J. Skelly Wright

“ One of these costs is the toll that these alterations may exact on the environment itself and, in turn, the dangers that this may pose for the public health and welfare. Unfortunately, man's ability to alter the environment often far outstrips his ability to foresee with any degree of certainty what untoward effects these changes may bring. The issues presented by these cases illustrate this sad fact.
Lead's environmental significance is a consequence of both its abundance and its utility. The relative abundance of lead in the earth's crust makes it unique among the toxic heavy metals. ”

“ Secondary air quality standards "specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." ”

“ To be sure, a different question may be presented if it can be shown that an agency decisionmaker has exhibited the type of single-minded commitment to a particular position that makes him or her totally incapable of giving fair consideration to the issues that are presented for decision. This is not, however, such a case. Nothing in the record suggests that Assistant Administrator Hawkins was incapable of considering the issues raised by the lead standards proceedings fairly. ”

“ We find that the Administrator's decision not to exclude insoluble particles from the lead standards was neither arbitrary nor capricious. The only information in the record on the issue of insolubility that petitioners are able to point to is a two-page discussion in St. Joe's comments on the proposed standards, [104] and even this discussion does not suggest that lead emissions from smelters or other industrial sources are insoluble. The Criteria Document merely states that the exposure of lead miners may "depend to some extent on the solubility of the lead from the ores." ”

“ LIA argues that the Administrator should have considered whether the welfare effects of lead exposure would permit him to set a secondary air quality standard higher than the primary standard. Pointing out that the primary standards are supposed to protect public health and that they are based on a 90-day averaging period, LIA argues that it follows that primary standards need be met only in inhabited areas, whereas the secondary standards must also be met in uninhabited areas. ”

“ EPA, supra note 29, 541 F.2d at 24-25, we pointed out: Questions involving the environment are particularly prone to uncertainty. Technological man has altered his world in ways never before experienced or anticipated. The health effects of such alterations are often unknown, sometimes unknowable. While a concerned Congress has passed legislation providing for protection of the public health against gross environmental modifications, the regulators entrusted with the enforcement of such laws have not thereby been endowed with a prescience that removes all doubt from their decisionmaking. ”

“ The Criteria Document concluded that EP elevation, which begins in children at blood levels of 15-20 ug Pb/dl, is one of the more significant effects of low level lead exposure because it indicates that lead has already begun to affect basic biological functions in the body. We have already examined in some detail the findings that led the Criteria Document to the conclusion that EP elevation is an indication of a physiological impairment which affects human health. ”

“ EPA, supra, 541 F.2d at 36. As we explained in Ethyl Corp. Click for Enhanced Coverage Linking Searchesv. EPA :
(After) our careful study of the record, we must take a step back from the agency's decision. We must look at the decision not as the chemist, biologist or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality. "Although (our) inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one." ”

“ According to the 1970 census, there are approximately 20 million children under the age of 5 years in the United States, 12 million of them in urban areas and 5 million in inner cities where lead exposure may be especially high. The Administrator concluded that in order to provide an adequate margin of safety, and to protect special high risk sub-groups, the standards should aim at keeping 99.5% of the target population below the maximum safe individual blood lead level of 30 ug Pb/dl. ”

“ LIA contends that the only consistency in his approach was that in each instance he adopted the method that would produce a ratio supporting the 1.5 ug Pb/m 3 standard.↑ Thus there is little merit to LIA's complaint about the fact that the Administrator's calculations were based on studies which included ratios for adults as well as children. If anything, including the ratios for adults probably resulted in lower numbers since, according to both the Criteria Document and expert witnesses, children have higher air lead/blood lead ratios than do adults. ”

“ The Criteria Document also examined the effects of lead exposure on the central nervous system. Among the most deleterious effects of lead poisoning are those associated with severe central nervous system [p1140] damage at high exposure levels. The Criteria Document noted that neurological and behavioral deficits have long been known to be among the more serious effects of lead exposure, but it pointed out that there is disagreement about whether these effects are reversible, and about what exposure levels are necessary to produce specific deleterious effects. ”

“ The multiplicity of sources of lead intake increases the difficulty of controlling human lead exposure. Much of the protective activity in this area has focused on limiting the amount of lead in the ambient air, the most controllable source of lead exposure. In this country, by far the largest source of lead emissions accounting for 88 percent of total lead emissions according to EPA estimates is the exhaust of motor vehicles powered by gasoline containing lead additives. ”

“ Joe's view, the Administrator must consider the economic impact of the proposed standard on industry and the technological feasibility of compliance by emission sources in determining the appropriate allowance for a margin of safety. [34] St. Joe argues that the Administrator abused his discretion by refusing to consider these factors in determining the appropriate margin of safety for the lead standards, and maintains that the lead air quality standards will have a disastrous economic impact on industrial sources of lead emissions. ”

“ Having determined that we must uphold the Administrator's decisions concerning the health effects that are the basis for the lead standards, we turn to petitioners' other challenges to the Administrator's analysis. ”

“ They could simply refrain from presenting their constitutional objections to the Agency's action until after the Agency had announced its final decision, then raise the issue before the reviewing court and obtain a reversal of the Agency's decision, and thereby compel the Agency to institute new proceedings. It is difficult to believe that a Congress that has expressed concern about the need for expeditious attainment of the goals of the Clean Air Act [130] would give parties affected by regulations issued under the Act such a potent weapon for delaying Agency action. ”

“ The more severe neurological effects of high level lead exposure are the clinical syndrome of lead encephalopathy. Early symptoms include dullness, restlessness, irritability, headaches, muscular tremor, hallucinations, and loss of memory. These symptoms rapidly progress (sometimes within 48 hours) to delirium, mania, convulsions, paralysis, coma, and death. Id. at 11-15, JA 1237. The Criteria Document expressed particular concern that the onset of these serious symptoms can be quite abrupt, even in the absence of prior overt or clinical symptoms of disease. ”

“ This court has previously acknowledged the role of the margin of safety requirement. In Environmental Defense Fund v. EPA, 194 U.S. App. D.C. 143, 598 F.2d 62, 81 (D.C.Cir.1978) , we pointed out that " (i) f administrative responsibility to protect against unknown dangers presents a difficult task, indeed, a veritable paradox calling as it does for knowledge of that which is unknown then, the term "margin of safety' is Congress's directive that means be found to carry out the task and to reconcile the paradox." ”

“ Moreover, it is significant that Congress has recently acknowledged that more often than not the "margins of safety" that are incorporated into air quality standards turn out to be very modest or nonexistent, as new information reveals adverse health effects at pollution levels once thought to be harmless. See H.R.Rep.No.95-294, supra, at 103-117. ”

“ Third, do alleged procedural shortcomings in the lead standards rulemaking warrant a remand of the regulations to EPA?
V. STATUTORY AUTHORITY The petitioners' first claim is that the Administrator exceeded his authority under the statute by promulgating a primary air quality standard for lead which is more stringent than is necessary to protect the public health because it is designed to protect the public against "sub-clinical" effects which are not harmful to health. ”

“ There are three major sources of the body's lead burden. In most people the largest source is diet. CD 7-9, JA 1179. [3] Another source, particularly in children, is the habit of placing hands, objects, and materials in the mouth. [4] The third major source is the ambient air; airborne lead is deposited in the respiratory tract as a person breathes lead-contaminated air and is subsequently absorbed into the bloodstream. CD 1-5, JA 1108. Once the lead is in the bloodstream its source is immaterial; total lead intake is the sum of the intake from all these sources. ”

“ The Supreme Court's decision in the Vermont Yankee case makes it absolutely clear that courts must be extremely reticent about going beyond the procedures established by Congress and requiring agencies [p1170] to provide additional procedures in rulemaking proceedings. Judicial restraint in this matter is all the more important where, as here, Congress considered and deliberately decided against a particular procedure. Section 307 (d) (5) , 42 U.S.C. § 7607 (d) (5) , which governs the procedure at public hearings, was added by the 1977 Amendments to the Act. ”

“ Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. ”

“ Some of these studies suggested that low level lead exposure may cause central nervous system deficits, resulting in impaired concept formation and altered behavioral profiles, may interfere with the normal intellectual development of lead-exposed children, and may cause subtle neurological damage. ”