Nos. 79-1104, 79-1335, 79-1356 and 79-1362. David R. Johnson and John Stephen Law- rence, Jr., also entered appearances for Chemical Manu- facturers Association, petitioner in Nos. 79-1290 and 79- 1359 and intervenors in Nos. 79-1335, 79-1356 and 79-1362. Joseph J. Brecher was on the brief, for Sierra Club, Petitioner in No. 79-1356. Peter J. Herzberg also entered an appearance for Sierra Club, petitioner in No. 79-1356. Sa Patrick K. O’Hare, Attorney, Environmental Protec- tion Agency and Patrick J. Cafferty, Jr., Attorney, De- partment of Justice with whom Angus Macbeth, Acting Assistant Attorney General, Donald W. Stever, Attorney, Department of Justice and Gerald K. Gleason, Deputy Associate General Counsel, Environmental Protection Agency were on the brief, for respondents. Jeffrey O. Cerar, Attorney, Environmental Protection Agency also entered an appearance for respondent, Environmental Protection Agency. Christopher S. Bond and Charles A. Blackman were on the brief, for the St. Louis Regional Commerce and Growth Association, intervenor in Nos. 79-1104, 79-1335, 79-1356 and 79-1362. Charles S. Rogers, Assistant Attorney General, State of Oklahoma also entered an appearance for State of Oklahoma, etc., intervenor in No. 79-1104. Robert R. Bonezek, Carl B. Everett, and Bernard J. Reilly also entered appearances for E.I. DuPont De Nemours and Company petitioner in No. 79-1201 and intervenor in Nos. 79-1104, 79-1335, 79-1356 and 79-1362. Before: RoBB, WALD and Mikva, Circuit Judges. Opinion for the Court filed by Circuit Judge Ross. Opinion dissenting in part filed by Circuit Judge WALD. Ross, Circuit Judge: The petitions for review con- solidated in this case challenge the primary and second- ary national ambient air quality standards’ for ozone promulgated by the Environmental Protection Agency (EPA) under the Clean Air Act, as amended. 42 U.S.C. §§ 7401, et seg. (Supp. III 1979). EPA established both the primary and secondary standards for ozone at 0.12 *These regulations are codified at 40 C.F.R. § 50.9(a) (1980). 6a parts per million (ppm) in final regulations published on February 8, 1979. 44 Fed. Reg. 8202. Petitioners American Petroleum Institute (API), et al., the City of Houston, and the Commonwealth of Virginia contend that the Administrator of EPA erred by establishing too stringent standards. Petitioner National Resources De- fense Council (NRDC), et al., argues that the Admin- istrator erred by establishing standards that are too lenient. Various petitioners raise procedural challenges, and certain petitioners challenge regulations which im- plement the standards. We uphold the ozone standards because they are proper under the Act and such pro- cedural errors as did occur do not require invalidation of the final standards. I. The standards challenged in this case establish re- strictions on permissible levels of ozone. As with other photochemical oxidants, ozone is not emitted directly into the air, but is produced by complex chemical reactions between organic compounds (precursors) and nitrogen oxides in the presence of sunlight. Oxidant precursors are organic compounds which can occur naturally but are in large measure man-made. Sources of precursors include automobile emissions of hydrocarbons, chemical plant emissions, and gasoline vapors. Photochemical oxi- dant concentrations can also exist where ozone from the stratosphere intrudes into the lower atmosphere or where naturally occurring nitrogen oxides react with hydro- carbons produced by vegetatio:z.. Although ozone is but one of many photochemical oxidants, total oxidant pol- lution has been measured by reference to the ozone level in the air since 1971. Ozone is the primary cause of the ill effects associated with sinog, of which it usually comprises 65-100%. At certain concentration levels, ozone irritates the respira- tory system and causes coughing, wheezing, chest tight- 7a ness, and headaches. Due to its irritating nature, ozone can aggravate asthma, bronchitis, and emphysema. Some studies indicate that chronic exposure to fairly low levels of ozone may reduce resistance to infection and alter blood chemistry or chromosone structure. Ozone can de- stroy vegetation, reduce crop yield, and damage exposed materials by causing cracking, fading, and weathering. ‘the goal of the Clean Air Act is to protect the public health and welfare by improving the quality of the na- tion’s air. 42 U.S.C. § 7401/b). Improved air quality is accomplished by the establishment of national am- bient air quality standards (NAAQS) and by implemen- tation thereof through state programs to control local sources of pollution. 42 U.S.C. § 7410. The Act directs the Administrator to establish two types of NAAQS. Primary ambient air quality standards are “standards the attainment and maintenance of which in the judg- ment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.” 42 U.S.C. § 7409(b) (1). Secondary standards “specify a level of air quality the at- tainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or antici- pated adverse effects associated with the presence of such air pollutant in the ambient air.” 42 U.S.C. § 7409 (b) (2). State control programs must provide for the attainment of primary standards “as expeditiously as practicable but . . . in no case later than three years from the date of aproval of such plan...” 42 U.S.C § 7410 (a) (2) (A) (i). State programs that implement seccnd- ary standards must specify a “reasonable time at which such secondary standard will be attained”. 42 U.S.C. § 7410(a) (2) (A) (ii). Thus, the ozone standards at is- sue in this case must be implemented through state plans within three years for the primary standard and within 8a a reasonable time for the secondary standards.? Lead Industries Ass’n v. EPA, No. 78-2201 (D.C. Cir. June 27, 1980) slip op. at 7-8, cert. denied, 49 U.S.L.W. 3428 (Dec. 8, 1980). EPA promulgated primary and secondary standards for photochemical oxidants (i.e., ozone) in 1971. Both standards were established at an 0.08 ppm hourly aver- age not to be exceeded more than once a year. 36 Fed. Reg. 8187 (1971). The method used to determine com- pliance with the 1971 standards measured only ozone. 43 Fed. Reg. 26967 (1978). In 1976 EPA began to revise the 1971 standards and in April 1977 requested data and information relevant to the revision. 42 Fed. Reg. 20493 (1977). As part of the revision, EPA established a working group within the Criteria and Special Studies Office of its Office of Research and Development to develop a “criteria document”. A criteria document “accurately reflect[s] the latest scientific knowledge useful in in- dicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities.” 42 U.S.C. § 7408(a)(2); see 42 U.S.C. § 7409(a). In the early stages of preparing the ozone criteria document EPA retained a panel of expert en- vironmental consultants (the Shy Panel) and sought their opinions on the ozone concentration levels at which adverse health effects might be experienced. The Shy Panel concluded that “short term exposures to ozone in the range of 0.15 to 0.25 ppm may impair mechanical function of the lung, and may induce respiratory and 2 Under 42 U.S.C. § 7501(a) (2) a state that cannot meet the NAAQS for ozone by December 31, 1982 despite the im- plementation of “‘all reasonably available measures” may seek approval of a plan that extends the deadline for compliance to December 31, 1987. 9a related symptoms in sensitive segments of the popula- tion”. (J.A. 270) The panel recommended that the pri- mary standard remain at 0.08 ppm. (J.A. 277) The panel’s recommendations and conclusions were included in the draft criteria document. In 1974 the Administrator of the EPA established a Science Advisory Board (SAB) to assist in establish- ing NAAQS, among other functions. During the re- vision of the ozone standards Congress passed the En- vironmental Research, Development, and Demonstration Authorization Act of 1978, PuB.L. 95-155, 91 Stat. 1260 (1978) (ERDDAA), which requires the Administrator to submit to the SAB any “proposed criteria document, standard, limitation, or regulation, together with rele- vant scientific and technical information in the posses- sion of the [EPA] . . . on which the proposed action is based.” 42 U.S.C. § 4365(e). During the revision of the ozone standard the SAB reviewed two full drafts and a third draft of the summary chapter of the ozone cri- teria document and offered comments on its content. After examining the summary of the third draft, six of the eleven SAB members voted to approve the cri- teria document, with reservations and recommended changes. Two members rejected the document, and three members offered no judgment. The parties dispute the effect of this “approval” under the Clean Air Act. Neither the final criteria document nor the final ozone standards were made available to the SAB for comment. As a further aid to the Administrator in establishing the ozone standards, EPA conducted a “risk assessment study”. This study combined medical opinions as to the necessary ozone levels for creation of certain adverse health effects (e.g., aggravation of emphysema) with pre- dictions as to peak ozone levels in a five-year period. (J.A. 561-73) The study attempted to predict the prob- ability of creating certain health problems under vari- 10a ous possible standards. The Shy Panel relied on the results of this study in recommending that the primary standard remain at 0.08 ppm. Although the risk assess- ment study results were summarized in the preamble to the final regulations, 44 Fed. Reg. 8216 (1979), the Administrator acknowledged that the method used in arriving at the results was not completely reliable. 44 Fed. Reg. 8210-11 (1979). The parties dispute whether the results of the risk assessment study played a sig- nificant role in the establishrrent of the ozone standards. On June 22, 1978 EPA published the proposed primary and secondary standards for ozone. 43 Fed. Reg. 26962. The proposed primary standard was raised to 0.10 ppm, while the proposed secondary standard remained at 0.08 ppm. EPA also proposed a revision in the measuring standard (the one-exceedance-per-year attainment meas- ure) by substitution of a new standard. Under the old standard, as long as the 6.08 ppm standard was not exceeded more than once a year, the standard was met. The new measuring standard is met when “the expected number of hour[s] per calendar year with concentra- tions above 0.10 ppm is less than or equal to one [over a three year period)”. 43 Fed. Reg. 26968 (1978). In setting the proposed primary standard at 0.10 ppm the Administrator relied on studies showing adverse health effects at ozone concentrations of 0.15 to 0.35 ppm. 43 Fed. Reg. 26966 (1978). He also relied on medical opinions and some of the conclusions of the risk assess- ment study. /d. at 26966-67. The proposed secondary standard was based on predictions as to the effects of certain ozone concentrations on crop yields due to leaf damage. 43 Fed. Reg. 26969 (1978). After publication of the proposed standards, EPA con- ducted four public hearings on the standards and re- ceived numerous comments. Various governmental agen- cies commented on the proposed standards, including the lla Departments of Interior, Energy, and Transportation, the United States Public Health Service, the Virginia Air Pollution Control Board, and various White House officials. 44 Fed. Reg. 8206-07 (1979). Some of these comments occurred after the official comment period closed and are the subject of dispute in this case. In February 1979 EPA published final primary and secondary standards for ozone, raising both to 0.12 ppm. 44 Fed. Reg. 8202. The Administrator determined that “the most probable level for adverse health effects in sensitive persons, as well as in healthier (less sensitive) persons who are exercising vigorously, falls in the range of 0.15 to 0.25 ppm.” 44 Fed. Reg. 8216 (1979). He based his conclusion on the criteria document, the com- ments submitted on the proposed standards, the report of the Shy Panel, and medical opinions collected during the risk assessment study. 44 Fed. Reg. 8215-16 (1979). The Administrator also concluded that the 0.12 ppm standard provides an adequate margin of safety. 44 Fed. Reg. 8216-17 (1979). He raised the proposed secondary standard based on a determination that average daily maximum ozone concentrations of 0.12 ppm would not harm crop yields. 44 Fed. Reg. 8217-18 (1979). Finally, in addition to establishing ozone standards, EPA pub- lished four models for determining the amount of hydro- carbon reduction necessary to meet the standards. 44 Fed. Reg. 8234 (1979). No petitions for reconsideration of the standards were filed with EPA. Petitions for re- view pursuant to 42 U.S.C. § 7607(b) (1) followed. II. ISSUES PRESENTED By THE PETITIONS The petitions for review present both substantive and procedural challenges to the primary and secondary ozone standards promulgated by EPA. Some petitioners con- tend that the standards are irrational and unsupported 12a by the record. Other petitioners argue that the stand- ards do not contain an adequate margin of safety, are too stringent given naturally occurring ozone levels, and are not economically feasible. It is also argued that the measurement standards and control strategies promul- gated by EPA are unreasonable and unsupported by the record. As to the procedural allegations, it is argued that the Administrator erred in his use of the Science Advisory Board, the Shy Panel, and the risk assessment study. Various petitioners contend that certain items excluded from the record should have been included, while other petitioners argue that some material was untimely inserted in the record. After discussing the standard of review which governs petitions for review under the Clean Air Act, we address each significant argument in turn. III. STANDARD OF REVIEW Section 3¢7 of the Clean Air Act provides, in relevant part: (b) (1) A petition for review of action of the Ad- ministrator in promulgating any national primary or secondary ambient air quality standard . . . may be filed only in the United States Court of Appeals for the District of Columbia. . - = (d) (1) This subsection applies to— (A) the promulgation or revision of any national ambient air quality standard under section 7409 of this title. (9) In the case of review of any action of the Administrator to which this subsection ap- plies, the court may reverse any such action found to be— l3a (A) arbitrary, capricious, an abuse of dis- cretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege or immunity ; (C) in excess of statutory jurisdiction, au- thority, or limitations, or short of statutory right; or (D) without observance of procedure re quired by law, if (i) such failure to observe such procedure is arbitrary or capricious, (ii) the requirement of .. . [a timely objec- tion] has been met, and (iii) [the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made] .... 42 U.S.C. § 7607. These provisions of the Act assign this court a re- stricted role in reviewing air quality standards. Lead Industries Ass’n, Inc. v. EPA, supra at 30. The Ad- ministrator’s construction of the Act will be upheld if it is reasonable, id. at 29-30, and though it is our duty to undertake a “searching and careful” inquiry into the facts, our view of the evidence “is not designed to en- able us to second-guess the agency’s expert decision- maker.” Jd. at 26, 27. Reversal for procedural defaults under the Act will be rare because the court must first find that the Administrator was arbitrary or capricious, that he overruled a relevant and timely objection on the point in question, and that the errors were so sig- nificant that the challe:.zed rule would likely have been different without the error. 42 U.S.C. § 7607(d) (9) (D); Sierra Club v. Costle, No. 79-1565 (D.C. Cir. April 29, 1981) slip op. at 182-83, 193-94. I4a IV. SUBSTANTIVE CHALLANGES TO THE OZONE STANDARDS Petitioner American Petroleum Institute contends that the primary ozone standard is not rational because, it alleges, no adverse health effects have been proven below 0.25 ppm with two hours exposure. (Br. for API at 31- 44) API also argues that EPA must consider whether the 0.12 ppm standard is attainable and whether the anticipated costs of meeting that standard are justified when compared with the results to be achieved. Jd. at 51-68. Petitioner Houston contends that the ozone stand- ards are arbitrary and capricious because natural ozone levels and other physical phenomena in the Houston area prevent it from meeting the standards. (Br. for Houston at 4-22) Houston argues that the standards are also arbitrary and capricious because the control strategies promulgated by EPA will not reduce ozone levels. Id. at 22-26. Petitioner Commonwealth of Virginia contends that EPA acted arbitrarily and capriciously in retaining the single hour averaging test for measuring compliance with the ozone standards. Virginia argues that the method chosen is not supported by logic or medical evi- dence, is costly, and will have no demonstrable bene- ficial effect on air quality. (Br. for Virginia at 3-13) Petitioner Natural Resources Defense Council contends that the Administrator misinterpreted the Act in adopt- ing standards for ozone alone and thus rescinding exist- ing standards for other photochemical oxidants. (Br. for NRDC at 35-44) NRDC also argues that the Ad- ministrator failed to establish an adequate margin of safety in the primary ozone standard. /d. at 44-66. API’s argument that the Administrator erred in not considering attainability and cost justifications for the ozone standards was specifically rejected in the Lead In- dustries case, supra at 32. We stated there that under 15a section 109 of the Act “the Administrator may not con- sider economic and technological feasibility in setting air quality standards . . . [because] of a deliberate decision by Congress to subordinate such concerns to the achievement of health goals.” Lead Industries, supra at 33. In a lengthy analysis of the Act and its legislative history we concluded that the “technology-forcing” re- quirements of the Act were expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or tech- nologically infeasible. Lead Industries, supra at 34-35. API’s other argument is that the standards are not suported by substantial evidence. We reject this argu- ment because the record is replete with support for the final standards. The studies discussed in the criteria document constitute a rational basis for the finding that adverse health effects occur at ozone levels of 0.15 to 0.25 ppm for sensitive individuals. We need not find that each study discussed in the criteria document is accurate and reliable. The proper function of the court is not to weigh the evidence anew and make technical judgments; our role is limited to determining if the Ad- ministrator made a rational judgment. We find that the Administrator’s conclusion that normal body functions are “disrupted” at low ozone levels, 44 Fed. Reg. 8213 (1979), is supported by the studies of DeLucia and Adams (effects at 9.15 to 0.30 ppm) (J.A. Ex. 1 at 9-18), Hazucha (effects at 0.25) (J.A. Ex. 1 at 1-15), Wayne (effects at 0.15) (J.A. Ex. 1 at 10-57), Herman (effects at 0.15 to 0.39) (J.A. Ex. 1 at 1-22-23), among others indicated in the record. The court finds no reason to hold that the Administrator abused his discretion in crediting the various studies relied on, even given the acknowledged uncertainties in some of the conclusions. The Adminis- trator noted that “a clear threshold of adverse health effects cannot be identified with certainty for ozone.” 44 Fed. Reg. 8213 (1979). Because the Administrator 16a acknowledged the uncertainty of his task and made a rational judgment, we cannot second-guess his conclu- sion. Lead Industries, supra, at 25-28; See Motor & Equipment Manufacturers Ass’n v. EPA, 201 U.S. App. D.C. 109, 119-20, 627 F.2d 1095, 1105-06 (1979), cert. denied, 446 U.S. 952 (1980); Hercules, Inc. v. EPA, 194 U.S. App. D.C. 172, 598 F.2d 91 (1978). Houston’s argument that because natural factors make attainment impossible the Administrator acted arbitrarily and capriciously in setting the primary ozone standard at an “unattainable” level is addressed in part by our analysis of API’s attainability argument. Attainability and technological feasibility are not relevant considera- tions in the promulgation of national ambient air quality standards. Lead Industries, supra at 32-33. Further, the agency need not tailor national regulations to fit each region or locale. NRDC v. EPA, No. 79-1639 (D.C. Cir. May 7, 1981) slip op. at 34. We also note that com- pliance extensions are available in some cases, 42 U.S.C. § 7501(a)(2) (Supp. III 1979), and that Congress is aware that some regions are having difficulty in meeting the national standards. See 42 U.S.C. § 7501, et seq. (Supp. III 1979) (Part D of Title I, setting special re- quirements for states which have not met standards). Houston also contends that EPA’s strategies for de- ducing ozone concentrations rely on a faulty premise: that ozone is caused in part by high concentrations of hydrocarbons in the air. In arguing this point Houston relies on a study which allegedly establishes that reduc- tion of hydrocarbon levels will not reduce ozone levels.’ * Houston aiso appended to its brief as Exhibit A a recent study which it contends supports its position in this regard. That exhibit is not part of the record and cannot under- cut the Administrator’s conclusions on review. 42 U.S.C. § 7607(d) (7) (A) (Supp. III 1979) ; see American Petroleum Institute v. Costle, 197 U.S. App. D.C. 254, 609 F.2d 20 (1979). 17a The study in question was considered by EPA and re- jected on several grounds which undercut the reliability of its conelusions. 44 Fed. Reg. 8235 (1979). Because control of ozone by reduction of hydrocarbon levels is an established methodology (J.A. Ex. 1 at 1-2, 1-3) and because Houston’s record evidence in rebuttal is sparse, we cannot find that the Administrator is wrong on this issue. Petitioner Commonwealth of Virginia challenges the method which EPA selected to measure compliance with the primary standard. The method chosen by EPA meas- ures the highest average ozone level in any one hour to determine compliance. 44 Fed. Reg. 8217-18 (1979). Virginia argues that it would be better to use a daily average ozone level to measure exposure. We find that the Administrator’s selection of the maximum hourly average method is reasonable because it is calculated to measure the maximum exposure, which has been found to be a relevant factor in determining the likely .con- sequences of ozone exposure. Petitioner National Resources Defense Counsel argues that the Administrator has abdicated responsibility for regulation of photochemical oxidants other than ozone by relabeling the regulations here at issue. In 1971 when the first air quality standards were promulgated, the title of the regulation was “National primary and secondary ambient air quality standards for photochemical oxi- dants”. 36 Fed. Reg. 8187 (1971). The title was some- what misleading because the 1971 standards applied only to ozone, which was the sole photochemical oxidant meas- ured for compliance. 43 Fed. Reg. 26967 (1978). The new standards challenged in this case expressly apply only to ozone and do not attempt to establish permissible levels for other photochemical oxidants. 43 Fed. Reg. 26985 (1978). l8a Despite NRDC’s characterization of the Administra- tor’s action, it appears that EPA has not abandoned its statutory responsibility to regulate pollutants which “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7408(a) (1) (A) (Supp. III 1979). Rather, the Administrator has chosen to regulate the photochemical oxidant (ozone) that, in his judgment pre- sents a predictable danger. (J.A. Ex. 1 at 1-31) The setting of the ozone standard is not the only action taken by the agency with regard to photochemical oxidants; research concerning the less well known oxidants con- tinues. 44 Fed. Reg. 8204 (1979). The Administrator’s approach to photochemical oxidants is reasonable, given the uncertain information concerning the class as a whole. NRDC also argues that the Administrator failed to es- tablish an adequate margin of safety in the primary standard. As required by the statute, the Administrator promulgated air quality standards that are calculated to “protect individuals who are particularly sensitive to the effects of pollution.” Lead Industries, supra, at 43. In setting margins of safety the Administrator need not regulate only the known dangers to health, but may “err” on the side of overprotection by setting a fully adequate margin of safety. See Environmental Defense Fund v. EPA, 194 U.S. App. D.C. 148, 161-62, 598 F.2d 62, 80-81 (1978). Of course the Administrator’s conclusions must be supported by the record, and he may not engage in sheer guesswork. Where the Administra- tor bases his conclusion as to an adequate margin of safety on a reasoned analysis and evidence of risk, the court will not reverse. NRDC argues that the Adminis- trator erred in setting a primary standard that does not protect sensitive individuals against easily predicted risks. In so arguing NRDC essentially ignores the mixed results of the medical studies evident in the record, choos- ing instead to rely only on the studies that favor its position. The Administrator, however, was required to 19a take into account all the relevant studies revealed in the record. Because he did so in a rational manner we will not overrule his judgment as to the margin of safety. The Administrator concluded that the medical evidence “suggest(ed) the real possibility of significant human ad- verse health effects below 0.15 ppm. Consequently... [he] determined that a standard of 0.12 ppm is necessary and is sufficiently prudent unless and until further studies demonstrate reason to doubt that it adequately protect public health”. 44 Fed. Reg. 8217 (1979). Having de- termined that the “probable level for adverse effects in sensitive persons is in the range of 0.15-0.25 ppm”, 44 Fed. Reg. 8216 (1979), the Administrator considered the evidence in the record that related to less predictable risks of ozone exposure, a relevant consideration in set- ting margins of safety. The Administrator considered the lack of medical evidence concerning especially sensi- tive persons, the possibility that ozone and other pollu- tants might combine to create cumulative effects, the significance of long-term exposure to otherwise safe ozone levels, inconclusive studies indicating very low ozone damage thresholds, and uncertainties arising from meterological and calibration errors in measurements. /d. The Administrator also indicated that the results of the risk assessment study, described at page 4, supra, did not support any safety margin above 0.12 ppm. 44 Fed. Reg. 8217 (1979). Given the nature of the task assigned to the Administrator, which is to make an informed judgment based on available evidence, we find that the Administrator’s selection of a margin of safety is ra- tional. See Lead Industries, supra at 62. Vv. PROCEDURAL CHALLENGES Petitioners allege numerous procedural errors: EPA’s relationship with the Science Advisory Board (SAB) and 20a Advisory Panel on Health Effects of Photochemical Oxi- dants (Shy Panel), post-comment period contacts between EPA and the White House, exclusion of documents from the record, and last-minute additions to the record by EPA. Under the procedural provisions of the Clean Air Act, 42 U.S.C. § 7607(d), we may invalidate the ozone stand- ard because of procedural error only if (1) the agency's failure to observe procedural requirements was arbitrary and capricious, (2) an objection was raised during the com- ment period, or, where the grounds for such an objection arose after the comment period and the objection is of “central relevance to the outcome of the rule,” the objec- tion was raised on a petition for reconsideration before the agency, and (3) “the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been sig- nificantly changed if such errors had not been made.” 42 U.S.C. § 7607(d) (7) & (8). As we noted in Sierra Club v, Costle, supra at 183, “(t]he essential message of so rig- orous a standard is that Congress was concerned that EPA’s rulemaking not be casually overturned for procedural rea- sons, and we of course must respect that judgment.” 1. Science Advisory Board (SAB) API and Houston contend that in promulgating the ozone standards EPA violated section 8(e) of ERDDAA, 42 U.S.C. § 4365(e) (Supp. III 1979) by failing to obtain approval of the criteria document from the SAB and to submit the proposed standards to the SAB for review. Sec- tion 8(e) provides, in relevant part, that (e)(1) The Administrator, at the time any pro- posed criteria document, standard, limitation, or reg- ulation under the Clean Air Act .. . is provided to any other Federa] agency for formal review and comment, shall make available to the [Science Ad- 2la visory] Board such proposed criteria document, standard, limitation, or regulation, together with relevant scientific and technical information... . (2) The Board may make available to the Ad- ministrator, within the time specified by the Ad- ministrator, its advice and comments on the ade- quacy of the scientific and technical basis of the pro- posed criteria document, standard, limitation, or regulation, together with any pertinent information in the Board’s possession. (Emphasis supplied) The language of the statute indicates that making a pro- posed criteria document and standard available to the SAB for comment is mandatory but that SAB approval is not required before proceeding to the final stage of rulemaking. This interpretation is supported by the Conference Report underlying this provision of the ERDDAA, which states in pertinent part that The Science Advisory Board is intended to be advisory only. The Administrator will still have the responsibility for making the decisions required of him by law. The reviews and comments of the Board are to be provided to the Administrator for his use... . H.R. Rep. No. 95-722, 95th Cong., Ist Sess. 16 (1977). While “the intent of [the statutory] language is to insure that the Board is able to comment in a well-informed man- ner on any regulation that it so desires”, “it should not be mandatory that they comment on all proposed regulations. ... Id, at 17 and 16. In short, the EPA was required urder ERDDAA to submit the criteria document and standard to the SAB for comment, but it was not obligated to obtain SAB approval of either before promulgation of a fina] standard. The parties do not dispute that EPA submitted two drafts of the criteria document to the SAB and that sub- stantial revisions were requested by the Board. The SAB 22a agreed to cast ballots indicating approval or disapproval of the document based upon a third draft of only the “sum- mary and conclusions” chapter of the document. After submission of the chapter, six of the eleven members of the SAB voted to approve the document subject to (1) stated reservations and (2) the assumption that the revised chap- ter accurately reflected corresponding changes in the entire document. (J.A. at 289-306) Two SAB members found the document unacceptable, and the remaining three said that they were unable to make a judgment at that time. Jd. The petitioners contend that the final criteria document, which was never submitted to the SAB, did not incorporate the changes requested by the Board, while EPA argues that the final criteria document adequately addressed the SAB’s concerns. The EPA action does not constitute a violation of section 8(e) of the ERDDAA. The Act requires only that the EPA submit the criteria document to the Board for advice and comment; it does not require that the Administrator obtain approval of the SAB or incorporate all suggested changes. While it might have been preferable for the EPA to have submitted the final criteria document to the SAB, we note that the SAB itself agreed to the course followed. (J.A. Ex. 2 at 563, 578) Given the extent of SAB comment on the criteria document, we cannot find that the document was not “made available” to the Board within the meaning of Section 8(e). The proposed ozone standard, on the other hand, was never made available to the Board for advice and comment. Section 8(e) makes the submission of any proposed stand- ard to the SAB mandatory. EPA contends that because the standard is based on the criteria document, submission of the standard to the SAB would have been redundant. This argument is unversuasive; the statute explicitly man- dates that standards be submitted to the Board for review. Accordingly, the failure to submit the standards was a vio- 23a lation of procedure required by law. We cannot find, how- ever, that this error was “so serious and related to matters of such central relevance to the rule that there is a sub- stantial likelihood that the rule would have been signif- icantly changed” had the proposed standards been sub- mitted to the SAB. 42 U.S.C. § 7607(d) (8). The final standard of 0.12 ppm represents an allowance for a margin of safety in light of the adverse health effects range stated in the criteria document (0.15-0.25 ppm). Because any SAB review of the standard would have involved review of the criteria document, i.e., the scientific and technical basis for the standard, we cannot hold that the standard would likely have been significantly changed had it been submitted to the Board. The Administrator’s fina] stand- ard, as noted supra at 8, is rational and supported by the record. Although the failure to submit the proposed stand- ards to the SAB was a violation of section 8(e) of the ERDDAA, the circumstances indicate that the error was not so central as to constitute grounds for invalidating the final standards. 2. Shy Health Effects Panel and Risk Assessment Study API and Houston also argue that the EPA Advisory Panel on Health Effects of Photochemical Oxidants (Shy Panel) was an advisory committee within the meaning of the Federal Advisory Committee Act (FACA). 5 U.S.C. app. I, § 1 et seg. (Supp. I 1977). Petitioners assert that because EPA failed to observe several requirements of FACA, the actions of the Shy Panel and the EPA reliance on the panel’s risk assessment study require invalidation of the standard. In early 1977 EPA officials responsible for developing the ozone standard asked Dr. Car! Shy of the Institute for Environmental Studies, University of North Carolina at Chapel Hill, to head a panel of paid environmental experts which would prepare “a detailed report on the translation 24a of health data into an ambient air quality standard for photochemical oxidants.” (Br. of API at 20) Dr. Shy was a leading advocate of the existing 0.08 ppm ozone standard. Id. The panel met privately on June 7 and 8, 1977. A first draft of the panel report, co-authored by Shy and an EPA official, strongly endorsed the existing 0.08 standard. Fol- lowing some minor revisions, the final draft of the Shy Panel report was submitted to the EPA in late 1977, made available for public comment in December 1977, and placed in the rulemaking docket on March 22, 1978. (Br. of EPA at 126) The report, which used a “risk assessment” tech- nique to conclude that 0.08 ppm was the proper ozone stand- ard, was made part of the criteria document and cited as one of the bases for the fina] 0.12 ppm standard. (Br. of API at 29) The FACA defines an advisory committee, in relevant part, as “any ... panel... which is. . . established or utilized by one or more agencies, in the interest of ob- taining advice or recommendations for . . . one or more agencies... .” 5 U.S.C. app. § 3(2) (C). Petitioners con- tend that because the Shy Panel clearly is an advisory committee within the meaning of this provision, the con- duct of the panel violates several provisions of FACA and that EPA reliance on the panel’s study as a basis for the final rule requires invalidation of the standard. For example, it is argued that the choice of a known partisan to chair the panel violates the FACA require ments that the committee be “fairly balanced” and that it not be “inappropriately influenced” by any “special interest.” 5 U.S.C. app. § 5(b)(2)-(3). It is also as- serted that the private meetings of the panel violate the FACA requirement that public notice and opportunity for public participation be given. 5 U.S.C. app. §§ 10(a) (2) and (d)(3). EPA asserts, on the other hand, that the Shy Panel is not subject to FACA because the group con- sisted of paid consultants and the legislative history of 25a FACA indicates that the Act was not intended to apply to persons having contractual relationships with the gov- ernment. CONF. REP. No. 92-1403, 92d CoNG., 2d SEss. (1972). See Lombardo v. Handler, 397 F. Supp. 792 (D.D.C. 1975), aff'd mem., 178 U.S. App. D.C. 277, 546 F.2d 1043 (1976), cert. denied, 431 U.S. 932 (1977). In any event, argues EPA, none of the Shy Panel actions violated FACA. We need not reach the questions whether the Shy Panel was an advisory committee within the meaning of FACA and whether violations of FACA occurred. Even were we to find that the panel was subject to FACA, that viola- tions of the Act occurred, and that reliance on the risk assessment study was therefore illegal, we would not be able to say that there is a substantial likelihood that the 0.12 ppm standard would have been significantly different if such errors had not been made. The ultimate adoption of a 0.12 ppm standard constitutes a rejection of the Shy Panel’s conclusion that the ozone standard should not be relaxed. Moreover, even though the Shy Report was cited as one of the bases for the final standards, the criteria document otherwise fully supports the 0.12 ppm standard as a figure representing a margin of safety below the 0.15-0.25 ppm danger zone. In short, absent the Shy Panel report, there is a substantial] likelihood that the standard would have been the same. We therefore cannot invalidate the standard based on the alleged procedural irregularities. 3. EPA Exclusion of API Submission Regarding Natural Hydrocarbons API asserts that the EPA erred i failing to consider and by excluding from the docket and record an API post- comment period submission concerning natural organic emissions from vegetation. 26a Section 307(d) (4) (B) of the Clean Air Act, 42 U.S.C. $ 7607(d) (4) (B) requires the Administrator to place in the docket all documents, even those not submitted during the comment period, determined to be “centrally relevant” to the rulemaking. API, in submitting the above docu- ments, noted in its request that they related to the issue of whether “attainment of the proposed standards would be precluded in most areas of the nation by natural back- ground levels of ozone resulting in part from natural hydrocarbon emissions.” (J.A. at 1003) EPA refused to docket most of the documents submitted by API on the ground that the question of attainability is not relevant to the setting of ambient air quality standards under the Clean Air Act. As noted, supra at 10, the EPA position that attainability is not central to a rulemaking of this type is correct. Accordingly, EPA’s decision to exclude the API submission was proper. 4. EPA’s Last-Minute Addition to the Record Finally, NRDC contends that EPA violated the admin- istrative procedure requirements of the Clean Air Act by placing in the record, after the close of the comment period and one day before promulgation of the final rule, an EPA staff paper entitled “Evaluation of Alternative Secondary Ozone Air Quality Standards”. The statement accompanying the final rule indicated that this study was the primary basis for the change from an 0.08 ppm to 0.12 ppm secondary standard. 44 Fed. Reg. 8217 (1979). NRDC argues that the failure to give notice or oppor- tunity to comment on any analysis so central to the final decision warrants invalidation of the secondary standard. The last-minute addition to the record of a study which constituted the basis for the final secondary standard is disturbing. The study was never exposed to public scru- tiny or comment. However, the procedural requirements of the Clean Air Act do not permit NRDC to raise this 27a objection for the first time on appeal. See Oljato Chapter of the Navajo Tribe v. Train, 169 U.S. App. D.C. 195, 207-08, 515 F.2d 654, 666-67 (D.C. Cir. 1975). Section 307(d) (7) (B) of the Act, 42 U.S.C. § 7607(d) (7) (B) provides that: (B) Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any pub- lic hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the ground for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Adminis- trator shall convene a proceeding for reconsidera- tion of the rule and provide the same procedural rights as would have been afforded had the informa- tion been available at the time the rule was proposed. If the Administrator refuses to convene such a pro- ceeding, such person may seek review of such re- fusal in the United States court of appeals for the appropriate circuit (as provided in subsection (b) of this section). Such reconsideration shall not post- pone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsidera- tion, however, by the Administrator or the court for a period not to exceed three months. The statute states that before this court may review a procedural objection the parties must raise the objection on petition for reconsideration before the EPA when the grounds for such objection “arose after the period for public comment (but within the time specified for judicial review”. This reading is confirmed by the legislative history of this provision, which states in pertinent part: Section 307(d)(7)(B) would specify the circum- stances in which a reviewing court may consider 28a data and arguments that were not presented to the agency during the rulemaking. Even in such cases, however, the Agency must first be given an opportun- ity to pass on the significance of the materials and determine whether supplementary proceeding [sic} are called for or not. Thus, the committee bill confirms the court’s decision in Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975). H.R. Rep. 95-294, 95th ConG., Ist Sess. 323 (1977). See generally, Sierra Club v. Costle, supra at 193-94. The record before us does not suggest that any party, including NRDC, filed petitions for reconsideration with the EPA. The grounds for NRDC’s objection were clear as of the date of promulgation of the final rule. Had NRDC complied with the sta\utory requirement of filing a petition for reconsideration, it could have commented on the staff study and the EPA could have responded during the period when the petition was pending. Be- cause the required petition for reconsideration was never filed, we cannot reach the merits of the NRDC objection. See generally, Sierra Club v. Costle, supra at 200-201 & n.497. Although we refer to a “petition for reconsideration” in this opinion, it should be noted that any formal com- munication to the Administrator that specifically states an objection, requests reconsideration of Agency action because of the objection, and provides notice to interested parties, would satisfy the statutory requirement for an “objection . . . raised with reasonable specificity.” 42 U.S.C. § 7607(d)(7)(B). The record reflects no such formal communication from NRDC. NRDC contends that a series of post-comment period oral contacts between officials of the EPA and the White House and its agencies were not documented in the docket 29a or the record. NRDC argues that this constitutes a viola- tion of Clean Air Act Section 307(d) (4) (B) (ii), 42 U.S.C. § 7607 (d) (4) (B) (ii) (1976), which provides that: (ii) The drafts of proposed rules submitted by the Administrator to the Office of Management and Budget for any interagency review process prior to proposal of any such rule, all documents accompany- ing such drafts, and all written comments thereon by other agencies and all written responses to such written comments by the Administrator shall be placed in the docket no later than the date of pro- posal of the rule. The drafts of the final rule sub- mitted for such review process prior to promulgation and all such written comments thereon, all docu- ments accompanying such drafts, and written re- sponses thereto shall be placed in the docket no later than the date of promulgation. As we have said, a petitioner must raise a procedural objection with the EPA if this court is to consider the objection. 42 U.S.C. § 7607(d) (7) (B). This rule applies even when the grounds for the objection first became known to the petitioner after the comment period ended, but before the period for petitioning for review expired. This is evident from the statute: “. . . if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same pro- cedural rights as would have been afforded had the infor- mation been available at the time the rule was proposed.” 42 U.S.C. § 7607(d) (7) (B). According to NRDC, it was alerted to the White House contacts as early as February 26 and 27, 1979, when hearings on executive branch review of environmental regulations were held by the Senate Subcommittee on Environmental Pollution. (NRDC Br. at 19, n.46, 28, 30a n.53) The Subcommittee examined the role of White House economic advisers. The fina] regulations were pub- lished in the Federal Register on February 8, 1979. 44 Fed. Reg. 8202. Thereafter NRDC had sixty days to file its petition for review. 42 U.S.C. § 7607(b) (1). In that period NRDC could have petitioned the EPA for recon- sideration based on its objection to the White House con- tacts. Because NRDC failed to exhaust the administra- tive remedy specifically required by the Act we may not and do not consider this objection to the Administrator’s action. 42 U.S.C. § 7607(d)(7)(B); § 7607(d) (9) (D) (ii). VI. CONCLUSION In summary, we hold that the primary and secondary standards for ozone emission are supported by a rational basis in the record. Although the EPA procedures were not a model of regulatory action, we hold that none of the alleged procedural errors warrants invalidation of the final standards. Affirmed. 3la WALD, Circuit Judge, dissenting in part: I concur in all respects with Judge Robb’s majority opinion, save one: I am troubled by the manner in which the court refuses to decide the ex parte issue for failure to raise it properly under section 307. The majority opinion disposes of NRDC’s challenge concerning post-comment period White House contacts by holding that NRDC failed to raise this objection before EPA in a timely manner, and is therefore precluded from doing so here under 42 U.S.C. § 7607(d) (9) (D); § 7607 (d) (7) (B). EPA itself, however, nowhere claims such a bar to deciding this issue on the merits, and I find the present record inconclusive on whether this issue was appropriately brought to EPA’s attention. I would therefore have posed a single interrogatory to the parties to ascertain whether a timely objection by NRDC was in fact made on this issue so as to bring it within the scope of our review under this statute. As the majority recognizes, the relevant section, 42 U.S.C. § 7607(d) (7) (B), requires only an “objection [of central relevance] . . . raised with reasonable specificity” to require the Administrator to convene a proceeding for reconsideration. While we may be confident here that any formal peti- tions for reconsideration would appear in the record, we cannot be as sure about the presence of other, less formal objections to the rulemaking. The latter would not neces- sarily appear in the record on appeal, because the record for judicial review as defined in section 307(d) (7) (A) does not include all post-promulgation objections. It is also possible that an objection made to the alleged ex parte contacts even before promulgation might not have been placed in the record as being “centrally relevant.” Without more reliable knowledge that no reasonably specific, timely objection was made by NRDC regarding 32a post-comment period communications, I would not find the issue barred in this court without some statement by the parties addressing this point. My suspicion that an appropriate objection may in fact have been made is fueled by (1) Environmental Defense Fund testimony in the February, 1979 hearings before the Senate Subcom- mittee on Environmental Pollution,' that it had written Administrator Costle two weeks before about White House-EPA ex parte contacts; and (2) EPA’s own fail- ure to object to NRDC’s claims on the ground that the claims were not properly raised before the agency. EPA, in fact, defends exclusively on the merits, asserting that the post-comment period White House communications were proper and duly recorded. See Brief for Respond- ent EPA at 101-10. In short, I do not think it reasonable to assume, on the record before us and in the absence of any such assertion by EPA, that no timely objection was made on the ex parte issue. I would instead have resolved this factual ambiguity in the record before deciding whether to pass on the merits of the ex parte issue. ' See Executive Branch Review of Environmental Regula- tions: Hearings Before the Subcomm. on Environmental Pollution of the Senate Comm. on Environment and Public Works, 96th Cong., Ist Sess. 57 (Feb. 26, 1979) (testimony of Robert Rauch, Staff Attorney, Envt’'l Def. Fund). * 33a APPENDIX B United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 79-1104 AMERICAN PETROLEUM INSTITUTE, PETITIONER * v. DouGLas M. CosTLE, ADMINISTRATOR, AND ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS * AMERICAN PETROLEUM INSTITUTE and 15 of its member companies CHEMICAL MANUFACTURERS ASSOCIATION THE ST. Louis REGIONAL COMMERCE & GROWTH ASSOCIATION NATIONAL RESOURCES DEFENSE COUNCIL, et al. THE STATE OF OKLAHOMA E.I. Du Pont De Nemours & Co. INTERVENORS * Consolidated with the following cases (identified by this Circuit’s case number and petitioner), in all of which the Environmental Protection Agency is the respondent: No. 79-1201, E. I. Du Pont De Nemours and Company; No. 79- 1222, American Petroleum Institute, et al.; No. 79-1290, Chemical Manufacturers Association; No. 79-1335, The Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time. 34a On Petitioners’ Motion to Correct the Record Filed November 6, 1979 Edward W. Warren, Robert F. Van Voorheer, John S. Hahn, Robert R. Bonzcek, Bernard J. Reilly, Carl B. Everett, John H. Pickering, Andrew T. A. Macdonald and David R. Johnson were on the motion to correct the record, for petitioners American Petroleum Institute, et al. in Nos. 79-1104, 79-1201, 79-1222, 79-1290, 79-1359 and 79-1370 and intervenors in Nos. 79-1335, 79-1356 and 79-1362. Patrick J. Cafferty, Attorney, Department of Justice, was on the opposition to motion to correct the record, for respondent, Environmental Protection Agency. Richard E. Ayres, Peter J. Herzberg and David D. Doniger were on the opposition to motion to correct the record, for intervenor National Resources Defense Coun- cil, et al. in No. 79-1104 and petitioner in Nos. 79-1335 and 79-1362. Also Joseph J. Brecher and Peter J. Herzberg entered appearances, for petitioner Sierra Club in No. 79-1356. Also Frederick S. Fisher, James E. Ryan, Jr. and Roger L. Chaffe entered appearances for petitioner Com- monwealth of Virginia, et al. in No. 79-1365. Natural Resources Defense Council, Inc., et al.; No. 79-1356, Sierra Club; No. 79-1359, Chemical Manufacturers Associa- tion, et al.; No. 79-1362, The Connecticut Lung Association, Inc.; No. 79-1365, Commonwealth of Virginia, ex rel., The State Air Pollution Control Board; No. 79-1367, City of Houston, Texas; No. 79-1370, American Petroleum Institute, et al. 35a Also Daniel Joseph and Courtenay Ellis entered ap- pearances, for petitioner City of Houston, Texas, in No. 79-1367. Also Jeffrey O. Cerar, Attorney, Environmental Pro- tection Agency, entered an appearance for respondents. Also Christopher S. Bond and Charles A. Blackmar entered appearances for intervenor The St. Louis Re- gional Commerce, et al. in No. 79-1104. Also Charles S. Rogers, Assistant Attorney General for the State of Oklahoma entered an appearance for inter- venor, State of Oklahoma ex rel George Nigh, etc. in No. 79-1104. Before: MCGOWAN,* LEVENTHAL and WALD, Circuit Judges. Opinion per curiam. Per curiam: This motion to correct the record is part of an action challenging the primary and secondary na- tional ambient air quality standards for ozone, recently promulgated by the Environmental Protection Agency (EPA) and published at 44 Fep. Rec. 8202, February 8, 1979. The standards are challenged by a group of in- dustry petitioners, who contend that the standards are unrealistically strict, and by a group of environmentalist and health petitioners,? who contend that they are not strict enough. This opinion concerns one of several mo- * Circuit Judge McGowan did not participate in this decision. 1 The industry petitioners are American Petroleum Insti- tute and its member companies, Manufacturing Chemists Association and its member companies, and E. I. duPont de Nemours & Co. ?The environmentalist petitioners are the National Re- sources Defense Council, Sierra Club, Ame [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0690%3A0. Public record. Not legal advice.