Appendix — American Petroleum Institute v. Gorsuch

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1104

AMERICAN PETROLEUM INSTITUTE, PETITIONER

V.

DoucLAS 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

v.

DouGLas M. CosrLE, ADMINISTRATOR, and

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 79-1222

AMERICAN PETROLEUM INSTITUTE, ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, and

DouGLAs M. COsTLE, ADMINISTRATOR

2a

No. 79-1290

CHEMICAL MANUFACTURERS ASSOCIATION, PETITIONER

v.

DOouGLAS M. CosrLE, ADMINISTRATOR, and

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 79-1335

THE NATURAL RESOURCES DEFENSE COUNCIL, INC.,

ET AL., PETITIONERS

V.

DOUGLAS M. COSTLE, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 79-1359

CHEMICAL MANUFACTURERS ASSOCIATION, PETITIONER

v.

DoucLAs M. CosrLE, ADMINISTRATOR, and

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 79-1362

THE CONNECTICUT LUNG ASSOCIATION, INC., PETITIONER

v.

DouGLAS M. COSTLE, ADMINISTRATOR OF THE

U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 79-1356

SIERRA CLUB, PETITIONER

v.

DoudcLASs M. CosrLE, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

3a

No. 79-1365

COMMONWEALTH OF VIRGINIA, ex rel.

THE STATE AIR POLLUTION CONTROL BOARD, PETITIONER

V.

ENVIRONMENTAL PROTECTION AGENCY and

DouGLAsS M. COSTLE, ADMINISTRATOR, RESPONDENT

No. 79-1367

City OF HousTON, TEXAS, PETITIONER

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGECY

and DouGLAs M. COSTLE, ADMINISTRATOR, RESPONDENT

Petitions for Review of Orders of the

Environmental Protection Agency

Argued February 26, 1980

Decided September 3, 1981

Edward W. Warren with whom Robert F. Van Vor-

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, etc., petitioner in No. 79-1365.

Frederick S. Fisher and James E. Ryan, Jr., also en-

tered appearances for Commonwealth of Virginia, ete.,

petitioner in No. 79-1365.

Courtenay Ellis with whom David A. Donohoe was on

the brief, for City of Houston, Texas, petitioner in No.

4a

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.

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.

5a

Robert R. Bonczek, 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: Rogg, WALD and MIvKA, 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 seq. (Supp. III 1979). EPA established both

the primary and secondary standards for ozone at 0.12

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

1 These regulations are codified at 40 C.F.R. § 50.9(a) (1980).

6a

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 vegetation. 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 smog, of which it usually comprises 65-100%. At

certain concentration levels, ozone irritates the respira-

tory system and causes coughing, wheezing, chest tight-

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 te

protect the public health.” 42 U.S.C. § 7409(b) (1).

-

(a

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 second-

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

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 noi 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 te develop a

2 Under 42 U.S.C. § 7501 (a) (2) a state that cannot meet the

NAAQS for ozone by December 31, 1982 despite the implementation

of “all reasonably available measures” may seek approval of a plan

that extends the deadline for compliance to December 31, 1987.

8a

“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

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 Ce gress 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-

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 establisnment 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 0.08 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

10a

Fed. Reg. 26966 (1978). He also relied on medical

opinions and some of the conclusions of the risk assess-

ment study. Id. 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

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

lla

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

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 coniend 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.

ITI.

STANDARD OF REVIEW

Section 307 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 quailty

standard . . . may be filed only in the United

States Court of Appeals for the District of

Columbia.

12a

(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—

(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 svjec-

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

18a

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.” Id. 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 challenged 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.

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. Id. 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-

l4a

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. Id. 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

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

supported 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

15a

(1979), is supported by the studies of De Lucia and

Adams (effects at 0.15 to 0.30 ppm) (J.A. Ex. 1 at 9-18,

Hazucha (effects as 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 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

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 seg.

(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

16a

hydrocarbons in the air. In arguing this point Houston

relies on a study which allegedly establishes that redue-

tion of hydrocarbon levels will not reduce ozone levels.“

The study in question was considered by EPA and re-

jected on several grounds which undercut the reliability

of its conclusions. 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-

Houston also 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 undercut 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

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).

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. 142, 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 conclusions as to an adequate margin of

safety on a reasoned analysis and evidence of risk, the

18a

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

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 led] the real possibility of significant human ad-

verse health effects below 0.15 pp. 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.

19a

V.

PROCEDURAL CHALLENGES

Petitioners allege numerous procedural errors: EPA’s

relationship with the Science Advisory Board (SAB) and

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 Federal agency for formal review and

comment, shall make available to the [Science Ad-

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 1. “nical basis of the pro-

posed criteria document, staudard, 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

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

under ERDDAA to submit the criteria document and

standard to the SAB for comment, but it was not obligated

2la

to obtain SAB approval of either before promulgation of

a final 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

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

documents unacceptable, and the remaining three said that

they were unable to make a judgment at that time. Id.

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

22a

of the standard to the SAB would have been redundant.

This argument is unpersuasive; the statute explicitly man-

dates that standards be submitted to the Board for review.

Accordingly, the failure to submit the standards was a vio-

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 signifi-

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 final 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. Carl 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

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 EF A 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 final 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 ar 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. 8 5 (b) (2)-(3). It is also as-

serted that the private meetings of the panel violate the

FACA requirement that public notice and opporunity for

public participation be given. 5 U.S.C. app. 88 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-

24a

sisted of paid consultants and the legislative history of

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 CoNd., 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 in failing to consider

and by excluding from the docket and record an API post-

comment period submission concerning natural organic

emissions from vegetation.

25a

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

objection for the first time on appeal. See Oljato Chapter

of the Navajo Tribe v. Train, 169 U.S. App. D.C. 195,

26a

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

data and arguments that were not presented to the

27a

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, tne 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 statutory 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.

5. Post-Comment Period White House Contacts

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

28a

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 En-

vironmental Pollution. (NRDC Br. at 19, n.46, 28,

n.53) The Subcommittee examined the role of White

House economic advisers. The final 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-

tracts. 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,

30a

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

post-comment period communications, I would not find the

31a

issue barred in this court without some statement by the

parties addressing this point. My suspicion that an ap-

propriate 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.

1See Executive Branch Review of Environmental Regulations:

Hearings Before the Subcomm. on Environmental Pollution of the

Senate Comm. on Environment and Public Works, 96th Cong., 1st.

Sess. 57 (Feb. 26, 1979) (testimony of Robert Rauch, Staff Attor-

ney, Envt'l Def. Fund).