Document MoK8DnqV2bGwaL2oLGn6babNL

5- 6 12 m12 0164cma034 July 12/ 1985 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 17 17 18 19 ) 20 NATURAL RESOURCES DEFENSE COUNCIL, ) 21 INC. , 22 23 Petitioner, 24 25 v. 26 27 U.S. ENVIRONMENTAL PROTECTION 28 AGENCY, et al., ) 29 ) 30 Respondents. ) 31 32 __ 32 32 38 _> STATEMENT OF ISSUES PRESENTED FOR REVIEW 39 40 1. Whether this Court should consider petitioner's 41 claimthat the Environmental Protection Agency ("EPA") acted 42 unlawfully by considering feasibility in deciding whether to 43 adopt proposed amendments to its vinyl chloride standard, when 44 petitioner failed to challenge the current vinyl chloride stan- 45 dard in court and did not participate in the administrative 45 proceedings on either the current standard or the proposed 46 amendments. 47 . 48 2-. Whether Congress intended to require that EPA, 48 in all cases, must promulgate zero-risk standards under Section 50 112 of the Clean Air Act that would completely prohibit all fEN 3724 51 emisisions of vinyl chloride and any other pollutant for which a 52 health effects threshold cannot be defined, even when such a S^^tandard would result in the closure of entire industries with54 out producing any significant improvement in public health pro56 tection as compared to a standard that takes feasibility into 57 account. 58 60 RULE 8(b) STATEMENT 61 62 The pending case was not previously before this Court 63 or any other court. Similar issues relating to EPA's regula64 tion of hazardous air pollutants are presented in the following 65 proceedings', presently pending before this Court-:--Natural 66 Resources Defense Council. Inc, v. Thomas'. Nos. 84-1387, et al. 67 (benzene); and Environmental Defense Fund. Inc, v. Thomas. 6^J^os. 84-1524, et al., Natural Resources Defense Council. Inc. 70 v. Thomas. Nos. 85-1123, et al., and American Mining Congress 71 v. Environmental Protection Agency. Nos. 85-1285, e al. 72 (radionuclides). 73 73 75 STATEMENT OF THE CASE 76 78 On December 24, 1975, EPA listed vinyl chloride 79 ("VC") as a hazardous air pollutant under Section 112 of the 80 Clean Air Act (the "Act"), 42 U.S.C. S 7412 (1982), and pub80 lished a proposed national standard limiting VC emissions .from 9 10 11 2- - TEN 3725 32 various sourc categories. 40 Fed. Reg. 59477, 59532. _ln the 33 standard-setting proposal, EPA took the position "that there is 3 o atmospheric concentration [of vinyl chloride or any other 36 carcinogen] that poses absolutely no public health risk," so 37 that a "zero emission limitation would be the only emission 38 standard which would offer absolute safety from ambient 39 exposure." 40 Fed. Reg. at 59534. 90 91 The agency did not, however, require "absolute 32 safety" by proposing a complete prohibition of VC emissions. 94 Such a requirement, EPA observed, would have resulted in clo ss sure of the entire industry and produced serious, adverse eco37 nomic and social impacts.-^ At the same--time, EPA noted that 36 there were a variety of "beneficial vinyl chloride products for 07 which desirable substitutes are not readily available," and it 08^observed that substitutes for vinyl chloride have not been 09 thoroughly studied and present "potentially adverse health and 10 environmental impacts" of their own. 40 Fed. Reg. at 59534. 11 In light of these considerations'and. the fact that available 13 ___________________ 13 97 1/ See id. at 59534. The Environmental Defense Fund 98 T"EDF"), the principal environmental interest group 99 participating in the VC proceedings, concurred in this assess- 00 ment, stating: "It is generally agreed Ithat requiring a zero 31 emission level] would force the industry to shut down." State- 32 ment of Robert Rauch and David Medine [of EDF] at the 33 Environmental Protection Agency's Public Meeting on the pro- 34 posed Amendments to the Final Emission Standard for vinyl Chlo- 05 ride (July 19, 1977) at 4. 9 10 TEN 3726 12 control technology was "capable of substantially reducing emis- ' 13 sions of vinyl chloride into the atmosphere, EPA concluded that m14 setting zero emission limits would be neither desirable nor necessary. Id. 16 17 In October 1976, EPA promulgated the final vinyl 18 chloride standard, which was modeled closely on its December 18 1975 proposal. 41 Fed. Reg. 46560. Like the proposal, the 19 final standard required covered plants to reduce VC emissions 21 to the level attainable using the best available control tech22 nology but-did not prohibit VC emissions entirely. Petitioner 24 NRDC, which had not commented on the proposed standard, did not 25 challenge^the final standard in court. A petition for review 27 was filed by EDF, but the petition was dismissed pursuant to a 30 settlement agreement requiring EPA to publish proposed amend3^^ients to the standard that were designated in the settlement 33 agreement. 34 36 The proposed amendments, published on June 2, 1977 37 (42 Fed. Reg. 28154), would have made the standard more strin38 gent in certain respects, but would not have imposed a 39 zero-emissions(or no measurable emissions) ^imitation. 40 Instead, they would have lowered permissible VC emission levels 41 based upon a different assessment of feasibility and available 42 control technology than the one on which the 1976 standard was 43 based. As under the 1976 standard, a very small, but finite 9 10 II 4 - TEN 3727 15 level of cancer risk to the general public would still have 46 existed under th proposed`amendments if, like NRDC, one sub4^^scribes to the position that any non-zero level of- exposure to 43 vinyl chloride presents some finite risk of cancer. Despite 49 this, NRDC did not comment on the proposed amendments.-^ 56 57 On January 9, 1985, EPA published its decision to 53 withdraw the proposed amendments. 50 Fed. Reg. 1182. The 59 agency noted that the current standard has reduced VC emissions 59 by 95 percent and that, under the standard, the risks 60 attributed to VC exposures from all covered sources are only 61 0.55 cases of cancer per year nationwide, id. The only action 62 that would eliminate this very small residual health risk 63 entir ly, the agency found, would be a complete ban on the pro.64 duction and use of vinyl chloride, which would result in clo.et^kure of the entire industry, id. at 1182-1183. EPA restated .66 its earlier conclusion that such drastic action was not desir- .67 able or necessary and proceeded to consider whether emission .68 limitations more stringent than those contained in the current .69 standard (but not a complete prohibition of emissions) should .70 be adopted. It concluded that, short of industry closure, 173 _____________ ; 173 150 2/ EDF did file comments on the proposed amendments, 151 characterizing them as "sound" and urging their promulgation. 152 See Comments of the Environmental Defense Fund on the Proposed L54 Amendments to the Final Emission Standard for Vinyl Chloride at L55 3 . 9 10 11 - 5 - TEN 3728 2 there did not appear to be a feasible means of achieving any '3 significant additional margin of protection for the public '^^ealth. Accordingly, the proposed amendments were withdrawn. '6 '8 SUMMARY OF ARGUMENT `9 : 1 [To Be Provided] ;2 12 14 # !5 ;9 I. 0 >1 5 ARGUMENT `. This Court Should Not Consider the Claims Raised in Petitioner's Brief. NRDC claims that EPA's decision to withdraw the pro- 6 posed amendments to the vinyl chloride standard was unlawful 38 because it was not based solely on health-related factors, but 59 instead reflected considerations of technological feasibility 3 nd, to a .lesser extent, cost. Whatever the merits of this. 31 claim may be and we believe it to be without merit), the fact 32 is that it would be equally applicable to the current standard 34 (adopted in 1976) and to the proposed amendments whose with- 35 drawal NRDC is challenging here. By raising the claim now, 36 NRDC really is attempting to attack the current standard col- 37 laterally and is asking phis Court to consider an objection 38 that was not presented to the agency. I'O 10 10 10 9 10 11 - 6 - TEN 3729 11 _ . As indicated above, despite EPA's finding that no 12 .level of exposure to vinyl chloride other than zero is abso- l^^Lutely Safe, neither the standard adopted in 1976 nor the Ero" 15 posed amendments prohibited emissions of vinyl chloride 16 entirely. To the contrary, both explicitly reflected some con- 17 sideration of feasibility. Thus, the legal claim that NRDC 18 advances in the present case could have been advanced with 19 equal force in a challenge to the 1976 standard or by way of 20 comment on the proposed amendments. But NRDC did not challenge 21 the standard in 1976 and did not comment on the proposed-amend- 22 ments. In these circumstances, Section 307(b) of the Clean Air 23 Act, 42 U.S..C. S 76.07(b), and traditional canons of administra24 tive law preclude NRDC from raising this claim now. 26 27 Section 307(b)(1), 42 U.S.C. S 7607(b)(1), requires 2l^hat a petition for review of action of the Administrator in 29 promulgating any emission standard or requirement under Section .30 112 must be filed within 60 days of the date on which notice of .31 such promulgation appears in .the Federal Register.-3/ Since .39 notice of promulgation of the current standard appeared in the .42 ;42 :32 3/ At the time the vinyl chloride standard was promul- ;33 gated in 1976, the period within which a petition for review ;34 had to be filed was only 30 days. See 42 U.S.C. S 1857h-5(b). :35 (1976). The 1977 Clean Air Act Amendments extended this period :36 to 60 days. See Group Against Smog and Pollution, Inc, v. EPA.- :38 665 F.2d 1284, 1289 & n.39 (D.C. Cir. 1981). 9 10 11 - 7 - TEN 3730 40 Federal Register in October ISIS, it clearly is too late to i 42 challenge the current standard on the ground that it reflects 4^^onsiderations of feasibility and fails to prohibit VC emis44 sions entirely.-^ Yet that is precisely the nature of the 51 challenge that NRDC seeks to present to"this Court. But if the 52 vinyl chloride standard is unlawful now because it does not 53 prohibit VC emissions entirely, it was unlawful in October 1976 53 for the very same reason. Indeed, if NRDC's interpretation of 54 Section 112 is correct, even the proposed amendments to the 55 standard would have been unlawful if they had been promulgated 57 by EPA, for they, too, reflected considerations of feasibility. 58 Yet NRDC stood silent when the standard was adopted in 1976 and 59 remained silent when the proposed amendments were published in SO 1977. By raising the "ample margin of safety" issue in the 54 context of a challenge to EPA's withdrawal of the proposed 55 amendments, NRDC is -attempting ^now to do indirectly what it is 56 forbidden by statute from doing directly."-/ As this Court has 70 ___________________ 70 44 4/ As the Fifth Circuit recently noted, the Clean Air 45 Act "is clear about one thing, ... an emissions standard is 46 subject to judicial review only ... if the petition for 47 review is filed within 60 days of the Administrator's action." 48 United States v. Ethvl Coro.. ___ ' F.2d ___ (5th Cir. June 3, 49 1985), slip op. at 4642. 67 5/ Natural Resources Defense Council v. Nuclear 69 Regulatory Conun1n, 666 F.2d 595, 601 (D.C. Cir. 1981). 9 10 11 - 8 - TEN 3731 70 recognized, timeliness requirements such as the one contained * 71 in Section 307(b)(1) are jurisdictional in nature and ^reflect 73^ 1 a deliberate congressional choice to impose statutory finality on agency orders . . . . ^ If this Court vere to entertain 31 NRDC's claim now, it would undermine this deliberate congres32 sional choice.--^ 39 90 The present case is a perfect example of why the 91 policy embodied in Section 307(b)(1) should be respected. If 92 NRDC had challenged the current standard in 1.976 and obtained a 93 favorable ruling on its present claim, the vinyl chloride i 94 industry could have avoided spending enormous sums of money to 95 comply with' an invalid standard, and over seven years of 96 adminstrative proceedings-on the proposed amendments to the 97 standard could have been avoided, since such a ruling would ^^iave indicated that the proposed amendments, if adopted, would 00 themselves be unlawful. .01 01 _______________________ .01 :74 6/ Eaole-Picher Industries, Inc, v. United States 75 Environmental Protection Agency. ____ F.2d , Nos. 83-2259, et :76 al. (D.C. Cir. April 16, 1985), slip on. at 12, quoting City of ;77 Rochester v. Bond. 603 F.2d 927, 935 (D.C. Cir. 1979); Natural :79 Resources Defense Council v. Nuclear Regulatory Comm'n. 666 280 F.2d 595, 602 (D.C. Cir. 1981). 282 2/ Cf. United States v. Ethyl Coro. , ___ F.2d ____, slip 284 op. at 4644 (the clear language of Section 307(b)(1) reflects 286 "Congress's manifest intent to avoid protracted and .inconsis- 287 tent adjudications over the validity of EPA emission stan- 288 dards"). 9 10 11 * - 9 - fEN 3732 02 The petition for review also should be dismissed 02 because NRDC did not participate in the rulemaking proceeding O^^on the proposed amendments and is now seeking to Vaise an 04 objection that it could have, but did not, raise during the 05 period for public comment. Subject to two exceptions that do 06 not apply here, Section 307(d)(7)(B) of the Act, 42 Q.S.C. S 07 7607(d)(7)(B)' (1982), provides that l(o]nly an objection to a 09 rule or procedure whtch was raised with reasonable specificity 10 during the period for public comment . . . may be raised during 11 judicial review. 16 17 Although Section 307(d)(7)(B) does not strictly apply 18 to the proposed amendment's the policies underlying Section 27 307(d)(7)(B) clearly do apply. Thus, this Court has routinely ;23 refused to entertain challenges to agency rulemaking actions L^^when the challenges were raised by parties who did not partici- 31 pate in the rulemaking proceeding The rationale for !36 ' ; 36 ill 3/ The only exceptions are (i) where it was impractica- 312 ble to raise the objection during the period for public comment 313 and (ii) where the grounds for the objection arose after the 314 period for public comment. 318 9/ Section 307(d) (1,1) states: "The requirements of this 319 subsection shall take effect with respect to any rule the 320 proposal of which occurs 90 days after the date of enactment of 321 the Clean Air Act Amendments of 1977." Since the Clean Air Act 322 Amendments of 1977 were enacted on August 7, 1977, while the 324 proposed amendments'to the VC standard were published on June 326 2, 1977, Section 307(d)(7)(B) does not formally apply. 332 10/ See, e.g., Environmental Defense Fund v. EPA, 598 333 F.2d 62, 91 (D.C. Cir. 1978); Nader v. Nuclear Regulatory 336 3 [Footnote continued next page] 36 .declining to entertain such challenges is obvious: permitting 37 "'a person to stand aside and speculate on the outcome [of a 3^^-ulemaking proceeding]; if adversely affected, come into this 39 court for relief; and then permit the whole matter to be 40 reopened in his behalf, would create an impossible situa41 tion.'"--^ 45 46 The fundamental legal objection that NRDC seeks to 47 raise in the present case clearly was known to NRDC at the time 47 of .the period for public comment on the proposed amendments. 49 Yet-NRDC did not raise its present objection during the period 51 for public comment;--^ nor did it participate in that proceed- 53 ing in any.way. It, therefore, should not be permitted to 55 55 3 [Footnote continued from preceding page] 3^Comm' n. 513 F.2d 1045, 1054 (D.C. Cir. 1975); Gage v. Atomic 35 Energy Comm'n. 479 F..2d 1214 (D.C. Cir. 1973). 41 ll./ Nader v. Nuclear Regulatory Comm'n, 513 F.2d at 42 1054-1055, Quoting Red River Broadcasting Co. v. FCC, 98 F.2d 43 282, 286-37 (D.C. Cir.), cert, denied, 305 U.S. 625 (1938). 51 12/ NRDC does not suggest that anyone else objected to 53 the proposed amendments on the ground that they reflected con- 54 siderations of feasibility either. As noted above, EDF signed 55 a settlement agreement calling for' publication of the proposed 56 amendments, characterized them as ^sound" in- its comments,' and 57 urged their promulgation. Thus, EDF cannot be said to have 58 raised the objection that any action of the Administrator in .59 promulgating a standard that does not prohibit all VC emissions :60 would be unlawful. Nor are we aware of any other party who 161 raised such an objection in comments on the proposed amend- 162 ments. 9 10 11 - 11 - TEN 3734 64 raise what amounts to an objection to the 1976 standard and to 65 the proposed amendments at the present time.--/ .72 II. 73 .74 EPA's Application of the "Ample Margin of Safety" Provision of Section 112 Has Been Entirely Reasonable and Consistent With Congressional Intent. .75 ,79 As discussed above, this Court need not reach the ;30 merits of NRDC's claim in the present case. If NRDC's petition ia 1 for review is consider-ed on the merits, however, it still ;82 should be dismissed, since EPA's interpretation and application S83 of th "ample margin of safety" provision of Section 112 has % !84 been entirely reasonable and consistent with congressional 385 i.ntent.- In this part of our brief, we will show the following: !85 (1) NRDC's zero-risk/zero-emissions interpretation of Section 386 112 would have drastic social and economic consequences that jq^Zongress clearly did not intend; (2) The language of Section 389 112 does not require EPA to establish zero-risk/zero-emissions 390 standards; (3) The legislative history of Section 112 cannot 391 fairly be read to preclude any consideration of feasibility in 392 the setting of emission standards for non-threshold pollutants; 393 and (4) EPA's interpretation of Section 112 is reasonable and 394' should be respected by this Court. 395 395 395 __ 395 365 13/ See Environmental Defense Fund v. EPA, 598 F.2d at 366 91; Nader v. Nuclear Regulatory Comm'n, 513 F.2d at 1044, 1045. 9 10 rEN 3735 99 . A. If Adopted, Petitioner's Position Would Have a 90 * j Devastating Economic and Social Impact. 31 95 Petition r's position in th present case is simple, 9^^f extreme: A Section 112 standard for a carcinogen such as 97 vinyl chloride (or for any other pollutant as to which no clear 38 health effects threshold has been defined) must prohibit emis39 sions of the pollutant entirely, regardless of the conse- 10 quences. See Brief for Petitioner ("Pet. 8r." at 14, 30). The 11 fact that such a zero-emissions standard might be technologi- 12 cally infeasible and cause an entire industry to shut down is 13 irrelevant in NRDC's view, because industry closure, NRDC 14 ass rts, is just the result that Congress contemplated in the 15 cas of a pollutant which may present a health hazard at any 16 level of exposure. See id. Consequently, the argument goes, 17 if EPA gives, any consideration at all to feasibility, rather l^^han simply Exhibiting all emissions of a non-threshold 19 pollutant like vinyl chloride entirely, the agency acts unlaw- 20 fully. 21 22 ' The implications of this position are staggering. . 23 There are literally dozens and perhaps hundreds of so-called 24 ^non-threshold" pollutants -- i.e.. pollutants for which no 25 clear health effects threshold has been defined. The primary 26 examples of such pollutants are carcinogens, which EPA presumes 27 to present a risk of cancer at any level of exposure above. 9 10 11 - 13 - TEN 3736 28 zero. See EPA's Airborne Carcinogen Policy, 44 Fed. Reg. 29 58642, 58660 (1979). There may well be more than a hundred 3^^arcinogens or potential carcinogens which, as NRDC would apply 31 the test, should be subject to regulation under Section 112.--14x/ 46 If these substances were subjected to zero-risk/zero-emissions 47. standards, the impact could be devastating. 49 51 EPA outlined the consequences of NRDC's present 52 position almost six years ago in proposing its Airborne 53 Carcinogen Policy. 54 57 A requirement that the risk from atmo 57 spheric carcinogen emissions be reduced to 58-- 59 zero would produce massive social disloca tions, given the pervasiveness of at least 60 minimal levels of carcinogenic emissions in 60 key American industries. Since few such 61 industries could soon operate in compliance 62 with zero-emission standards, closure would 6 be the only legal alternative. Among the important activities affected would, be the 64 generation of electricity from either 65 coal-burning or nuclear energy; the 65 manufacturing of steel; the mining, smelt 66 ing, or refining of virtually any mineral 67 67 32 14/ Thus, NRDC states: "Substances capable of causing 33 serious, usually fatal diseases such as cancer obviously 34 qualify as hazardous air pollutants." Pet. Br. at 4. The 35 National Toxicology Program has identified more than 100 sub 36 stances or groups of substances that are either known to be 37 carcinogenic or that may reasonably be anticipated to be 38 carcinogens. See U.S. Department of Health and Human Services 39 (National Toxicology Program), Third Annual Report on 40 Carcinogens (Summary, September 1983). In a recent appearance 41 before the Subcommittee on Health and the Environment of the 42 House Energy and Commerce Committee, a spokesman for NRDC 43 testified: "Dozens of toxic compounds are commonly found in 44 the air breathed by millions of Americans." Testimony of David 45 D. Doniger on H.R. 2576: The Toxic Release Control Act of 1985 46 (June 11, 1985) at 1. 9 1 11 - 14 - TEN 3737 i 67 57 68 m69 82 36 (e.o., copper, iron, lead, zinc, and lime stone), the manufacture of synthetic organic chemicals; and the refining, storag , or dispensing of any petroleum prod uct.-^' EPA' general conclusion on this point has been reaf- 37 firmed in the context of'specific Section 112 standard-setting 38 proceedings. For example, in the inorganic arsenic proceeding, 91 EPA noted that the health risk attributable to arsenic emis- 92 3ions from primary lead smelters is extremely low and that the 93 only way to reduce this very low health risk further would be 95 to close the plants.--^ The agency concluded that such drasti.c 98 action was not reasonable in light of the very low .level of 01 risk that exists when the plants are permitted to continue 02 op rating using the best available control technologySim- 03 ilar conclusions were reached for several other source O^^ategories of inorganic arsenic emissions, where the very low 06 ' 06 69 15/ 44 Fed. Reg. at 58660. Nor would the impact be 70 limited to the industrial sector of our economy. Since prod- 72 ucts of incomplete cumbustion also are thought to be 73 carcinoginic, non-industrial activities as widespread as the 74 burning of wood in home fireplaces also could be subject to 75 prohibition under NRDC's interpretation of Section 112. See 76 _id. at 58660 n.20. The same might be true of municipal 77 landfills, wastewater treatment plants, dry cleaners, and other 78 non-industrial sources of non-threshold pollutants. See EPA, 79 "The Air Toxics Problem in .the United States: An Analysis of 80 Cancer Risks for Selected Pollutants," pp. 55-66, 78-82 (May 81 1985). 95 16/ See Proposed Standard for Jnorganic Arsenic, 48 Fed. 96 Reg. 33112, 33117 (1983). 02 17/ See id. 9 TEN 3738 05 '.level of risk achieved through the use of feasible technology 06 could be eliminated only by closing down the industry,i/ The same was found to be true in the case of vinyl 12 chloride. Thus, in withdrawing the proposed amendments in 14 January of this year, EPA observed: 2To eliminate the risk of 16 VC exposure entirely, a complete prohibition of all VC emis17 sions would be necessary. This would require the closure of 18 the entire industry and result in serious, adverse economic 19 impacts.'* 50 Fed. Reg. at 1183.--^ 23 25 In short, NRDC's zero-risk/zero-emissions interpreta26 tion of Section 112 would have the most far-reaching and dras28 tic consequences for our nation's economy and could result in :29 massive social dislocation. According to NRDC, these cata; clysmic results are just what Congress had in mind, even though 333 no one in Congress suggested'that this would be the result of 334 enacting Section 112. In the pages that follow, we will demon335 3trate that the language of Section 112 can and should be read 336 more reasonably than NRDC suggests, so that.a 337 zero-risk/zero-emissions limitation is not required for 338 non-threshold pollutants. We also'will show that this more 541 541 506 18/ See id. at 33117 (primary zinc smelters); Id. at 507 33117-33118 (zinc oxide plants); id. at 33118 (arsenic chemical 508 manufacturing plants). 19 19/ As noted above, EDF concurred in the assessment that 20 requiring a zero-emissions level for vinyl chloride would force 21 the industry to shut down. See p. 3 n.l., supra. i 11 - 16 - in in in TEN 3739 40 .reasonable r eading of Section 112 is fully supported by th 41 legislative history and is entirely consistant with the intent 4^pf Congress. :43 ;47 B. The Standard-Setting Language of Section 112 Does Not ;4a Require EPA To Establish Zero-Risk/Zero-Emissions ;49 Standards. ;50 ;54 Section 112(b)(1)(B) of the Clean Air Act directs the. i55 Administrator of EPA_to establish a standard for hazardous air ;56 pollutants "at the level which in his judgment provides an 557 ample margin of safety to protect the public health." 557'"&etitioner NRDC reads this phrase as requiring EPA to set i59 risk-free standards for all hazardous air pollutants. To NRDC, 563-'th word "safety" means absolute safety, which, in the case of 361 a non-threshold pollutant such as vinyl chloride, can be 562'achieved only if emissions of the substance are prohibited 36^^ent irely, regardless: of the consequences. in in in in in in tn in in in 564 566 But this zero-risk construction is not the most rea- 366 sonable reading of the word "safety" or of* the phrase "ample 367 margin of safety." To the contrary, as the Supreme Court has 568 observed,. 569 572 572 73 74 74 75 76 77 79 79 77 20/ 7| nst.. ^safe" is not the equivalent of "risk-free." There are many activities that we engage in every day -- such as driving a car or even breathing city air -that entail some risk of accident or material health impairment; nevertheless, few people,.would consider these activities "unsafe.^ Industrial Union Dep't, AFL-CIO v. American 448 U.S. 607, 642 (1980) (emphasis added). Petroleum 9 10 11 - 17 - TEN 3740 2 In order to be characterized as "unsafe," the Supreme Court 13 stated, an activity or situation must present a "significant AQ.sk of harrn."^^ S3 ?0 Nor does the concept of a "margin of safety" require 91 that risks be eliminated entirely. Rather, as EPA has pointed 32 out, Congress borrowed the concept of a "margin of safety" from 93 the .field of engineering, where the term had previously been 35 employed in the Federal Coal Mine Health and Safety Act of 36 1969, 30 CJ.S.C. S 874(a).While the margin of safety con- 98 cept was intended to minimize safety risks to miners,-such as 39 the risk that a hoist cable might give way, Congress surely 30 understood that providing a margin of safety in tha^context 31 would not "guarantee a failure risk of zero."^^ 32 ' 3 Thus, the concept of an "ample margin of safety" is 34 perfectly compatible with the existence of some residual level 35 of risk. If Congress had wanted to completely prohibit emis- 36 sions of every non-threshold air pollutant that is hazardous to 38 _ 38 34 21/ _ld. Similarly, Professor Currie has pointed out that 35 the phrase "safe or healthful" as used in the Occupational 36 Safety and Health Act of 1970 allows "room for some play." 37 David P. Currie, "OSHA," 1976 Am. Bar Foundation Research J. 38 1107, 1134 (1976). 96 22/ 97 58660. See EPA's Airborne Carcinogen Policy, 44 Fed. Reg. at 01 23/ Id. 9 10 i - 18 - - TEN 3741 07 health, it surely knew how to do so explicitly, for it came 08 very close to taking precisely that approach in Section 115 of l^^the Senate bill from which Section 112 of the Act was 11 derived.--^ The prohibition requirement was abandoned, how16 ever, in favor of the "ample margin of safety" concept. More17 over, the determination of what level of-emissions is consis19 tent with an ample margin of safety was committed to the 20 judgment of the Administrator. 21 22 By providing for the adoption of standards, rather 23 than prohibiting emissions outright, and by calling for the 24 exercise of the Administrator's judgment in setting the stan- 25 dards, Congress opted for a more flexible approach than the 26 zero-risk/zero-emissions position advocated by NRDC.--' ;33 instead of dictating the result that EPA must reach in all ;3:ases, Congress ^left it to the Administrator to pour content ;35 into these relatively broad concepts" of emission standards 37 reflecting an ample margin'of safety.--/ 39 ' 39 11 24/ See Section 115 of S.4358 in A Legislative History of 12 the Clean Air Act Amendments of 1970. Comm. Print No. 18, Sen- 13 ate Comm, on Public Works, 93rd Congress, 2d Sess. 565 (1974) .14 (hereafter referred to as "1970 Leg. Hist."). ,26 25/ The approach taken in Section 112 also contrasts with 28 the far more absolute command of statutes such as the Delaney 29 Clause of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. S 30 348(c)(3)(A), which provides simply and unequivocally that "no 31 additive shall be determined to be safe if it is found to 32 induce cancer when ingested by man or animal." 37 26/ United States v. Ethvl Corp.. ___ F.2d ____, slip op. 38 at 4642. 11 - 19 . TEN 3742 40 ' Perhaps the best indication of the fragility of 41 NRDC's textual argument is the fact that it focuses not on what ;4^^Section 112 says buton what it fails to say. Section 112, as ;43 NRDC points out, does not -expressly direct the Administrator to ;44 set standards based upon considerations of .technological ;45 feasibility and cost. Nor, however, does it expressly preclude ;46 the Administrator from considering such factors. Nonetheless, 347 NRDC asserts that the*absence of a specific, affirmative man- 548 date to consider feasibility means that feasibility cannot be 349 considered at all in the setting of emission standards under iS'l Section 112. For, according to NRDC, the courts "have ruled 352 thab-an agency charged with setting standards to protect public ;53 health from dangerous pollutants cannot . . . take technologi- 5 54 cal or economic considerations into account unless the statute 55^^xpressly so provides." Pet. Br. at' 14. This proposition does 557 not withstand analysis. 5 58 359 The case on which NRDC places principal reliance, 360 American Textile Manufacturers Institute v. Donovan, 452 U.S. 361 490 (1981), did not hold that an agency charged with setting 562 standards .to protect the public health cannot take technologi- 363 cal or economic considerations into account unless the statute 364 expressly so provides. To the contrary, the Court observed 365 that technological and economic considerations did have to be 366 taken into account under the statute at issue in that case, the 9 10 11 - 20 - TEN 3743 67 Occupational Safety and Health Act of 1970 ("OSH Act"), 29 68 U.S.C. SS 651, et sea. 11982). The only question at issu was 7^piow they should be taken -into account. The Court conclud d 73 that, under the OSH Act, these factors should be taken into 74 account through a feasibility analysis rather than a 75 cost-benefit assessment Since NRDC's claim here is that 83 EPA cannot take technological feasibility or costs into account 34 in any wav whatsoever under Section 112 of the Clean Air Act, ** 35 the Supreme Court's finding that cost-benefit analysis is not 36 required under the OSH Act has no bearing on the present case. 38 . 39 Nor are this Court's decisions in Lead Industries 90 Association. Inc, v, EPA. 647 F.2d 1130, cert. denied, 449 U.S. ;90 1042 11980), or Hercules. Inc, v. EPA. 598 F.2d 91 (D.C. Cir. ;91 1978), on point. In the Lead Industries case, the court ;9^leferred to EPA's view that it is not required to consider eco- >93 nomic or technological feasibility in setting primary ambient >94 air quality standards designed to achieve an "adequate margin >95 of safety" under Section 109 of the Clean Air Act, 42 U.S.C. S >96 7409 (1982).--^ Unlike Section 112 emission standards, 701 701 S76 27/ See American Textile Mfrs. Inst, v. Donovan. 452 U.S. >77 at 509 ("Thus, cost-benefit analysis by OSHA is not required by 578 the statute because feasibility analysis Is."). Moreover, the 579 Court acknowledged that a requirement for cost-benefit analysis 580 could be imposed through the use of general language, such as 581 the term "unreasonable risk." See id. at 510 n.30. 596 28/ See Lead-Industries Association. Inc, v. EPA. 647 597 F.2d at 1148. In reaching its decision, the Court observed: 701 [Footnote continued next page] 11 21 TEN 3744 '01 however, Section 109 ambient air quality standards do not actu- '02 ally impose- pollution control requirements on any emitting '03 sources.Rather, they serve as the basis for the develop'O^^ment by individual states of implementation plans. These '05 implementation plans, in turn, impose emission limitations on '07 various emitting sources within the state in order to achieve '08 the ambient air quality level specified in the Section 109 ?09 standard. See id. '10 'll Under the Clean Air Act, states are free to consider 712 economic and technological feasibility in selecting the mix of T13 control devices that will be utilized under the implementation '14 plan to achieve the required ambient air quality levels. Con- 716 sequently, the fact that .feasibility is not considered in 717 setting the Section 109 standard itself does not mean that individual plants, let alone entire industries, would have to T19 close because of an inability to comply with an emissions limi- ?20 tation. To the'contrary, as the Supreme. Court has noted, '22 "industries with particular economic or technological problems '23 may seek special treatment in the state implementation] plan '29 ___________________ '29 3 [Footnote continued from preceding page] 3 i98 "Unless it can be shown that the Administrator's construction S99 of the statute is plainly unreasonable, we must uphold his '00 interpretation." .Id. at 1147. '03 29/ See id. at 1149 n.37. 9 10 11 - 22 - TEN 3745 724 itself. "-22/ By contrast. Section 112 standards apply directly 729 to specific emission sources. Thus, the effects of a Section 7^112 standard prohibiting emissions of vinyl chloride (or any 732 other non-threshold pollutant) could not be mitigated by the 735 development of a state implementation plan that considers 736 feasibility. 737 73g in short, while Congress.may have intended 740 feasibility to be taken into account when Section 109 standards 741 are implemented by the individual states rather than when the 742 standards themselves are formulated by EPA, it provided no such 743 role for the states.under Section 112. instead, as indicated 744 in the legislative history,Congress intended that EPA could 746 consider feasibility at the standard-setting stage in regu- 746 lating non-threshold pollutants. rB ' 749 The Hercules decision, which held that EPA is not 750 required to consider economic and technological feasibility in 751 setting effluent standards for toxic pollutants under Section 752 307(a) of the Clean-Water Act, 33 U.S.C. S 1317(a) (1982), also 753 is clearly distinguishable from the present case. For one 756 ___________________ 756 724 30/ Union Electric Co. v. EPA. 427 U.S. 246, 266. Tech- 725 nological and economic factors can be taken into account in the 726 enforcement of the state implementation plan as well. See id. 728 at 266-269. 744 31/ See pp.____- _____ , infra. 9 10 11 - 23 - TEN 3746 34 th ing. Section 307 of the Clean Water Act specifically autho56 rizes EPA to publish "a proposed effluent standard (which may S^include a prohibit ion)." Section 112 of th Clean Air Act, by 5^contrast, makes no reference to the adoption of a prohibition 59 of emissions; indeed, as discussed below, Congress specifically 50 rejected the idea of requiring a prohibition of emissions under 51 Section 112. This significant difference in the language of 52 Section 307 and Section 112 is evidence that Congress did not 53 intend the phrase Sample margin of safety" to have the same 65 meaning in both cases. 66 67 Moreover, Section 307(a)(2) of the Clean Water Act 68 specifies six particular factors, none of which relates to 69 feasibility, that the Administrator must take into account in 71 dev loping effluent standards designed to provide an "ample 7^^nargin of safety" for toxic water pollutants.--^ Section 112 34 of the Clean Air Act, by contrast, is silent on this question, 35 leaving the term "ample margin of safety" completely undefined 36 and thus more fully committed to the discretion of the 38 38 73 32/ See Hercules. Inc, v. EPA, 598 F.2d at ill. The 76 factors are "the toxicity of the pollutant, its persistence, 77 degradability, the usual or potential presence of the affected 78 organisms in any waters, the importance of the affected 79 organisms and the nature and extent of the effect of the toxic 80 pollutant on such organisms, and the extent to which effective 81 control is being or may be achieved under other regulatory 82 authority." 33 U.S.C. S 1317(a)(2). 9 10 11 - 24 - TEN 3747 37 .Administrator. This is further evidence that the term "ample 38 margin of safety" should not be deem d to have th same meaning 3^^in the two different statutes.--^ 10 11 in short, the cases on which NRDC relies to support 12 its extreme reading of Section 112 simply are not in point. 13 The fact is that only one decision of this Court comes close to 14 interpreting the "ample margin of safety" provision of Section 15 112 itself. In that case. National Association of Demolition 16 Contractors. Inc, v. Costle. 565 F,2d 748 (D.C. Cir. 1977), the 17 court recognized that the "ample margin of safety" language of 18 Section 112 does not require EPA. to prohibit the demolition of 19 asb stos-containing buildings during sub-freezing temperatures, .20 even though the vetting process to control asbestos emissions 122 cannot be used safely at such temperatures. To achieve a ,2^^zero-risk/zero-emissions standard for asbestos, EPA would .have : 2 5 __________ 5 25 '89 3 3/ A third important distinction is that Section 307 of *92 the Clean Water Act merely authorizes the Administrator, in his '93 discretion, to establish effluent standards for toxic water *94 pollutants. In exercising this discretion, the Administrator '95 presumably could take economic and technological feasibility '96 into account. If he determined that it would be infeasible to '99 comply with an- effluent standard and that widespread industry 500 closure would result, the Administrator might exercise his dis- 501 cretion not to propose any such standard. By contrast. Section 502 112 of the Clean Air Act appears to require the Administrator 303 to promulgate at least one emission standard for any substance 304 which he retains on the list of hazardous air pollutants. 305 Thus, unless feasibility can be taken into account in setting 307 Section 112 standards, Section 112, unlike Section 307 of the 308 Clean Water Act, could result in widespread industry closure. 9 10 11 - 25 - TEN 3748 24 had to prohibit demolition entirely in sub-freezing tempera- 25 tures, a result which should have been required if NRDC is cor- 26 rect in asserting that feasibility cannot be considered under 2^Section 112. Yet the court approved EPA's decision to allow 28 demolition to continue, finding "no basis for concluding that 30 th Administrator, in providing a .limited exception to the 31 wetting requirement to protect worker safety, acted in anything 32 other than a reasonable fashion, consistent with the law." Id. 33 at 753 34 36 In sxom, the language of Section 112 does not 37 require EPA to establish zero-risk/zero-emissions standards 39 for non-threshold pollutants, and the decisions of the Supreme 40 Court and this Court do not hold otherwise. 42 ;42 :4A 48 49 150 i54 C. The Legislative History of Section 112 Is Consistent With a Regulatory Approach That Does Not Require the Prohibition of All Emissions in.the Case of Non-Threshold Pollutants. NRDC attempts to support its extreme reading of Sec- ;55 tion 112 by reference to three statements in the .legislative ;56 history of the Clean Air Act Amendments of 1970. Two of these 157 statements relate to the Senate bill, S.4358, and the third 158 .relates to Conference Committee action. 159 160 First, NRDC points to a sentence in the Senate Report 161 pertaining to Section 115 of S.4358, the provision which, after 9 10 11 - 26 - TEN 3749 63 modification in Conference Committee, became Section 112 of the i 64 Clean Air Act. Section 115, the sentence stat s, wouldrequir 6^EPA to publish a proposed prohibition of emissions of a 6^ pollutant found to be hazardous to the health of persons.--^ 69 NRDC next points to a statement by Senator Muskie, noting that 70 the prohibition requirement of Section 115 was included by the 71 Committee, because it "was presented with strong evidence that 72 any level of emissions of certain pollutants may produce 73 advers effects that cannot be tolerated."--^ These two state- 75 ments, according to NRDC, show that all emissions of 76 non-threshold pollutants are to be prohibited. In fact, they 77 show no such thing.__ 78 79 Perhaps the most significant point to be made about .73 thes statements is that they both were directed to a provision :d0in the Senate bill that would have explicitly required the 82 agency to prohibit emissions of air pollutants found to be haz- ;83 ardous to the health of persons. Section 112, by contrast, i84 does not require such a prohibition, but instead directs the 585 Administrator to set a standard which, in his judgment, pro- 186 vides an ample margin of safety. NRDC assumes that language 187 requiring a prohibition of emissions is the same as language 389 ___ 389 368 34/ 374 35/ 9 10 11 See Pet. Br. at 22;- 1970 Leg. Hist, at 420 Pet. Br. at 22; 1970 Leg. Hist, at 227. 27 TEN 3750 388 directing the exercise of judgment to establish an ample margin i 389 of safety. But the two approaches are different, and an 39fl explanation of how a prohibition might work cannot indiscrimi- 3^l nately be transmuted into an explanation of what was intended 392 by the phrase "ample margin of safety." 393 394 Moreover, the notion that "any level of emissions of 395 certain pollutants may produce adverse effects that cannot be 396 tolerated" does not mean that anv level of risk of such adverse 397 effects cannot be tolerated, even if the risk cannot be elimi- 398 nated entirely without closing down an entire industry. In t 399 fact, as will be shown below. Congress was. well aware that ** 901 small risks' of adverse health effects would necessarily have to 902 b tolerated and viewed such risks as being consistent with an 903 ample margin of safety in cases where it would be unnecessary 9 or impracticable to eliminate them. 905. 906 Finally, NRDC calis attention to a statement by Sena- 907 tor Muskie summarizing the final legislation fashioned by .the 908 Conference Committee.* In this statement. Senator Muskie _indi- 909 cated that the ample margin of safety standard "could mean, 910 effectively, that a plant would be required to close because of 911 the absence of control techniques. It could include an emis912 sions standard which allowed for no measurable emissions. ^ 913 913 912 36/ 913 added). ; See Pet. Br. at 6; 1970 Leg. Hist; at 133 (emphasis 9 - 28 - * TEN 3751 13 NRDC places principal reliance on this statement for the con14 elusion that .the ample margin of safety provision was intended l^^o require standards that completly prohibit emissions of 16 non-threshold pollutants, even if the standards result in the 17 closure of entire industries. 18 19 But there is a big difference between the possible 19 closure of a Plant and the closure of entire industries, a 20 result which would logically flow from strict application of 21 NRDC's interpretation.-^^ That Congress contemplated the clo23 sure of a plant does not demonstrate that it contemplated the 24 closure of entire industries as well. Indeed, perhaps the most 25 striking thing about the legislative history of the-1970 Amend26 ments is the absence of any discussion of broad-scale, 27 industry-wide closure resulting from the promulgation of stan2^lards for hazardous air pollutants. Surely Congress would not 29 have enacted a requirement that it expected would result in 30 such massive economic and social dislocation without discussing 31. the matter beyond a passing comment by one Senator* that "a 32 plant" could be required to close. 34 35 Furthermore, the fact that a particular Section 112 36 standard could allow for no measurable emissions does not mean 39 39 22 37/ See pp. ___ - ___ , supra. 9 10 11 - 29 - TEN 3752 337 that this was anticipated for all source categories of all haz- 939 ardous air pollutants. To the contrary, one of the substances 940 that Senator Muskie cited as an example of those that were 3^1ikely to be controlled under Section 112 was beryllium.^/ 942 Yet, the Senate Committee on Public Works had earlier explained 344 that beryllium emissions from steel plants might not have to be 345 prohibited under Section 115, since it would not be necessary 346 or practicable to do-so.-^^ 347 348 in short, NRDC's attempt to parlay three selected 349-statements from the legislative history into a clear expression 950 of congressional intent to require zero-risk/zero-emissions 351_jstandards for all non-threshold pollutants without regard to 352 the consequences simply does not work. If anything, these 353 statements indicate that, by moving irom a requirement that 3 emissions be prohibited to a direction that emission standards 355 be promulgated. Congress specifically rejected the 356 zero-risk/zero-emissions approach advocated by NRDC. Moreover, 357 when the focus is expanded beyond these three statements and 358 the legislative history is considered more broadly. Congress' 359 rejection of a zero-risk/zero-emissions requirement emerges 360 with even greater clarity.. 961 ___________________ 961 942 38/ . See 1970 Leg. Hist, at 133. 946 3J3/ See p. ___ , infra. 9 10 11 - 30 - TEN 3753 52 * i ^For on thing, even Section 115 of the Senate bill 52 (with its prohibition requirement) was not intended to require 5^pero-risk/zero- missions standards across-the-board. In di-s- 56 cussing Section 115, th.e Senate Committee on Public Works 57 stated its recognition that complete control of all hazardous 58 air pollutants, for example, "complete control of beryllium 59 .from steel plants, . . . may not be necessary or '0 practicable. "M/ Accordingly, the Committee explained, EPA 71 would have authority under Section 115 .not to require a prohi?2 bition of all emissions from all categories of sources.--^ 74 75 There is nothing to suggest that when Congress ulti- 76 mately substituted the "ample margin of safety" test for the 78 prohibition requirement, it intended to depart from this recog- s 79 nition that a complete prohibition of emissions at all sources 3^^ight not be necessary or practicable (and therefore not 31 required) under Section 112. If anything, the Conference Com- 33 mittee's switch from a prohibition of emissions to the 34 establishment of "ample margin of safety" standards suggests an 35 even greater concern with considerations of practicability. 36 Indeed, in presenting the Conference Committee Report on the 37 1970 Amendments' to the House, Congressman Staggers explained: 90 90 70 .40/ 1970 Leg. Hist. at 420 (emphasis added) 73 41/ See id. 9 10 11 - 31 - TEN 3754 >83 "The Conferees have been guided by two principles: 590 is feasible and to do what is reasonable."--^ to do what 59^ Subsequent congressional action confirms this under- 594 standing. For example, in 1976, the House Committee on Inter- 595 state and Foreign Commerce was considering amendments to the 596 Clean Air Act. In the course of its deliberations, the Commit- 397 tee paid particular attention to regulatory developments 399 involving vinyl chloride. Its report expressly recognized that }o0 vinyl chloride was carcinogenic and that ho safe level of .'01 exposure could be defined.^ Yet the Committee did not sug- 50 3 gest that a zero-emissions standard..should be adopted under 504 Section 112. Instead, it urged EPA to promulgate without delay 505 the standard that had been proposed in December 1975,a 306 standard based upon EPA's assessment of the best available con)0^Ptrol technology rather than on a zero-risk/zero-emissions 308 requirement.--^ 309 310 Similarly, the deliberations on the Clean Air Act 311 Amendments of 1977 demonstrate Congress' clear understanding 314 ________ 314 390 42/ 301 43/ 302 (1976) 305 44/ . 3Q8 45/ 9 10 11 Id. at 111: See H.R. Rep. 94-1175, 94th Cong., 2d Sess. at 23-24 See id. See pp. __ - supra. - 32 - TEN 3755 12 that, if interpreted to mean zero risk, the ^margin of safety 14 concept" would be "an illusion. Congress also was aware l^^that it would be necessary "to get down to zero pollution in 19 order to eliminate all health effects."--^ Yet, it rejected 23 .the proposition that ambient air quality standards must there- 2-3 fore be set at zero for non-threshold pollutants in order to 25 achieve a "margin of safety," since it recognized that such a 26 "no-risk philosophy ignores all economic and social conse- 27 quences and is impract ical. 29 n * * it it 32. 3-4- - in short, the statutory language and legislative 35 history indicate that Congress did not intend to equate an 36 "ample margin of safety" with'.the absence of all risk or to 3^p-eguire a zero-risk/zero-emissions standard for all 38 non-threshold pollutants regardless of the consequences. While 40 Congress did express an overriding concern for public health 41 protection, it did not intend to require absolute safety; 44 44 14 46/ See A Legislative History of the Clean Air Act 15 Amendments of 1977. Comm. Print No. 16, Senate Comm, on the 16 Environment and Public Works, 95th Cong., 2d Sess. at 2577-79 17 (1978) (House Report) (hereafter referred to as "1977 Leg. :18 Hist. " ) . 120 42/ See id. at 1030-31 (remarks of Senator Muskie) . )28 48/ Id. at 2594 (House Report). 33 - TEN 3756 :42 rathjer, it viewed some level of residual risk as being compati- i ;44 ble with the existenc of an "ample margin of safety," as long :4^^as the residual risk was not significant.--^ Moreover, Con- 361 gress contemplated that, so long as it did not substantially 162 interfere with the primary purpose of protecting the public ;63 health, EPA could consider what would be feasible and gractica'65 ble in setting emission standards under Section 112. 50/ ;83 )8 3 345 49/ Thus, the Senate Report on S.4358 (from which the j46 Clean Air Act Amendments of 1970 were derived) states that the )47 statutory scheme for regulating hazardous air pollutants was '48 intend d to ensure control of "stationary source emissions that )49 pose any significant danger to public health or welfare." 1970 50 Leg. Hist, .at 420 (emphasis added). Similarly, in amending the 52' Clean Air Act in 1977, Congress approved both the opinion of 53 the en banc court in Ethyl Coro, v. EPA. 541 F.2d 1, 13, 30, 31 54 & n.62 (D.C. Cir.), cert. denied. 426 U.S. 941 (1976) (holding 55 that the existence of ^significant risk" is an appropriate test )56 for regulating under the Clean Air Act) and the dissenting iST^opinion of the t;hree-judge panel in the Ethyl case (equating. )5^Bthe phrase' ^endanger, the public health" with presenting a "sig- )5^nif icant-. risk of harm"). See 1977 Leg. Hist, at 2511-12, 2516 '60 (House Report). ;65 50/ Cf. Union Electric Co. v. EPA, 427 U.S. 24 61 266, 263 367 (1976) (noting that the Clean Air A.ct Amendments of 1970 fallow 368 claims of technological and economic feasibility to be raised 369 in situations where consideration of such claims will not sub- 370 stantially interfere with the primary congressional purpose of ;71 prompt attainment of the national air quality standards"). See 371 generally pp. 10-33, supra. In this regard, it also is impor- 372 tant to bear in mind that one of the stated purposes of the 373 Clean Air Act is Ito protect and enhance the quality of the 374 Nation's air resources so as to promote the public health and 375 welfare and the productive capacity of its population." Sec- 376 tion 101(b)(1) of the Act, 42 U.S.C. S 7401(b)(1) (1982) 377 (emphasis added). If Section 112 were interpreted to preclude 378 any consideration -of feasibility and to require the' closure of 379 entire industries which emit non-threshold pollutants, the 380 quality of the nation's air certainly would not be enhanced in 381 a way that promotes the productive capacity of its population. 4 TEN 3757 ;34 Finally, Congress committed the determination of what ;85 emission level is consistent with an "ample margin of safety" ;8^to the judgment of the Administrator, thereby authorizing him igTto exercise his discretion by choosing a numerical limit within 388 a "zone of reasonableness. In determining precisely where )93 within this zone a Section 112 emission limitation should be )94 set to provide an "ample margin of safety," the Administrator )S6jis free to consider technological and economic feasibili^, as j97 long as the standard that results from this process is suffi- 398 cient to protect the public health against significant risks of 399 mortality or serious illness*. .01 .01 .05 D. Even if EPA's Application of Section 112 Is Not the .06 Only Reasonable Interpretation of That Provision, It .07 Clearly Is a Reasonable and Permissible .08 Interpretation Which Should .Be Respected by the -0, Court.___________________________________________________ .1 .14 in the present case, NRDC has offered an interpreta- .15 tion of Section 112 that would require zero-emissions standards 116 and preclude any consideration of feasibility. NRDC claims .17 that its interpretation is compelled by the statutory ianguage 118 and legislative history of the Act. However, as demonstrated 120 above, a careful analysis of the statutory text and legislative 122 122 388 51/ Cf. Hercules. Inc, v. EPA. 598 F.2d at 106-107 ("in 390 reviewing a numerical standard, we must ask whether the 391 ag ncy's numbers are within a 'zone of reasonableness,' not 392 whether the numbers are precisely right."). 9 10 11 - 35 - TEN 3758 21 history belies this claim and indicates that a contrary-reading 22 is both more reasonable and more consistent with congressional 2^pntent. 24 25 Taken most favorably to NRDC, the statutory language 26 would have to be viewed as silent or ambiguous, since the term 27 "ample margin of safety" is not defined in the Act and, as dis28 cussed above, has no plain meaning.Similarly, the most 29 that could be said of the legislative history to support NRDC's 31 position is that it evidences no clear expression of congres- 32 sional intent that feasibility must be considered in setting 33 Section 112^ standards for non-threshold pollutants. There 35 surely is no. "clearly discernible iegislative intent"--^ sup- 37 porting NRDC's zero-risk/zero-emissions reading of the statute. 38 Rather, as the Supreme Court recently found in another context: 3^^The ambiguous legislative history upon which [NRDC relies] 40 . . . 'falls' far short of showing that the (agency's] . . . 42 interpretation of the Act is unreasonable."--^ 45 45 45 45 45 29 52/ See pp, supra. 36 53/ See General Motors Corp. v. Ruckelshaus, 742 F.2d 37 1561, 1567 (D.C. Cir. 1984). 42 54/ See Pattern Makers League of North America, AFL-CIO 43 v. NLRB. __ U.S. __ , ___, ___ U.S.L.W. __ , ___ (Sup. Ct. June 27, 44 1985). 9 10 11 - 36 - TEN 3759 46 ' " In these circumstances, as the Supreme Court and this 47 Court have recently and repeatedly made clear, courts should 4^^efer to EPA's understanding of the statute, as long as it is a 49 "sufficiently rational" and- "permissible" construction of the 50 Act.--^ This is particularly true in light of the "technical 56 and complex" regulatory scheme of the Clean Air Act,--^ the 59 "inherent imprecision" of the term "ample margin of safety,"--^ 65 and the fact that the question of what constitutes an "ample 66 margin of safety" is committed to the judgment of the Adminis57 trator^ 73 75 As shown above, EPA's interpretation of Section 112, 76 which rejects a zero-risJc/zero-emissions requirement and pro76 vides a limited role for consideration of feasibility, is per7 ectly consistent with the statutory language and .legislative 30 __________________ 30 50 55/ See Chemical Manufacturers Ass'n v. Natural Resources 52 Defense Council, Inc.. , U.S. , , S. Ct. , (1985); 53 Chevron U.S.A. Inc, v. Natural Resources Defense Council. Inc.. 54 __ U.S. __ , ___, ___ S. Ct. __ (1984); General Motors Coro, v, 55 Ruckelshaus, 742 F.2d at 1566-67. 57 56/ See Chevron U.S.A. Inc, v. Natural Resources Defense 58 Counci 1. Inc. . __ (J.S. at __ , __ S. Ct. __ , _ 61 52/ Cf. Association of Data Processing Service ' 63 Organizations. Inc, v. Board of Governors of the Federal 63 Reserve System, 745 F.2d 677, 696 (D.C. Cir. 1984). 6758/ Cf. Lead Industries Ass'n v. EPA, 647 F.2d at 1147 68 ("Deference to the Administrator's interpretation is particu- 69 larly appropriate in construing a statute that invests him with 70 a considerable amount of discretion."); Kennecott Copper Corp., 71 Nevada Mines Div. v. Costle, 572 F.2d 1349, 1353 (9th Cir. 72 1978). 9 37 - TEN 3760 79 history of the Clean Air Act. 30 Court. It should be respected by this 34^ Conclusion 35 36 For the reasons discussed above, NRDC's petition fo 37 review should be dismissed. 38 91 _ 93 94 95 96 97 98 99 0001 Of Counsel: 02 03 David F. Zoll, Esq. 04 Fredric P. Andes, Esq. 05 CHEMICAL MANUFACTURERS 04 ASSOCIATION 019 2501 M Street, N.W. 08 Washington, D.C. 20037 09 10 11 12 13 14. 15 16 17 .18 .19 Of Counsel: .20 .21 Stark Ritchie, Esq. :22 Martha Beauchamp, Esq. :23 Arnold Block, Esq. :24 AMERICAN PETROLEUM :25 INSTITUTE !26 1220 L Street, N.W. :27 Washington, D.C. 20005 28. : 29 13^p^ugust 19, 198 5 131 131 9 '10 Respectfully submitted, Neil Jay King WILMER, CUTLER & PICKERING 1666 K Street, N.W. Washington, D.C. 20006 (202) 872-6061 Attorneys for the Chemical Manufacturers Association Arthur F. Sampson, III KIRKLAND & ELLIS 655 15th Street, N.W. Washington, D.C. 20005 (202) 879-5066 Attorneys for the American Petroleum Institute TEN 3761