1. 1 LISTING CRITERIA POLLUTANTS: NRDC v. TRAIN THE STATUTE: § 108 (a)(1) For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant— (A) which in his judgment has an adverse effect on public health or welfare; (B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and (C) for which air quality criteria had not been issued before December 31, 1970, but for which he plans to issue air quality criteria under this section.

2. 2 LISTING CRITERIA POLLUTANTS: NRDC v. TRAIN  STEPS: 1.LIST IF ADVERSE EFFECT AND NUMEROUS/DIVERSE SOURCES 2.WITHIN 12 MONTHS, ISSUE CRITERIA DOC, INFO ON CONTROL TECHNIQUES & COST [§108], AND PROPOSE NAAQS [§109] 3.PROMULGATE FINAL NAAQS WITHIN 6 MONTHS 4.STATES HAVE SET TIME TO SUBMIT SIPS & ATTAIN  INITIAL LIST TO PUBLISHED WITHIN 30 DAYS OF DECEMBER 1970. §108(a)(1)

3. 3 LISTING POLLUTANTS NRDC v. TRAIN EPA POSITION  EPA DECLINES TO LIST LEAD EVEN THOUGH IT MEETS CRITERIA IN SEC. 108 (A) AND (B).  EPA RELIES ON PARAGRAPH (C): “FOR WHICH ADMINISTRATOR PLANS TO ISSUE AIR QUALITY CRITERIA”

4. 4 NRDC v. TRAIN CONSTRUCTING ARGUMENTS  PROVIDE A RATIONALE “The agency regards the listing of lead under section 108(a)(1) and the issuance of ambient air quality standards as one of numerous alternative control strategies for lead available to it.” p. 301.

5. 5 CONSTRUCTING ARGUMENTS, CONT’D  FIND OTHER RELEVANT PROVISIONS SEC. 211. (a) The Administrator may by regulation designate any fuel or fuel additive and, after such date or dates as may be prescribed by him, no manufacturer or processor of any such fuel or additive may sell, offer for sale, or introduce into commerce such fuel or additive unless the Administrator has registered such fuel or additive in accordance with subsection (b) of this section.

6. 6 LISTING POLLUTANTS NRDC v. TRAIN HOLDING  ADMINISTRATOR HAS NO DISCRETION UNDER (C) IF ADMITTED (A) AND (B). RATIONALE:  EPA POSITION CONTRARY TO STRUCTURE OF ACT AS A WHOLE  MANDATORY LANGUAGE IN §108 WOULD BECOME MERE SURPLUSAGE

7. 7 LISTING POLLUTANTS NRDC v. TRAIN CONSTRUCTING ARGUMENTS, REDUX  AVOID SURPLUSAGE GIVING MEANING TO (C): EPA: “PLANS TO ISSUE” MEANS “OPTS” COURT: “PLANS TO ISSUE” REFERS ONLY TO INITIAL 1971 LIST, I.E. POLLUTANTS FOR WHICH EPA PLANNED IN 1970 TO ISSUE CRITERIA

8. 8 SETTING AN AIR QUALITY STANDARD: LEAD INDUSTRIES ASSN v EPA  BEGINNING: LISTING & AIR QUALITY “CRITERIA” REGARDING HEALTH EFFECTS  END: A NUMERICAL LIMIT ON AMOUNT OF POLLUTANT IN THE AIR  MUST LINK EFFECTS WITH NUMERICAL LIMIT

9. 9 LEAD INDUSTRIES ISSUES (TOP OF 305)  EPA ACTED WITHIN SCOPE OF STATUTORY AUTHORITY?  EVIDENCE ADDUCED THROUGH RULEMAKING SUPPORTED NAAQS?  PROCEDURAL FLAWS REQUIRE RECONSIDERATION?

10. 10 LEAD INDUSTRIES A WORD ABOUT PROCESS CAA RULEMAKING PROCEDURE: SEC 307(d):  DOCKET  NOTICE  BASIS AND PURPOSE  FACTUAL DATA BASIS  METHODOLOGY IN OBTAINING AND ANALYZING DATA  MAJOR LEGAL INTERPRETATIONS AND POLICY CONSIDERATIONS  ALL DATA & DOCUMENTS ON WHICH RULE RELIES SHALL BE IN DOCKET  PROMULGATED RULE: RESPONSE TO SIGNIFICANT COMMENTS MAY NOT BE BASED ON DATA NOT IN DOCKET

11. 11 LEAD INDUSTRIES 307(d) PROCEDURES, CONT’D  JUDICIAL REVIEW: RECORD IS EXCLUSIVELY THE ABOVE ONLY OBJECTIONS RAISED IN COMMENT PERIOD CAN BE RAISED IN JUDICIAL REVIEW GROUNDS FOR REVERSAL:  ARBITRARY, CAPRICIOUS, ABUSE OF DISCRETION, NOT IN ACCORDANCE WITH LAW  IN EXCESS OF STATUTORY AUTHORITY  WITHOUT OBSERVANCE OF REQUIRED PROCEDURE COURT MAY AWARD REASONABLE ATTORNEYS FEES

12. 12 LEAD INDUSTRIES THE STATUTE  NAAQS are standards which “in the judgment of the Administrator, based on (issued air quality) criteria and allowing an adequate margin of safety, are requisite to protect the public health. Sec. 109(b)(1).

13. 13 LEAD INDUSTRIES FACTS: CRITERIA DOCUMENT  PRIME CONCERNS: HEMATOPOIETIC (BLOOD-FORMING) AND NEUROLOGICAL  BLOOD–FORMING ANEMIA: CHILDREN’S THRESHOLD LEVEL: 40 ug Pb/dl (MICROGRAMS PER DECILITER BLOOD); ADULTS: 50 EP ELEVATION (A SUBCLINICAL EFFECT INDICATING IMPAIRED CELLULAR FUNCTIONS): CHILDREN’S THRESHOLD LEVEL: 15-20 ADULTS: 25-30

14. 14 LEAD INDUSTRIES FACTS: CRITERIA DOCUMENT, CONT’D  NERVOUS SYSTEM SEVERE DAMAGE: CHILDREN 80-100; ADULTS 100-200 NEUROBEHAVIORAL DEFICITS: 50-60 (CONTROVERSIAL)  AIR LEAD/BLOOD LEAD RATIO (ug Pb/m 3 AIR: ug Pb/dl BLOOD): 1:1 TO 1:2 SIGNIFICANT VARIABILITY; PRESCHOOL CHILDREN AND PREGNANT WOMEN HAD MORE LEAD IN BLOOD PER AIR LEVEL

15. 15 LEAD INDUSTRIES FACTS: PROPOSED STANDARDS  PROPOSED STANDARD: 1.5 ug Pb/m 3 MONTHLY AVERAGE  COMPLICATING FACTORS: 1. SUBGROUPS MORE SUSCEPTIBLE TO EFFECTS  EPA RESPONSE: PROTECTION OF MOST SENSITIVE GROUP HAD TO BE MAJOR CONSIDERATION; CHILDREN 1- 5  EFFECTS IN THIS GROUP OCCUR AT LOWER LEVELS THAN FOR ADULTS 2. VARIETY OF ADVERSE HEALTH EFFECTS  EPA RESPONSE: PREVENT EP ELEVATION IN CHILDREN; INDICATES IMPAIRMENT CELLULAR FUNCTIONS

16. 16 LEAD INDUSTRIES FACTS: PROPOSED STANDARDS, CONT’D 3. VARIABILITY OF INDIVIDUAL RESPONSES  PROPOSED 15 ug Pb/dl, LOWEST LEVEL FOR EP ELEVATION IN CHILDREN, AS TARGET MEAN POPULATION BLOOD LEVEL  RATIONALE: MOST OF TARGET POPULATION WOULD BE BELOW LEVEL OF ADVERSE EFFECTS 4. AMOUNT OF BLOOD LEAD FROM NON-AIR SOURCES: 12 ug Pb/dl  THUS MAX FROM AIR COULD BE 3

17. 17 LEAD INDUSTRIES FACTS: PROPOSED STANDARDS, CONT’D 5. HOW MUCH LEAD IN AIR WOULD CREATE 3 ug Pb/dl IN BLOOD?  USE AIR LEAD/BLOOD LEAD RATIO 1:2.  RESULTS IN 1.5 ug Pb/dl IN BLOOD

18. 18 LEAD INDUSTRIES FACTS: PUBLIC COMMENTS  NOT DISPUTED: SELECTION OF YOUNG CHILDREN, AND NON- AIR CONTRIBUTION  AREAS OF CONTROVERSY: CHOICE OF EP ELEVATION, 15 THRESHOLD, AIR LEAD/BLOOD LEAD RATIO, MARGIN OF SAFETY EP CLAIM:  SUB CLINICAL ONLY; NOT HARMFUL  SHOULD USE DECREASE IN HEMOGLOBIN (BEGINS AT 4O ug/dl)

19. 19 LEAD INDUSTRIES FACTS: FINAL STANDARDS  STILL 1.5 ug Pb/M 3  ARRIVED AT DIFFERENTLY— EPA: THERE ARE LEGITIMATE CONCERNS ABOUT HEALTH IMPACTS OF EP ELEVATION ONLY AT 30 (INSTEAD OF 15) IS EFFECT ADVERSE TO HEALTH OF CHILDREN;  30 THUS SELECTED AS MAX SAFE LEVEL; RATIONALE:  FIRST IMPAIRMENT OF HEME SYNTHESIS  MARGIN OF SAFETY FOR ANEMIA (40) AND NERVOUS DEFICITS (50)  CDC SCREENING LEVEL (30)

20. 20 LEAD INDUSTRIES FACTS: FINAL STANDARDS, CONT’D NEXT, WHAT PERCENTAGE OF CHILDREN SHOULD BE BELOW 30?  CHOSE 99.5%  TO ACHIEVE THIS, TARGET MEAN MUST BE 15 FINALLY, SAME NON AIR SOURCE AND AIR LEAD/BLOOD LEAD ANALYSIS

21. 21 LEAD INDUSTRIES AUTHORITY ARGUMENTS  NO EVIDENCE ADVERSE HEALTH EFFECTS AT 30 ug Pb/dl MERELY SUB-CLINICAL EFFECTS  EPA EXCEEDED AUTHORITY BY REFUSING TO CONSIDER ECONOMIC AND TECHNICAL FEASIBILITY MUST CONSIDER FEASIBILITY IN DETERMINING “ADEQUATE MARGIN OF SAFETY”

22. 22 LEAD INDUSTRIES HOLDING RE CONSIDERATION OF FEASIBILITY  EPA DID NOT EXCEEDED AUTHORITY BY REFUSING TO CONSIDER ECONOMIC AND TECHNICAL FEASIBILITY OF ATTAINMENT IN SETTING NAAQS NO SUPPORT IN LANGUAGE OR HISTORY; CONGRESS IN OTHER SECTIONS DIRECTED CONSIDERATION OF FEASIBILITY. (312)

23. 23 LEAD INDUSTRIES SPECIFIC HEALTH EFFECTS ARGUMENTS  CONGRESS ONLY AUTHORIZED PROTECTION AGAINST “CLEARLY HARMFUL” EFFECTS  NO DISPUTE: POPULATION - CHILDREN; KEEP 99.5% BELOW SAFE LEVEL; NON-AIR CONTRIBUTION  ARGUMENTS:  1. EP ELEVATION AT 30 IS NOT HARMFUL; JUST SUBCLINICAL  2. 30 AS MARGIN OF SAFETY FOR ANEMIA AT 40 NOT SUPPORTED  BECAUSE RECORD DOESN’T SUPPORT CONCLUSION OF ANEMIA AT 40  3. NO STATED BASIS FOR CONCLUSION NERVOUS DEFICITS AT 50  4. NO EXPLANATION WHY 30, NOT 35, NEEDED FOR MARGIN OF SAFETY (313)

24. 24 LEAD INDUSTRIES HOLDING RE HEALTH EFFECTS  SUPPORT ADEQUATE FOR EPA CONCLUSIONS RE HEALTH EFFECTS RIGOROUS REVIEW PROCESS LED TO CRITERIA DOCUMENT THERE IS DISAGREEMENT AMONG EXPERTS, BUT EPA DECISIONS ADEQUATELY SUPPORTED BY EVIDENCE

25. 25 LEAD INDUSTRIES ARGUMENT & HOLDING RE MARGIN OF SAFETY  ARGUMENT: MULTIPLE MARGINS USED; STATUTE SAYS “MARGIN” NOT “MARGINS”  HELD: MARGIN APPROACH USED IS NOT ONLY ONE, BUT IT IS A CHOICE LEFT TO EPA

26. 26 COST AND TECHNOLOGY IN STANDARD SETTING: WHITMAN v AMERICAN TRUCKING IND. ISSUE  NAAQS are standards which “in the judgment of the Administrator,” (based on criteria documents)... and allowing an adequate margin of safety, are requisite to protect the public health. Sec. 109(b)(1).  SCALIA: “one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting standards” (316)

27. 27 WHITMAN INDUSTRY ARGUMENTS  EPA CAN CONSIDER COSTS IN DETERMINING “ADEQUATE MARGIN” OF SAFETY WHAT IS “REQUISITE TO PROTECT THE PUBLIC HEALTH”  “BASED ON CRITERIA” DOCUMENTS EFFECTS ON “PUBLIC HEALTH”  DEFINITION OF “PUBLIC HEALTH”  ECONOMIC COST OF IMPLEMENTATION MIGHT PRODUCE HEALTH LOSSES COST INFORMATION INCLUDED IN SEC. 108

28. 28 WHITMAN HOLDING  SCALIA: NEED CLEAR TEXTUAL COMMITMENT TO CONSIDERING COSTS CLEAR TEXTUAL COMMITMENT NOT PRESENT

29. 29 BREYER CONCURRENCE  DOESN’T REST CONCLUSION SOLELY ON 109 OR CLEAR TEXT  WOULD READ SILENCES AS PERMITTING CONSIDERATION OF COSTS, “ALL THINGS BEING EQUAL”  RELIES ON LEGISLATIVE HISTORY  TECH FORCING  SO COSTS IRRELEVANT; MORE DIFFICULT TO ASSESS  109 DOES NOT REQUIRE ELIMINATION OF ALL RISKS  “REQUISITE, “ADEQUATE,” “JUDGMENT OF ADMIN”  COMPARATIVE HEALTH CONSEQUENCES