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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2920%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1082

## Text

Mg

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2920%3A2. Public record. Not legal advice.