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Lead Indus. Ass'n v. EPA

Citation: 10 ELR 20643
No. Nos. 78-2201, -2220, 647 F.2d 1130/14 ERC 1906/(D.C. Cir., 06/27/1980)

The court upholds the Environmental Protection Agency's (EPA's) national ambient air quality standards for lead, concluding both that the Administrator acted within the scope of his statutory authority and that the evidence adduced at the rule-making proceedings supported the final determinations. Reviewing first the Administrator's authority under § 109 of the Clean Air Act, the court finds no merit to petitioner's claim that economic and technical feasibility must be considered in promulgating the standards. Second, Congress clearly left to the Administrator's discretion a determination of the threshold for "adverse health effects" and the "margin of safety." Turning next to petitioner's challenges to the evidentiary support for the Administrator's decisions on the health basis for the lead standards, the court finds that there is adequate support in the record for the Administrator's setting of the primary standard, based in part on his judgment as to the maximum safe individual blood lead level and an appropriate margin of safety. The court further rejects petitioner's claims that EPA's findings regarding air lead/blood level ratios, its change of the method for calculating the primary standard, and its decision not to exempt insoluble and non-respirable particles from the standard were arbitrary, capricious, and based on certain prejudgments. Additionally, the court finds petitioner's procedural objections unavailing. Regarding petitioner's claim that it should have had an opportunity to cross-examine witnesses, the court finds that not only did EPA's hearing procedures comply with § 307(d)(5) of the Clean Air Act but that petitioner participated at each stage of the rule-making process and had a meaningful opportunity to examine witnesses. The court also finds unwarranted the allegations that Assistant Administrator Hawkins should have been disqualified from participation because of prejudgment and conflict of interest. The court also finds that petitioner's objection to the setting of the secondary standard at the same level as the primary standard is precluded for failure to raise it in a timely fashion.Finally, the court declines to add to the administrative record a group of documents obtained from EPA under the Freedom of Information Act and after the record had closed, with the exception of certain documents regarding Hawkins' participation.

Counsel for Petitioners
Edwin H. Seeger, Gary M. Welsh, Richard T. Witt
Prather, Seeger, Doolittle & Farmer
1101 16th St. NW, Washington DC 20036
(202) 296-0500

Robert A. Emmett
Reed, Smith, Shaw & McClay
1150 Connecticut Ave. NW, Washington DC 20036
(202) 457-6144

Counsel for Respondent
Michael P. Carlton, Sanford Sagalkin; James W. Moorman, Ass't Attorney General; Angus MacBeth
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5286

James N. Cahan; Joan Z. Bernstein, General Counsel; Jeffrey O. Cerar
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Amicus Curiae Natural Resources Defense Council, Inc.
David Schoenbrod
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Counsel for Amicus Curiae California Air Resources Board
Kathleen W. Mikkelson, Deputy Attorney General
Department of Justice
800 Tishman Bldg., 3580 Wilshire Blvd., Los Angeles CA 90010
(213) 736-2304

Before WRIGHT, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.