824 F.2d 1146 (D.C. Cir. 1987), 85-1150, Natural Resources Defense Council, Inc. v. United States E.P.A.

Docket Nº:85-1150.
Citation:824 F.2d 1146
Party Name:Envtl. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, U.S. Environmental Protection Agency, Respondents, Vinyl Institute, Intervenor.
Case Date:July 28, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1146

824 F.2d 1146 (D.C. Cir. 1987)

Envtl.

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas,

Administrator, U.S. Environmental Protection

Agency, Respondents,

Vinyl Institute, Intervenor.

No. 85-1150.

United States Court of Appeals, District of Columbia Circuit

July 28, 1987

Argued En Banc April 29, 1987.

Page 1147

Petition for Review of an Order of the Environmental Protection agency.

David D. Doniger, Washington, D.C., for petitioner.

Peter R. Steenland, Atty. Dept. of Justice, with whom Stephen L. Samuels, Margaret N. Strand, Michael W. Steinberg, Mark P. Fitzsimmons, Attys., Dept. of Justice, Francis Blake, Gen. Counsel, William Pedersen, Associate Gen. Counsel, Charles Carter, Asst. Gen. Counsel, and Earl Salo, Atty., E.P.A., Washington, D.C., were on the brief, for respondents.

Jerome H. Heckman, Peter L. delaCruz, Gary H. Baise, Robert Brager, Brenda Mallory, Albert J. Beveridge III and Don G. Scroggin, Washington, D.C., were on the brief for intervenor, The Vinyl Institute.

Daniel Marcus, Washington, D.C., was on the brief for amicus curiae, American Iron and Steel Institute, urging approval of E.P.A. action to withdraw proposed amendments to the vinyl chloride standard.

Robert V. Percival, Washington, D.C., was on the brief for amicus curiae, Environmental Defense Fund, urging the grant of Natural Resources Defense Council's petition for review.

G. William Frick, Martha A. Beauchamp, Arthur F. Sampson III and John Gibson Mullan, Washington, D.C., were on the brief for amicus curiae, The American Petroleum Institute, urging affirmance of the panel decision. Stark Ritchie and Arnold Block, Washington, D.C., also entered appearances for the American Petroleum Institute.

David F. Zoll and Neil Jay King, Washington, D.C., were on the brief for amicus curiae, Chemical Manufacturers Ass'n, urging approval of E.P.A. action. Fredric P. Andes, Washington, D.C., also entered an appearance for Chemical Manufacturers Ass'n.

Frederick R. Anderson, Washington, D.C., was on the brief for amicus curiae, Various Professors of Law, urging the reversal of the panel decision.

Before WALD, Chief Judge, ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, BORK, STARR, SILBERMAN, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

Current scientific knowledge does not permit a finding that there is a completely safe level of human exposure to carcinogenic agents. The Administrator of the Environmental Protection Agency, however, is charged with regulating hazardous pollutants, including carcinogens, under section 112 of the Clean Air Act by setting emission standards "at the level which in his judgment provides an ample margin of safety to protect the public health." 42 U.S.C. Sec. 7412(b)(1)(B) (1982). We address here the question of the extent of the Administrator's authority under this delegation in setting emission standards for carcinogenic pollutants.

Petitioner Natural Resources Defense Council ("NRDC") contends that the Administrator must base a decision under section 112 exclusively on health-related factors and, therefore, that the uncertainty about the effects of carcinogenic agents requires the Administrator to prohibit all emissions. The Administrator argues that in the face of this uncertainty he is authorized to set standards that require emission

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reduction to the lowest level attainable by best available control technology whenever that level is below that at which harm to humans has been demonstrated. We find no support for either position in the language or legislative history of the Clean Air Act. We therefore grant the petition for review and remand to the Administrator for reconsideration in light of this opinion.

I.

Section 112 of the Clean Air Act provides for regulation of hazardous air pollutants, which the statute defines as "air pollutant[s] to which no ambient air quality standard is applicable and which in the judgment of the Administrator cause[ ], or contribute[ ] to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." 42 U.S.C. Sec. 7412(a)(1) (1982). The statute requires the Administrator to publish a list containing each hazardous pollutant for which he intends to adopt an emission standard, to publish proposed regulations and a notice of public hearing for each such pollutant, and then, within a specified period, either to promulgate an emission standard or to make a finding that the particular agent is not a hazardous air pollutant. See id. Sec. 7412(b)(1)(B). The statute directs the Administrator to set an emission standard promulgated under section 112 "at the level which in his judgment provides an ample margin of safety to protect the public health." Id.

This case concerns vinyl chloride regulations. Vinyl chloride is a gaseous synthetic chemical used in the manufacture of plastics and is a strong carcinogen. In late 1975, the Administrator issued a notice of proposed rulemaking to establish an emission standard for vinyl chloride. 40 Fed.Reg. 59,532 (1975). In the notice, the EPA asserted that available data linked vinyl chloride to carcinogenic, as well as some noncarcinogenic, disorders and that "[r]easonable extrapolations" from this data suggested "that present ambient levels of vinyl chloride may cause or contribute to ... [such] disorders." Id. at 59,533. The EPA also noted that vinyl chloride is "an apparent non-threshold pollutant," which means that it appears to create a risk to health at all non-zero levels of emission. Scientific uncertainty, due to the unavailability of dose-response data and the twenty-year latency period between initial exposure to vinyl chloride and the occurrence of disease, makes it impossible to establish any definite threshold level below which there are no adverse effects to human health. Id. at 59,533-34. The notice also stated the "EPA's position that for a carcinogen it should be assumed, in the absence of strong evidence to the contrary, that there is no atmospheric concentration that poses absolutely no public health risk." Id. at 59,534.

Because of this assumption, the EPA concluded that it was faced with two alternative interpretations of its duty under section 112. First, the EPA determined that section 112 might require a complete prohibition of emissions of non-threshold pollutants because a "zero emission limitation would be the only emission standard which would offer absolute safety from ambient exposure." 40 Fed.Reg. at 59,534. The EPA found this alternative "neither desirable nor necessary" because "[c]omplete prohibition of all emissions could require closure of an entire industry," a cost the EPA found "extremely high for elimination of a risk to health that is of unknown dimensions." Id.

The EPA stated the second alternative as follows:

An alternative interpretation of section 112 is that it authorizes setting emission standards that require emission reduction to the lowest level achievable by use of the best available control technology in cases involving apparent non-threshold pollutants, where complete emission prohibition would result in widespread industry closure and EPA has determined that the cost of such closure would be grossly disproportionate to the benefits of removing the risk that would remain after imposition of the best available control technology.

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Id. The EPA adopted this alternative on the belief that it would "produce the most stringent regulation of hazardous air pollutants short of requiring a complete prohibition in all cases." Id.

On October 21, 1976, the EPA promulgated final emission standards for vinyl chloride which were based solely on the level attainable by the best available control technology. 41 Fed.Reg. 46,560 (1976). The EPA determined that this standard would reduce unregulated emissions by 95 percent. Id. With respect to the effect of the standard on health, the EPA stated that it had assessed the risk to health at ambient levels of exposure by extrapolating from dose-response data at higher levels of exposure and then made the following findings:

EPA found that the rate of initiation of liver angiosarcoma among [the 4.6 million] people living around uncontrolled plants is expected to range from less than one to ten cases of liver angiosarcoma per year of exposure to vinyl chloride.... Vinyl chloride is also estimated to produce an equal number of primary cancers at other sites, for a total of somewhere between less than one and twenty cases of cancer per year of exposure among residents around plants. The number of these effects is expected to be reduced at least in proportion to the reduction in the ambient annual average vinyl chloride concentration, which is expected to be 5 percent of the uncontrolled levels after the standard is implemented.

Id. The EPA did not state whether this risk to health is significant or not. Nor did the EPA explain the relationship between this risk to health and its duty to set an emission standard which will provide an "ample margin of safety."

The Environmental Defense Fund ("EDF") filed suit challenging the standard on the ground that section 112 requires the Administrator to rely exclusively on health and prohibits consideration of cost and technology. The EDF and the EPA settled the suit, however, upon the EPA's agreement to propose new and more stringent standards for vinyl chloride and to establish an ultimate goal of zero emissions.

The EPA satisfied its obligations under the settlement agreement by proposing new...

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