D.C. Circuit Upholds NAAQS for Lead and Ozone, Defers to EPA's Rulemaking Discretion Under Air Act

The cornerstone of the Clean Air Act Amendments of 1970 is the requirement that the Environmental Protection Agency (EPA) set geographically uniform national ambient air quality standards (NAAQS). Congress' goal of assuring healthy air quality across the nation is embodied in its commitment to achieve attainment of the NAAQS by prescribed dates. While the Clean Air Act Amendments of 1977 postponed the deadlines for achievement of the NAAQS they retained the basic strategy and made several revisions which augment EPA's responsibility and authority concerning review and revision of the ambient standards. Pursuant to the 1977 amendments EPA has promulgated new standards for lead, revised standards for ozone, and has proposed to adjust the short-term primary standard for carbon monoxide.¹ In addition, new standards are under development for carbon monoxide, short-term nitrogen oxides, sulfur oxides, and particulates.²

The new and revised standards for lead and ozone were promptly challenged in the District of Columbia Circuit Court of Appeals. Industry petitioners argued in both Lead Industries Association, Inc. v. Environmental Protection Agency (Lead)³ and American Petroleum Institute v. Costle (Ozone)⁴ that the Administrator of EPA, due to his failure to consider economic costs of compliance, had set overly stringent standards, and that the evidence in the record did not support the Administrator's conclusions concerning the health effects of the regulated substances. Environmental groups countered that the standard provided less than the required degree of health protection. Both environmental and industry petitioners raised numerous procedural objections to the lead and ozone rulemakings. Yet the court overwhelmingly rejected all substantive and procedural challenges to both the lead and ozone standards in two decisions which appear to firmly settle the broad scope of EPA's authority in setting NAAQS.

However, the statutory basis for this authority faces an uncertain future. As Congress begins the process of reviewing the Clean Air Act, the Reagan Administration has proposed to relax the requirements for listing criteria pollutants and to repeal the "adequate margin of safety" provision. Such changes could substantially alter the health based nature of the NAAQS.

NAAQS

The provisions for establishing the NAAQS are the key to the accomplishment of the Act's objectives that air pollution not endanger the public health or welfare. Under § 108 the Administrator of EPA is charged with the responsibility for publishing and regularly revising a list of air pollutants "which may reasonably be anticipated to endanger public health or welfare."⁵ Once a pollutant has been included on the list EPA must issue an air quality criteria document for the pollutant, which discusses the latest scientific knowledge concerning the associated health and environmental damages.⁶ Simultaneously with the issuance of the criteria document, EPA must publish proposed national primary and secondary ambient air quality standards expressed in terms of numerical levels of pollutant concentrations.⁷ The health-based primary standards must not only protect the most sensitive individuals in the population from adverse health effects but must also provide an "adequate margin of safety."⁸ Secondary standards are intended to protect public welfare rather than health and are thus set at or below the primary standard.⁹ The proposed standards are then subjected the public comment in a rulemaking proceeding.¹⁰ Within 90 days of publication of the proposed standards the Administrator must promulgate final standards.¹¹ Once issued, responsibility for implementation and enforcement of the standards shifts to the states. Each state is required to develop a comprehensive state implementation plan (SIP) for achieving and maintaining the standards.¹²

The 1977 amendments provided that before 1981, and at five-year intervals thereafter, EPA must review the criteria document and the standards promulgated for each pollutant and revise them as appropriate under §§ 108 and 109(b).¹³ The Administrator must also appoint a seven-member independent scientific review committee, the Clean Air Scientific Advisory Committee, to review the criteria and standards.¹⁴

After persistent pressure by public interest groups culminated in a court order requiring EPA to list lead as a [11 ELR 10198] criteria pollutant under § 108(a)(2) of the Act,¹⁵ EPA released its air quality criteria document for lead in December 1977.¹⁶ The document identified a variety of effects of lead exposure on human health, particularly on the blood-forming system, the nervous system, and the renal system. It concluded that a blood lead threshold level for anemia, often the earliest clinical manifestation of lead exposure, is about 40 micrograms lead per deciliter of blood (ug Pb/dl) for children and 50 ug Pb/dl for adults. More subtle "subclinical" effects¹⁷ identified in the criteria document include lead-related elevation of erythrocyte protopophyrin¹⁸ (EP elevation), which indicates impairment of oxygen transport and results in adverse impacts on human health. The threshold level for EP elevation in children and women is 15 to 20 ug Pb/dl, and 25 to 30 ug Pb/dl in adult males. While it noted that the evidence concerning these thresholds is unsettled and somewhat controversial, the criteria document identified a number of deleterious neurological and behavioral effects, which result, particularly in children, from lead exposure. Finally, the document discussed the relationship between air lead exposure and blood lead levels (the air lead/blood lead ratio) and concluded that blood lead levels increase by between one and two ug Pb/dl of blood for every 1 ug Pb/m³ of air.¹⁹

On this basis, EPA proposed primary and secondary NAAQS for lead of 1.5 ug Pb/M³ of air on a monthly average.²⁰ The standards were designed to prevent the occurrence of EP elevation in children between the ages of one and five years, the most sensitive group within the population, based on an assumed mean population blood lead level of 15 ug Pb/dl and a contribution of 12 ug Pb/dl from non-air sources and 3 ug Pb/dl from the ambient air.²¹ After a public comment period, the Administrator promulgated the final standards for lead. Although retaining the same final standards, the Administrator changed the method for calculating the standards and shifted the monthly averaging period to a quarterly basis to cut compliance and agency costs.²²

EPA first established primary and secondary standards for photochemical oxidants in 1971.²³ Photochemical oxidants are the primary constituent of photochemical smog, and along with carbon monoxide are the most serious air pollution problem in most U.S. cities.²⁴ Because the predominant chemical constituent of these oxides is ozone, a highly reactive form of oxygen, EPA focused its monitoring and health effect studies on ozone. The health effects associated with ozone exposure include irritation and constriction of the bronchial and respiratory systems. Evidence gathered by the agency during the post-1977 revision of the standard indicated that ozone levels of less than 0.15 parts per million (ppm) produce reversible effects, while effects occurring at levels of greater than 0.25 ppm may cause permanent damage, including heart attacks. Non-health-related effects of ozone include damage to vegetation, as well as acceleration of the aging of many materials, leading to rubber cracking, dye fading, and paint erosion.

In the first NAAQS revision under the 1977 Amendments,²⁵ EPA relaxed the original primary and secondary ozone standards of 0.08 ppm that had been set in April 1971. After developing a revised criteria document,²⁶ EPA first proposed a primary standard for ozone of 0.10 ppm and a secondary standard of 0.08 ppm.²⁷ However, after numerous public hearings EPA set the final primary and secondary standards at 0.12 ppm.²⁸ The Administrator determined that adverse health effects occur in a range of 0.15 to 0.25 ppm, and concluded that 0.12 ppm provides an adequate margin of safety. In addition, based on recent vegetation damage studies, he concluded that a 0.12 ppm secondary standard would protect the public welfare adequately.

Challenges to the NAAQS

Lead

Despite several years of rulemaking, including three major drafts of the lead criteria document and extensive public comments on EPA's lead standards, controversy over the final ozone standards continue beyond their promulgation. After EPA denied a petition for reconsideration of the standards, representatives of the lead industry petitioned the District of Columbia Circuit Court of Appeals for review. In Lead Industries Association, [11 ELR 10199] Inc. v. EPA,²⁹ the petitioners' principal argument was that the Administrator had exceeded his authority by setting such a stringent primary standard. They argued that the statutory provision requiring that an "adequate margin of safety" be structured into all standards limited EPA to regulating clearly harmful effects and required it to consider economic costs of the standard.

The court, however, found nothing in the language of the Act or its legislative history to support these claims. First, the court reasoned that unlike § 111 of the Act which directs the Administrator to consider economic costs in establishing standards of performance for new stationary sources of air pollution, § 109(b) "speaks only of protecting the public health and welfare"³⁰ and imposes requirements of a "technology forcing" character. Further, the court quoted a senate report on the 1970 Amendments explaining that the Act's "adequate margin of safety" requirement is "essential to any health-related environmental standards"³¹ to protect against unidentified hazards. There is thus no room for economic considerations in the process of setting the standards.³²

The petitioners had further argued that EPA, by designing the primary lead standard to protect children from "subclinical" effects of lead exposure which have not been shown to be harmful to health, ignored Congress' intent that EPA do no more than prevent an occurrence of clearly adverse health effects. To the contrary, EPA contended, the precautionary nature of the statutory mandate to protect the public health, the broad discretion Congress delegated to the Administrator to decide what effects to protect against, and the uncertainty inherent in determining the health effects of air pollution require the Administrator to err on the side of caution. The Administrator's duty to set standards which ensure "an absence of adverse effects" in sensitive individuals means all observable effects.

The court agreed with the Administrator, finding that petitioners failed to provide any statutory support for their claim that the standards must protect only against clearly harmful effects. In directing EPA to allow an adequate margin of safety, Congress recognized the need to act in the face of uncertain scientific knowledge and to protect the public against unknown dangers. That a particular effect may not demonstrate the existence of "disease" in a given individual does not mean that EPA lacks the administrative discretion to label such an effect as "adverse," assuming that determination to be adequately supported in the evidentiary record. It was to that issue that the court turned next.

The industry petitioners also challenged the factual support behind EPA's analysis of the health effects of lead. They first argued that there was no evidence in the record to indicate that children suffer adverse health effects at an EP elevation of 30 ug PB/dl, although this was apparently a variant of their claim that since EP elevation is a mere "subclinical effect" it does not constitute an adverse health effect under § 109. In their view, EPA also failed to show a basis for its findings that anemia occurs in children at 40 ug PB/dl, and that central nervous system deficits occur in children with blood lead levels of 50 ug PB/dl.

In the court's view, the criteria document, which underwent rigorous scientific and public review, provided adequate evidentiary support for the Administrator's conclusions about the health effects of lead exposure. Under § 307(d) of the Act, the court would not substitute its judgment where there is evidence in the record to support the Administrator's judgment. It took pains to emphasize its "restricted role" as a reviewing court, particularly in light of the discretion given EPA by Congress. With respect to the record support for the agency's factual determinations, it observed that

[t]o be sure, the Administrator's conclusions were not unchallenged; both [petitioner] LIA and the Administrator are able to point to an impressive array of experts supporting each of their respective positions. However, disagreement among the experts is inevitable when the issues involved are at the "very frontiers of scientific knowledge," and such disagreement does not preclude us from finding that the Administrator's decisions are adequately supported by the evidence in the record.It may be that LIA expects this court to conclude that LIA's experts are right, and the experts whose testimony support the Administrator are wrong. If so, LIA has seriously misconceived our role as a reviewing court. It is not our function to resolve disagreement among the experts or to judge the merits of competing expert views. Our task is the limited one of ascertaining that the choices made by the Administrator were reasonable and supported by the record. That the evidence in the record may also support other conclusions, even those that are inconsistent with the Administrator's, does not prevent us from concluding that his decisions were rational and supportedby the record.³³

The court next considered a number of procedural objections to the lead rulemaking proceedings. There objections, the court concluded, did not pass muster under the demanding requirements of § 307(d)(8) and (9), which allow standards to be set aside on procedural grounds only where (1) the failure to follow the prescribed procedure was arbitrary or capricious, (2) the procedural objection was raised during the public comment period, or there were good reasons why it was not, and (3) the procedural errors "were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made."³⁴

Petitioners first protested EPA's reliance on a study,³⁵ which was submitted after the close of the comment period, as evidence of the effects of lead at the 25 to 35 ug PB/dl level. In the court's view this claim failed to satisfy the § 307(d)(7)(B) test, since EPA's conclusions about health effects of lead exposure were amply supported by the evidence in the record without reference to the study. [11 ELR 10200] Petitioners also failed to persuade the court to declare illegal EPA's alleged failure to provide them an opportunity for cross-examination. Such an opportunity is not required by the statute and could not be judicially mandated without running afoul of direct Supreme Court precedent.³⁶ Nor did EPA violate the Act by failing to submit the final criteria document and standards to the Independent Scientific Review Committee (ISRC), as allegedly required by § 109(d)(2) of the Act. Not only was the ISRC created after the final standards were adopted, but a subcommittee of the Science Advisory Board (SAB), an independent review subcommitte which preceded the ISRC, had already reviewed three drafts and approved the final draft. Thus, further review was unnecessary.

Finally, the court rejected the industry petitioner's objections to the participation in the rulemaking proceedings of Assistant Administrator David Hawkins, who had worked on Clean Air Act issues for environmental groups before joining the agency. Since petitioners failed to present this conflict of interest claim to EPA during the comment period as required by § 307(d)(7)(B), the court found it unnecessary to address the merits of the claim, notwithstanding the fact that constitutional issues were involved.³⁷

Ozone

Less than a year after upholding EPA's NAAQS for lead the D.C. Circuit was presented with similar challenges to EPA's ozone standards. In American Petroleum Institute v. Costle,³⁸ industry petitioners contended that the ozone standards were too stringent and were unsupported by substantial evidence in the record. Environmental petitioners had once again joined the contest, arguing this time that the standards did not allow an adequate margin of safety and were otherwise too lax. Again, the court rejected the substantive claims as well as numerous procedural challenges to the rulemaking proceedings.

Referring to its conclusion in Lead that the "technology-forcing" requirements of the Act were designed to force industry to develop new pollution control methods even though such methods may now appear far too costly, the Ozone court rejected petitioners' argument that the Administrator must consider the economic affordability of air quality standards. The court also found no support for petitioners' contention that the primary standard was not supported by substantial evidence. It concluded that despite uncertainties in some studies, the record contained adequate support for the finding that adverse health effects occur at ozone levels of 0.15 to 0.25 ppm for sensitive individuals. To inquire any further would transcend the restricted role of the court under § 307(d).

The court next refused to disclaim EPA's methodologies for reducing ozone concentrations. It would not rule that EPA's strategy for controlling ozone by reducing hydrocarbon levels was wrong since it was based on established methodologies that the petitioner had not, in the court's view, proved incorrect. The Administrator's use of an hourly rather than a 24-hour running average to measure compliance with the primary standards was also found to be reasonable.

The arguments of the environmental petitioners met a similar fate. The court found that EPA, by aiming the revised standards at ozone rather than the broader category of photochemical oxidants to which the 1971 standards were addressed, had not abandoned its statutory responsibility to regulate pollutants which "may reasonably be anticipated to endanger public health or welfare."³⁹ The Administrator reasonably chose to regulate only ozone since in his judgment it, unlike other oxidants, presents a predictable danger. Nor did the Administrator fail to establish and adequate margin of safety in the primary standard. After considering all the relevant studies, the Administrator determined that adverse effects in sensitive persons may occur at a level of 0.15 to 0.25 ppm. Though the record contained evidence suggesting that significant adverse health effects occur at levels below 0.15 ppm, the Administrator had rationally determined that such effects were not sufficiently likely to compel the setting of a lower standard.

Consideration next a number of procedural challenges, the court noted the rigorous standards that must be applied to petitions for reconsideration based on procedural errors.⁴⁰ Industry petitioners contended that EPA had violated § 8(e) of the Environmental Research, Development, and Demonstration Authorization Act of 1978⁴¹ by failing to obtain approval of the criteria document from the SAB and to submit the proposed standards to the SAB for review. While the court found that EPA did not violate § 8(e) by obtaining comments rather than SAB approval of the criteria document or the standards before promulgation of the final standard, it had violated § 8(e) by failing to at least make the proposed standard available to the SAB for comment. However, applying the "harmless error" provision of the Act,⁴² the court found that EPA's error was not "so central as to constitute grounds for invalidating the final standards."⁴³

[11 ELR 10201]

Finally, the court refused to consider objections to EPA's post-comment period additions to the record and to ex parte contacts. While the court acknowledged that the addition of a study very central to the final decision but never exposed to public comment was "disturbing,"⁴⁴ it found that under § 307(d)(7)(B) dof the Act the petitioner could not raise the issue for the first time on appeal. Similarly, the petitioner failed to properly raise its objection to post comment period White House contacts.

Judge Wald, in dissent, objected to the court's refusal to decide the ex parte issue on the merits. She noted that § 307(d)(7)(B) requires only an "objection [of central relevance] … raised with reasonable specificity," not a formal petition, to compel the Administrator to reconsider the bases for his action.⁴⁵ Thus, she would not bar the issue without at least posing an interrogatory to the parties to ascertain whether a timely objection had in fact been made.

Outlook

As EPA continues the process of reviewing the criteria documents and air quality standards for the criteria pollutants, the D.C. Circuit's decisions in Lead and Ozone provide timely guidance to the agency for meeting the substantive and procedural mandates of the Act. Fortunately for EPA, the opinions reveal a marked degree of judicial deference in this area of great scientific and medical uncertainty.

In responding to substantive challenges to both the lead and ozone standards, the court was clearly reluctant to launch into the complex scientific and medical issues presented by the rulemaking proceedings. While both industry and environmental petitioners and EPA could point to an impressive array of studies and experts supporting their respective positions, the court deferred to EPA's judgment in analyzing such a wide range of data at the "very frontiers of scientific knowledge." The court was unwilling to depart in the slightest respect from its limited function of determining whether the Administrator's decision were reasonable and supported by the record.

One of the clearest lessons to be learned from the pair of opinions is that the "adequate margin of safety" requirement gives EPA considerable leeway to err on the side of caution. Thus, in refusing to find the lead standards too stringent, the court emphasized the health-based nature of the standards and the difficulty in protecting against adverse health effects in the face of uncertain medical knowledge. On several points the industry petitioners' complaints were deflected with one or another form of this general principle. It is also significant that the court rejected what appeared to be a reasonable challenge to EPA's use of multiple allowances for margins of safety in setting the lead standards, indicating further the court's willingness to defer to the agency's scientific expertise in the face of conflicting evidence.

On the other hand, as the environmental litigants learned, the rule of judicial deference is a two-edged sword. In Ozone, the court refused to find the standards too lax, despite a 50 percent increase from the original 0.08 ppm primary standards to a 0.12 ppm final primary standard.⁴⁶ Although data suggesting the existence of adverse effects at levels below 0.15 pm cast some doubt on the adequacy of the safety margin at 0.12 ppm, the court accepted the Administrator's determination that the 0.12 ppm provided an ample margin largely because of the lack of more conclusive evidence.

Even more striking was the court's readiness to overlook the agency's procedural transgressions. Although in the court's view "the EPA procedures were not the model of regulatory action,"⁴⁷ none of the errors in Ozone warranted invalidation of the final standards. This conclusion was reached despite the simultaneous ruling that the agency had flatly violated the dictates of the Environmental Research, Development, and Demonstration Authorization Act. What this shows is how effectively Congress, in § 307(d), has immunized EPA rulemakings from procedural challenges. Thus, while procedural challenges must run the gauntlet of § 307(d), substantive challenges run headlong into the wide discretion enjoyed by the agency when "regulating in the face of scientific uncertainty" and pursuing its public health mandate.

In practical terms, the decisions alert both industry and environmental litigants, who already face an uphill battle in convincing the court to overturn ambient standards on substantive grounds, to the need to make timely challenges to suspected procedural inadequacies. In both cases, the failure of the parties to preserve their objections by making timely, even if informal protests to the agency led to the sacrifice of what might well have been telling arguments on appeal. But there is little basis for speculating that such claims would havebeen any more successful than the dozens of others that were rejected by the court. Indeed, the lessons of Lead and Ozone appear to be that any argument not won before the agency, be it substantive or procedural, will not likely be won before the court.

1. 45 Fed. Reg. 55066 (Aug. 18, 1980).

2. See 46 Fed. Reg. 9746 (Jan. 29, 1981), 46 Fed. Reg. 15569 (Mar. 6, 1981), and 45 Fed. Reg. 55066 (Aug. 18, 1980).

3. 647 F.2d 1130, 10 ELR 20643 (D.C. Cir. 1980), cert. denied, 49 U.S.L.W. 3428 (Dec. 8, 1980).

4. __ F.2d __, 11 ELR 20916 (D.C. Cir. Sept. 3, 1981).

5. 42 U.S.C. § 7408(a)(1)(A), ELR STAT. & REG. 42210. The list now includes ozone, lead, nitrogen oxides, hydrocarbons, carbon monoxide, sulfur dioxide, and particulates. However, EPA has recently proposed to revoke the hydrocarbon NAAQS based on findings that hydrocarbons, as a precursor of ozone, are adequately regulated under the ozone standards. 46 Fed. Reg. 25655 (May 8, 1981).

6. 42 U.S.C. § 7408(a)(2), ELR STAT. & REG. 42210.

7. Clean Air Act § 109(a)(2), 42 U.S.C. § 7409(a)(2), ELR STAT. & REG. 42211.

8. Clean Air Act § 109(b)(1), 42 U.S.C. § 7409(b)(1), ELR STAT. & REG. 42212. The statute does not, on its face, require that the most sensitive individuals be protected, but this intent was set out clearly in the legislative history. S. REP. NO. 91-1196, 91st Cong., 2d Sess. 10 (1970). The numerical levels of the standard are set above the levels shownby scientific studies to induce adverse health effects in sensitive individuals.

9. Clean Air Act § 109(b)(2), 42 U.S.C. § 7409(b)(2), ELR STAT. & REG. 42212. Effects on public welfare include effects on soils, water, crops, wildlife, weather, property and economic values, and personal comfort and well-being. Section 302(h), 42 U.S.C. § 7602(h), ELR STAT. & REG. 42255.

10. Clean Air Act § 109(a)(1)(B), 42 U.S.C. § 7409(a)(1)(B), ELR STAT. & REG. 42211.

11. Id.

12. Clean Air Act § 110, 42 U.S.C. § 7410, ELR STAT. & REG. 42212.

13. Clean Air Act § 109(d)(1), 42 U.S.C. § 7409(d)(1), ELR STAT. & REG. 42212.

14. Clean Air Act § 109(d)(2), 42 U.S.C. § 7409(d)(2), ELR STAT. & REG. 42212.

15. See Natural Resources Defense Council, Inc. v. Train, 545 F.2d 320, 7 ELR 20004 (2d Cir. 1976).

16. 42 Fed. Reg. 63076 (Dec. 14, 1977). The lead criteria document went through three major drafts and three separate reviews by the SAB Lead Subcommittee.

17. According to the criteria document, "subclinical" effects are "disruptions in function, which may be demonstrated by special testing but not by the classic techniques of physical examination; using the term 'subclinical' in no way implies that those effects are without consequences to human health." Criteria Document 13-4, JA 1334.

18. See 647 F.2d at 1139, 10 ELR at 20645-46 for a further discussion of EP elevation.

19. The document indicated that air lead/blood lead ratios fall within a range of 1:1 to 1:2 (ug Pb/m³ air): (ug Pb/dl blood) at the levels of lead exposure generally encountered by the population.

20. 42 Fed. Reg. 63076 (Dec. 14, 1977).

21. Thereafter, calculation of the air quality standard was a mathematical exercise as shown in the following table.

1. Target mean blood lead level 15 ug Pb/dl

2. Assumed non-air contribution -12 ug Pb/dl

3. Allowable air contribution = 3 ug Pb/dl

4. Permissible air lead concen-

tration given assumed air lead/

blood lead ratio

3 ug Pb/dl X 1 ug Pb/m³ air =1.5 ug Pb/m³

2 ug Pb/dl blood

647 F.2d at 1142, 11 ELR at 20648.

22. 43 Fed. Reg. 46246 (Oct. 5, 1978).

23. 36 Fed. Reg. 8186 (Apr. 10, 1971).

24. Photochemical oxidants are not emitted directly into the air, but are the product of chemical reactions that occur in the atmosphere. In the presence of sunlight nitrogen oxides combine with organic compounds, primarily hydrocarbons, to form these substances.

25. Though when first promulgated the regulations referred to photochemical oxidants, they applied only to ozone. The new standards refer only to ozone.

26. See 43 Fed. Reg. 26962 (June 22, 1978).

27. Id.

28. 44 Fed. Reg. 8220 (Feb. 8, 1978).

29. 647 F.2d 1130, 10 ELR 20643 (D.C. Cir. 1980).

30. 647 F.2d at 1148, 10 ELR at 20651.

31. 647 F.2d at 1150, 10 ELR at 20652.

32. Compare § 6(b)(5) of the Occupational Safety and Health Act which requires consideration of technological and economic feasibility without an analysis of costs and benefits in setting workplace health standards. See Comment, Supreme Court Upholds OSHA's Cotton Dust Standard, Deals Setback to Cost-Benefit Analysis, 11 ELR 10163 (Aug. 1981).

33. 647 F.2d at 1160, 10 ELR at 20659 (citations omitted).

34. Clean Air Act § 307(d)(8), 42 U.S.C. § 7607(d)(8), ELR STAT. & REG. 42259.

35. The "Needleman Study" examined the relationship between lead exposure and psychological performance in young children.

36. 647 F.2d at 1169-71, 10 ELR at 20664-65, citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978).

37. While exceptions to § 307(d)(7)(B) are permitted, the court found petitioner's arguments unconvincing. First, it disagreed that it could set aside agency actions which violate constitutional rights where petitioner failed to raise such claims in a timely fashion. Section 307(d)(7)(B)'s timeliness requirement applies to all objections. Nor did the court accept petitioner's argument that it had no cause to object to Hawkins' participation until after the final rules were promulgated. LIA either knew or should have known of a possible conflict of interest problem posed by Hawkins' participation but at no time objected to his participation. Furthermore, LIA provided no evidentiary support for its claim that Hawkins had prejudged the precise legal and factual issues raised during the lead standards rulemaking. Thus, the court found LIA's claim that Hawkins be disqualified unwarranted.

38. 11 ELR 20916 (D.C. Cir. Sept. 3, 1981).

39. Clean Air Act § 108(a)(1)(A), 42 U.S.C. § 7408(a)(1)(A), ELR STAT. & REG. 42210.

40. Clean Air Act § 307(d)(9), 42 U.S.C. § 7607(d)(9), ELR STAT. & REG. 42259.

41. 42 U.S.C. § 4365(e).

42. Clean Air Act § 307(d)(8), 42 U.S.C. § 7607(d)(8), ELR STAT. & REG. 42259.

43. 11 ELR at 20921. Since SAB review of the standard would involve review of the criteria document already reviewed, the court found it unlikely that such review would significantly change the standard.

44. 11 ELR at 20922.

45. 11 ELR at 20923.

46. See Thompson, Margin of Safety as a Risk-Management Concept in Environmental Legislation, 6 COLUM. J. ENVT'L L. 1, 24-26 (1979) (concluding that the margin of safety requirement is no barrier to the weakening of public health standards).

47. 11 ELR at 20923.