Opposition Brief — American Iron & Steel Institute v. United States Environmental Protection Agency

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In the Supreme Court of the W

OcTOBER TERM, 1990

AMERICAN IRON AND STEEL INSTITUTE, PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

JOHN G. ROBERTS, JR.

Acting Solicitor General

RICHARD B. STEWART

Assistant Attorney General

DANIEL S. GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

E. DONALD ELLIOTT

Assistant Administrator and General Counsel

ALAN W. ECKERT

Associate General Counsel

MICHAEL S. WINER

Assistant General Counsel

GERALD K. GLEASON

Attorney

Environmental Protection Agency

Washington, D.C. 20460

QUESTION PRESENTED

Whether the Environmental Protection Agency

permissibly revised the primary national ambient air

quality standards for particulate matter, pursuant to

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

(I)

TABLE OF CONTENTS

Page

I IU ocesieinccesansnessscnaresencnenenetctunatorenninamimessanbenessioniens 1

aii sce slaclcnhlsincelaiasisleoliieninaieasiiivashlbatenrianioauntaivnieeiichdns 2

a eesttnirnnirennecieennbtinnaninieeanaeniinenneiainhnen 2

BI ciieieiawinsncxsnesinnenecenesnnieneccnanonsaadennnstneenanestennehitienennetes 8

TIT aoa th ichindianicnnnegdebteiecnipeasiabiliaiicanadinnidbesdianiatiie 11

TABLE OF AUTHORITIES

Cases:

American Petroleum Inst. v. Costle, 665 F.2d 1176

(D.C. Cir. 1981), cert. denied, 455 U.S. 1034

I chs dallcchosus th ghee hicaschnsesnh die dtendhascemesasihadibiidesaliniSicen 9

Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837

RI RS ER eS SS ee 2

General Motors Corp. v. United States, 110 8.Ct.

AAT ALENT EE Ss ENCANA 2

Lead Indus. Ass’n V. EPA, 647 F.2d 1180 (D.C.

Cir.), cert. denied, 449 U.S. 1042 (1980) -........... 8,9

Natural Resources Defense Council, Inc. v. EPA,

824 F.2d 1146 (D.C. Cir. 1987) —................... 6, 7, 8, 9, 10

Train Vv. NRDC, Inc., 421 U.S. 60 (1975) --.............. 2

Statutes :

Clean Air Act, 42 U.S.C. 7401 et seq. -.........--.--2...-.... 2

§ 108 (a), 42 U.S.C. 7408 (a) -........ ~dnieehaitanietaibamae 2,3

IEE RUMI: WHI Dicceeen ccknnensccwsensnesccescesnes 4, 6, 7, 9, 10

§ 109 (a) (1), 42 U.S.C. 7409 (a) (1) -............... 3

S$ 100(b), 48 U.S.C. 7400 (B) -.............................. 2,3

§ 109 (b) (1), 42 U.S.C. 7409 (b) (1) S

5 160¢G), Ge Ue, Feee te) .«.............................. 4

§ 109(d) (1), 42 U.S.C. 7409 (d) (1) -.............. 3, 4

§ 110(a) (1), 42 U.S.C. 7410 (a) (1) —........... 3

§ 110(a) (2), 42 U.S.C. 7410 (a) (2) -............... 3

OR , ccnnseomaned 6, 7, 9, 10

§ 307 (b) (1), 42 U.S.C. 7607 (b) (1) ~~... 6, 9

Clean Air Amendments of 1970, Pub. L. No. 91-

8 __RERRES rE I 2

IV

Statutes—Continued: Page

Clean Air Act Amendments of 1977, Pub. L. No.

a i rates ceils 2

Clean Air Act Amendments of 1990, Pub. L. 101-

a 8

Miscellaneous:

36 Fed. Reg. (1971) :

NER cc ene 3, 10

ET ae 3

43 Fed. Reg. (1978) :

inca nostic csisindanhadintsiannanilicesaiaalitl 10

EE ane oe oc ONC SN ce 10

EE Oe ee es om 10

44 Fed. Reg. (1979) :

on inlbenicnhidetnssdicteaiibenladien 10

a eetean inline ehsenipeiiadibinied 10

EE aR ee ES ae 4

49 Fed. Reg. (1984) :

TNR: AN sare 4

aaa enicsins sikbensalinaneediaiaimiieiain 3

al Re a 4

Gea eS RET RT I Ai: SI 4

I si cnainanss bse bnetaasdliliihe 5

50 Fed. Reg. (1985) :

ATES SI a ne aCe re 10

ER A eee ee 10

52 Fed. Reg. (1987) :

ERE cee I ec 5

ENG ES eS Me ae a 5

53 Fed. Reg. (1988) :

NS TET OO ean eC 6

pp. 52,700-52,701 ............ BERIT RA RS NEN A a 8

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-559

AMERICAN IRON AND STEEL INSTITUTE, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (90-257 Pet.

App. la-75a)' is reported at 902 F.2d 962. The or-

der of the court of appeals vacating Part IV and the

separate opinions concerning Part IV (App., infra,

la) is not yet reported.

1 Petitioner cites the court of appeals’ opinion as reprinted

in the petition appendix of National Coal Ass’n vy. National

Resources Defense Council, Inc., No. 90-257. See Pet. 1 n.1.

For clarity, we will cite the National Coal Ass’n petition

appendix as “90-257 Pet. App.,” and poutoner s own appen-

dix as “90-559 Pet. App.”

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on April 27, 1990. 90-257 Pet. App. la. On July 3,

1990, the court of appeals denied a petition for re-

hearing. Jd. at 93a. The petition for a writ of cer-

tiorari was filed on October 1, 1990. On January 2,

1991, the court of appeals vacated Part IV and the

separate opinions concerning Part IV. App., infra,

la. Petitioner invokes this Court’s jurisdiction under

28 U.S.C. 1254(1).

STATEMENT

1. The Clean Air Act, 42 U.S.C. 7401 et seq., pro-

vides a comprehensive program for controlling air

pollution, using both federal and state regulation.

The structure of the Clean Air Act (CAA or the Act),

as in effect at the time of these proceedings, dates

from 1970 amendments to the previous statute, sup-

plemented by further important amendments in 1977.

Clean Air Amendments of 1970, Pub. L. No. 91-604,

84 Stat. 1676; Clean Air Act Amendments of 1977,

Pub. L. No. 95-95, 91 Stat. 685. See generally Gen-

eral Motors Corp. v. United States, 110 S. Ct. 2528,

2530 (1990); Chevron U.S.A. Inc. v. NRDC, Inc.,

467 U.S. 837, 845-849 (1984); Train v. NRDC, Inc.,

421 U.S. 60, 63-67 (1975).*

Under Section 108(a) of the Act, EPA issues air

quality criteria documents reviewing scientific evi-

dence about the possible effects of certain listed air

pollutants that endanger the public health or wel-

2 The Clean Air Act was substantially revised by additional

amendments in 1990. Clean Air Act Amendments of 1990,

Pub. l.. No. 101-549, 104 Stat. 2899. The amendments do not

directly affect the issue presented in this case. All citations

are to the pre-1990 version of the Act.

3

fare. 42 U.S.C. 7408(a). Pursuant to Section 109(b)

of the Act, EPA must, for each such pollutant,

promulgate “primary” national ambient air quality

standards (NAAQS) “to protect the public health”

and “secondary” NAAQS “to protect the public wel-

fare from any known or anticipated adverse effects

associated with the presence of such air pollutant in

the ambient air.” 42 U.S.C. 7409(b).

The Administrator of EPA is directed to review

the Agency’s air quality criteria and NAAQS by

December 31, 1980, and at least every five years

thereafter, and to “make such revisions in such cri-

teria and standards and promulgate such new stand-

ards as may be appropriate.” 42 U.S.C. 7409(d) (1).

Within nine months after the promulgation of a

NAAQS or any “revision thereof,” the States must

draft or revise state implementation plans (SIPs) to

achieve and maintain compliance with the NAAQS.

42 U.S.C. 7410(a)(1). States must submit their

SIPs to EPA for approval or disapproval under the

criteria set forth in Section 110(a)(2) of the CAA,

42 U.S.C. 7410(a) (2).

2. “Particulate matter” is the generic term for a

broad class of chemically and physically diverse parti-

cles that exist in the air as discrete liquid droplets or

as solids. For regulatory purposes, the term includes

all of the particles captured and filtered by an air-

sampling device meeting certain specifications. 90-

257 Pet. App. 5a; 49 Fed. Reg. 10,410 (1984).

a. On April 28, 1971, EPA promulgated primary

and secondary NAAQS for particulate matter under

Section 109 of the CAA, 42 U.S.C. 7409. 36 Fed.

Reg. 8186 (1971). These standards were set in terms

of “total suspended particulate” (TSP) as measured

by a specified sampling device. See id. at 8191-8193;

90-257 Pet. App. 6a.

4

b. In October 1979, pursuant to Section 109(d)

of the CAA, EPA announced that it would reexamine

the scientific evidence concerning health and welfare

effects associated with particulate matter and review

the existing air quality standards for possible revi-

sions. 44 Fed. Reg. 56,730. In 1982, EPA published

a Revised Criteria Document for particulate matter.

An accompanying Staff Paper recommended replac-

ing the TSP measurement of particulate matter with

a measurement focused on particles with an aerody-

namic diameter of 10 microns or less (known as

PM10). 90-257 Pet. App. 5a, 10a.

ec. In March 1984, EPA formally proposed revi-

sions to the particulate matter standards. 49 Fed.

Reg. 10,408. EPA noted that a TSP indicator, in

contrast to a PM10 indicator, “directs control ef-

forts toward larger particles that * * * are of less

concern to health than smaller particles.” Jd. at

10,412. EPA thus proposed to replace its primary

standards for particulate matter based upon TSP

with primary standards based upon PM10. [bid.

EPA also discussed the possible PM10 levels for

the primary NAAQS. The Agency explained that

there would be two standards—a 24-hour standard

and an annual standard. For the 24-hour standard,

it proposed selecting a level from a range of 150 to

250 micrograms per cubic meter (#g/m3), and, for

the annual standard, it proposed a range of between

50 and 65 »g/m3. The Agency also explained that,

in light of “the precautionary nature” of Section 109,

the Administrator was likely to select a standard

frem the “lower portion” of each range. 49 Fed.

Reg. 10,415-10,417 (1984).*

8 For the secondary particulate matter standards, EPA pro-

posed retaining TSP as the indicator, but also asked for pub-

5

d. On July 1, 1987, EPA published a final rule re-

vising the particulate matter NAAQS. 52 Fed. Reg.

24,634; 90-257 Pet. App. 76a. As proposed, EPA re-

placed TSP with PM10 as the new indicator for the

primary standards. 90-257 Pet. App. 76a. Based on

its evaluation of the relevant health studies, EPA

selected a 24-hour PM10 standard of 150 »g/m3, and

an annual PM10 standard of 50 xg/m3. Jbid.; 90-

559 Pet. App. 2la-36a.‘ The Agency concluded that

a 24-hour PM10 standard greater than 150 xg/m3

would “present an unacceptable risk of premature

mortality” and allow the possibility of significant

lung function changes. 90-559 Pet. App. 3la. EPA

similarly relied upon the available “long-term quan-

titative studies” and “qualitative data from a num-

ber of epidemiological, animal and ambient particle

composition studies” to arrive at an annual PM10

standard of 50 »g/m3. Jd. at 34a-35a.°

lic comment on the alternative of establishing secondary

standards equivalent to the primary standards in all respects.

49 Fed. Reg. 10,418-10,419 (1984).

*In 1986, on the basis of additional studies, EPA’s staff

had revised its own recommendations for 24-hour PM10

standards and for annual PM10 standards. 90-257 Pet. App.

10a-1la.

5 A table in the preamble to the final PM10 standards (re-

printed at 90-559 Pet. App. 24a) contained several printing

errors, which were the subject of published corrections two

weeks later. See 52 Fed. Reg. 26,401 (1987). Additionally,

rather than adopting its proposed secondary TSP standards,

EPA promulgated secondary 24-hour and annual PM10 siand-

ards identical in all respects to the primary standards. 90-257

Pet. App. 77a. This decision was based in part upon public

comments pointing out the limitations of TSP as an indicator,

as well as upon a lack of “convincing scientific support for

maintaining TSP as an indicator for the secondary stand-

ards.” Id. at 79a.

6

3. Petitioner and several other parties filed timely

petitions for review of various aspects of the July 1,

1987 regulations. See 42 U.S.C. 7607(b)(1).° For

its part, petitioner challenged the primary NAAQS

for particulate matter. As the court of appeals

pointed out, petitioner did not challenge the use of a

PM10 measurement; nor did it contest EPA’s reten-

tion of both a short term (twenty-four hour) and

long term (annual) standard for particulate matter.

90-257 Pet. App. lla. Rather, petitioner’s challenge

was to the numerical levels in the NAAQS. Peti-

tioner challenged these levels in two principal re-

spects. First, petitioner argued that the selection of

the particular numerical levels was arbitrary and

capricious. Second, petitioner contended that EPA’s

procedure for setting primary air quality standards

under Section 109 of the CAA was inconsistent with

the court of appeals’ decision in Natural Resources

Defense Council, Inc. v. EPA, 824 F.2d 1146 (D.C.

Cir. 1987) (Vinyl Chloride), which concerned EPA’s

national emission standards for hazardous air pollu-

tants under Section 112 of the CAA (42 U.S.C.

7412).”

The court of appeals unanimously rejected both of

these arguments. With respect to the 24-hour pri-

mary standard, the court concluded that, “[i]n set-

ting a standard under § 109, the Administrator must

6 Petitioner also filed a petition for reconsideration with

EPA, which the Agency denied. 53 Fed. Reg. 52,698 (1988).

7 Petitioner also claimed that EPA had improperly failed

to consider possible health effects from unemployment and to

give States appropriate up-to-date information about PM10

control techniques. The court of appeals rejected the first

argument (90-257 Pet. App. 21a) and held that petitioner

did not have standing to raise the second (id. at 25a-28a).

Petitioner does not pursue either claim in this Court.

7

take into account all the relevant studies revealed in

the record and make an informed judgment based on

available evidence. * * * The record shows that the

Administrator did so.” 90-257 Pet. App. 17a (in-

ternal quotation marks omitted). Similarly, with re-

spect to the annual primary standard, the court of

appeals concluded that “[t]he record is replete with

support for the final standard.” Jd. at 18a. On both

points, the court of appeals discussed in detail the

applicable studies and other factual evidence that

supported the primary standards chosen by EPA.

Id. at 13a-21a.

Petitioner’s argument concerning the Vinyl Chlor-

ide decision also failed to persuade the court of ap-

peals. 90-257 Pet. App. 21la-23a. The court con-

trasted Section 112 of the CAA, under which EPA

“may consider cost and technological feasibility in

selecting levels for hazardous pollutant standards,”

with Section 109, under which EPA “may not con-

sider cost and technological feasibility.” 90-257 Pet.

App. 22a. Because of this distinction, the court of

appeals concluded that “[t]he two-step methodologi-

cal requirement endorsed by Vinyl Chloride’ for

emissions standards under Section 112 “is inapposite

to actions under § 109.” [bid.*

SIn the court of appeals, certain other parties (Natural

Resources Defense Council, et al. (NRDC)) also raised an

objection to EPA’s treatment of an issue in the secondary

standards for particulate matter (the welfare effects of visi-

bility impairment and acid deposition). See 90-257 Pet. App.

35a-75a. The court of appeals concluded, per curiam, that

EPA had engaged in final action on acid deposition but not

visibility impairment and remanded to EPA for a statement

of reasons concerning acid deposition. Jd. at 35a-36a. The

judges were split on that issue, however: Judge Silberman

would have found no final agency action on either issue (id.

at 69a-75a), Judge Edwards would have found final agency

8

ARGUMENT

Petitioner renews its contention that, as in Vinyl

Chloride, the Administrator must determine a single

level that is “safe” before determining the permis-

sible “margin of safety.” Pet. 13-14, 15-16. Peti-

tioner’s suggestion is erroneous, and its claim does

not warrant review.

Section 109(b) (1) explicitly directs the Adminis-

trator to formulate a NAAQS that, in his judgment,

reflects “an adequate margin of safety * * * requi-

site to protect the public health.” 42 U.S.C. 7409

(b) (1). As the Administrator noted in denying pe-

titioner’s petition for reconsideration, the court of

appeals had already held that EPA need not adopt a

two-step process for setting NAAQS under Section

109 and that the choice of approach in determining

the margin of safety “is a policy choice of the type

that Congress specifically left to the Administrator’s

judgment.” 53 Fed. Reg. 52,700-52,701 (1988);

Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1161-1162

(D.C. Cir.), cert. denied, 449 U.S. 1042 (1980).

Three separate panels of the court of appeals have

now upheld—without a single dissent—EPA’s pro-

action on both issues (id. at 56a-68a), and Chief Judge Wald

concluded that only the acid deposition action was final (id.

at 37a-55a). The petitions in National Coal Ass’n v. NRDC,

No. 90-257 and Alabama Power Co. v. NRDC, No. 90-558

challenged the court of appeals’ remand on the acid deposi-

tion issue. In November 1990, in light of the Clean Air Act

Amendments of 1990, NRDC moved in the court of appeals

to dismiss its initial petition for review; on January 2, 1991,

the court of appeals granted the motion and vacated Part IV

of its opinion and the separate opinions. App., infra, la.

National Coal Association and Alabama Power Company then

moved to dismiss their petitions in this Court, and the Clerk

of this Court granted the motion on January 24, 1991.

9

cedure for establishing NAAQS under Section 109,

in which the Administrator has determined the ap-

propriate “margin of safety” without petitioner’s two-

step procedure. 90-257 Pet. App. 2la-23a; American

Petroleum Inst. v. Costle, 665 F.2d 1176, 1184-1187

(D.C. Cir. 1981), cert. denied, 455 U.S. 1034 (1982);

Lead Indus. Ass’n v. EPA, 647 F.2d at 1148-1156,

1161-1162. Thus, while petitioner correctly notes that

the Act’s judicial review provisions “eliminate any

possibility of a conflict among the circuits” on this

point (Pet. 10; see 42 U.S.C. 7607(b)(1)), there is

no reason to believe that the petition raises a contro-

versial or unsettled issue of federal law.°

Petitioner’s reliance on Vinyl Chloride and its ex-

plication of the requirements for Section 112 is en-

tirely misplaced. In that unanimous en bane decision,

the court explained that a two-step methodology (in

which EPA must determine a “safe” level and then

the appropriate “margin of safety”) was necessary

because Section 112 requires the consideration of eco-

nomic and technological factors. Indeed, the court

specifically explained that differences between Section

109 and Section 112 permit EPA to consider economic

and technological feasibility in setting standards un-

® Petitioner’s suggestion (Pet. 10-11, 15) that the Admin-

istrator did not determine the PM10 level “ ‘requisite to pro-

tect the public health’ ” and to provide an “ ‘adequate margin

of safety’ ” is incorrect. See, ¢.g., 90-559 Pet. App. 52-6a, 35a-

36a. As the court of appeals emphasized, “the Administrator

determined the primary standards for particulate matter

based solely upon the risk to health. Methodologically, that

is all that is required under § 109.” 90-257 Pet. App. 23a.

Petitioner’s disagreement with the method for reaching that

judgment does not justify the erroneous suggestion that no

judgment was reached at all.

10

der the latter Section but not under the former.

Vinyl Chloride, 824 F.2d at 1157-1159. All three

members of the court of appeals panel below partici-

pated in the consideration of the Vinyl Chloride de-

cision, and all three agreed that Vinyl Chloride is in-

apposite to EPA’s setting of Section 109 air quality

standards. 90-257 Pet. App. 22a. The court’s inter-

pretation of Section 109 is consistent with the view

that EPA has repeatedly expressed from the time the

Agency first promulgated ambient air quality stand-

ards in 1971. See, e.g., 50 Fed. Reg. 37,484, 37,499

(1985) (carbon monoxide) ; 44 Fed. Reg. 8202, 8203

(1979) (ozone); 43 Fed. Reg. 46,246, 46,247, 46,256

(1978) (lead); 36 Fed. Reg. 8186 (1971) (original

standards for six pollutants). The court of appeals

correctly determined that the rationale for the two-

step procedure under Section 112 is not applicable to

Section 109.

Petitioner further contends (Pet. 15) that EPA’s

standard setting under Section 109 precludes mean-

ingful judicial review. The court of appeals’ decision

belies this contention, however. As the court of ap-

peals emphasized, EPA fully explained its approach

to setting air quality standards with an adequate

margin of safety (90-559 Pet. App. 21le-23a) and

then set forth in detail how it applied this approach

to both the 24-hour and annual primary standards

for particulate matter. Jd. at 23a-36a. Applying the

appropriate standard of review, the court of appeals

itself examined in detail the record evidence upon

which EPA based its standards. 90-257 Pet. App.

12a-21la. This case thus clearly does not raise a sig-

nificant legal issue regarding the availability of mean-

ingful judicial review.

11

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

JOHN G. ROBERTS, JR.

Acting Solicitor General *

RICHARD B. STEWART

Assistant Attorney General

DANIEL S. GOODMAN

Attorney

E. DONALD ELLIOTT

Assistant Administrator and General Counsel

ALAN W. ECKERT

Associate General Counsel

MICHAEL S. WINER

Assistant General Counsel

GERALD K. GLEASON

Attorney

Environmental Protection Agency

JANUARY 1991

* The Solicitor General is disqualified in this case.

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1990

No. 87-1438

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.,

PETITIONERS

Uv.

ADMINISTRATOR, U. S. ENVIRONMENTAL

PROTECTION AGENCY, ET AL., RESPONDENTS

[Filed Jan. 2, 1991]

and Consolidated Cases 87-1441, 87-1442,

87-1443, 88-1913 and 89-1013

BEFORE: Wald, Chief Judge; Edwards and Sil-

berman, Circuit Judges

ORDER

Upon consideration of the motion of petitioners in

case No. 87-1438 for voluntary dismissal and of the

response thereto it is

ORDERED, by the court, that the motion is granted

and case no. 87-1438 is dismissed. The consolidation

of no. 87-1438 with the remaining cases is vacated.

(la)

2a

It is Further Ordered, by the court, that Part IV

of the court’s opinion of April 27, 1990, and the sep-

arate opinions of Chief Judge Wald and Circuit

Judges Edwards and Silberman which follow Part

IV, be, and the same hereby are, vacated.

The Clerk is directed to transmit a certified copy

of this order to Respondent, in lieu of a partial, for-

mal mandate.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE

Clerk

BY: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

YU. S. GOVERNMENT PRINTING OFFICE; 1991 282061 20345