1. 1 Reserve Mining Co. v EPA Facts: asbestos-containing mining by- products discharged into lake EPA abatement action District court enjoined discharges; would close facility Structure of appellate court’s opinion 1. 1.Is there a risk to public health? 2. 2.Is the risk legally cognizable? 3. 3.Remedy

2. 2 Reserve Mining 1. Is there a risk to public health? Evidence —   Tissue study of Duluth residents   Not conclusive; but indicates no emergency   Animal studies re penetration of gastrointestinal mucosa   Conflicting; some support for impact   Increased rate of gastrointestinal cancer from occupational exposure   Ingestion impact is tenable hypothesis Level of exposure hazardous?   District court: comparable exposure to what caused occupational cancers   Court of appeal: dubious accuracy

3. 3 Reserve Mining Court’s Conclusions Regarding Risk Frontiers of scientific knowledge No proof of actual harm Court faced with considering probabilities and consequences Probability of harm is not more likely than not “Reasonable medical concern” “Some health risk” Such contaminant “should be removed”

4. 4 Reserve Mining 2. Is the risk legally cognizable? The statute Authorizes action by us to abate discharge violating clean water act water quality standards and endanger health or welfare Held: “endanger” used in precautionary or preventative sense; Potential as well as actual harm included Court’s authority: issue orders as public interest & equities require

5. 5 Reserve Mining 3. Remedy Trial court: ordered immediate closure Court of appeal: Low probabilities/ serious consequences Unpredictable health effects; predictable social & economic consequences Effect of reserve’s offer to halt pollution Conclusion: allow reasonable time to stop discharge

6. 6 Notes   1. How justify requiring expenditure of millions in Reserve Mining?   Preponderance of evidence test not met 3. Ethyl Corp (DC Cir 1976): Upholding lead additive prohibition; “endanger” standard Awaiting certainty will not allow preventative regulation Rigorous step by step proof of causation not required where statute is precautionary

7. Government Regulation of Air Pollution: Types of Regulatory Systems Harm-based v technology-based Harm-based: Determine level of pollutant in “ambient” environment needed to protect public Work backwards to determine emission limits for sources to achieve that level Can be “technology-forcing”

8. Types of Regulatory Systems, cont’d Technology-based: Require all sources to install equipment meeting specified standards Standards generally based on available technology May require additional regulation to achieve desired environmental quality Avoids (at least initially) disputes about feasibility and “how clean is clean enough”

9. Types of Rules Within Regulatory Systems 1. 1. “Command and control” rules Limiting amount of emissions, e.g. ppm or mass Specifying required equipment (e.g. gasoline vapor recovery), or Limiting health risk caused by a source 2. 2. Market program rules, “cap & trade”: Cap total emissions from all sources Issue emissions allocations, and Allow trading of allocations 3. 3. Permit rules

10. Clean Air Act (CAA) Overview National ambient air quality standards (NAAQS) Nonattainment areas State implementation plans (SIPS) Measures to attain NAAQS by deadlines Permits etc National standards for hazardous air pollutants (NESHAPS) Enforcement & citizens suits Mobile source rules (federal & CA)

11. The CAA: Helpful Distinctions Stationary v. Mobile sources New v. Existing sources Major v. Non major sources “Criteria” v. Hazardous pollutants Attainment v. Nonattainment areas

12. “Criteria Pollutants” for Which NAAQS Have Been Established Carbon monoxide Nitrogen dioxide Ozone (from hydrocarbons and nitrogen oxides) Particulate matter Sulfur dioxide Lead

13. 13 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.

14. 14 LISTING CRITERIA POLLUTANTS: NRDC v. Train Steps: 1. 1.List if adverse effect and numerous/diverse sources 2. 2.Within 12 months, issue criteria doc, info on control techniques & cost [§108], and propose NAAQS [§109] 3. 3.Promulgate final NAAQS within 6 months 4. 4.States have set time to submit sips & attain Initial list to published within 30 days of December 1970. §108(a)(1)

15. 15 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”

16. 16 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.

17. 17 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.

18. 18 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

19. 19 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

20. 20 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

21. 21 Lead industries Issues EPA acted within scope of statutory authority? Evidence adduced through rulemaking supported NAAQS? Procedural flaws require reconsideration?

22. 22 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

23. 23 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

24. 24 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).

25. 25 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

26. 26 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 Variability: Preschool children and pregnant women had more lead in blood per air level

27. 27 Lead Industries Facts: Proposed Standards Proposed standard: 1.5 ug pb/m 3 monthly average Complicating factors: 1. 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. 2. Variety of adverse health effects EPA response: prevent EP elevation in children; indicates impairment cellular functions

28. 28 Lead Industries Facts: Proposed Standards, Cont’d 3. 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. 4. Amount of blood lead from non-air sources: 12 ug pb/dl Thus max from air could be 3

29. 29 Lead Industries Facts: Proposed Standards, Cont’d 5. 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

30. 30 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)

31. 31 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

32. 32 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”

33. 33 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.

34. 34 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

35. 35 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

36. 36 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