AMERICAN IRON AND STEEL INSTITUTE, PETITIONER V. ENVIRONMENTAL
PROTECTION AGENCY, ET AL.

   No. 90-559

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Brief For The Federal Respondent In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (90-257 Pet. App. 1a-75a) /1/
is reported at 902 F.2d 962.  The order of the court of appeals
vacating Part IV and the separate opinions concerning Part IV (App.,
infra, 1a) is not yet reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 27, 1990.
 90-257 Pet. App. 1a.  On July 3, 1990, the court of appeals denied a
petition for rehearing.  Id. at 93a.  The petition for a writ of
certiorari was filed on October 1, 1990.  On January 2, 1991, the
court of appeals vacated Part IV and the separate opinions concerning
Part IV.  App., infra, 1a.  Petitioner invokes this Court's
jurisdiction under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the Environmental Protection Agency permissibly revised the
primary national ambient air quality standards for particulate matter,
pursuant to Section 109 of the Clean Air Act (42 U.S.C. 7409).

                               STATEMENT

   1. The Clean Air Act, 42 U.S.C. 7401 et seq., provides a
comprehensive program for controlling air pollution, using both
federal and state regulation.  The structure of the Clean Air Act (CAA
or the Act), as in effect at the time of these proceedings, dates from
1970 amendments to the previous statute, supplemented by further
important amendments in 1977.  Clean Air Amendments of 1970, Pub. L.
No. 91-604, 84 Stat. 1676;  Clean Air Act Amendments of 1977, Pub. L.
No. 95-95, 91 Stat. 685.  See generally General Motors Corp. v. United
States, 110 S. Ct. 2528, 2530 (1990);  Chevron U.S.A. Inc. v. NRDC,
Inc., 467 U.S. 837, 845-849 (1984);  Train v. NRDC, Inc., 421 U.S. 60,
63-67 (1975).  /2/

   Under Section 108(a) of the Act, EPA issues air quality criteria
documents reviewing scientific evidence about the possible effects of
certain listed air pollutants that endanger the public health or
welfare.  42 U.S.C. 7408(a).  Pursuant to Section 109(b) of the Act,
EPA must, for each such pollutant, promulgate "primary" national
ambient air quality standards (NAAQS) "to protect the public health"
and "secondary" NAAQS "to protect the public welfare from any known or
anticipated adverse effects associated with the presence of such air
pollutant in the ambient air." 42 U.S.C. 7409(b).

   The Administrator of EPA is directed to review the Agency's air
quality criteria and NAAQS by December 31, 1980, and at least every
five years thereafter, and to "make such revisions in such criteria
and standards and promulgate such new standards as may be
appropriate." 42 U.S.C. 7409(d)(1).  Within nine months after the
promulgation of a NAAQS or any "revision thereof," the States must
draft or revise state implementation plans (SIPs) to achieve and
maintain compliance with the NAAQS.  42 U.S.C. 7410(a)(1).  States
must submit their SIPs to EPA for approval or disapproval under the
criteria set forth in Section 110(a)(2) of the CAA, 42 U.S.C.
7410(a)(2).

   2. "Particulate matter" is the generic term for a broad class of
chemically and physically diverse particles that exist in the air as
discrete liquid droplets or as solids.  For regulatory purposes, the
term includes all of the particles captured and filtered by an
air-sampling device meeting certain specifications.  90-257 Pet. App.
5a;  49 Fed. Reg. 10,410 (1984).

   a. On April 28, 1971, EPA promulgated primary and secondary NAAQS
for particulate matter under Section 109 of the CAA, 42 U.S.C. 7409.
36 Fed. Reg. 8186 (1971).  These standards were set in terms of "total
suspended particulate" (TSP) as measured by a specified sampling
device.  See id. at 8191-8193;  90-257 Pet. App. 6a.

   b. In October 1979, pursuant to Section 109(d) of the CAA, EPA
announced that it would reexamine the scientific evidence concerning
health and welfare effects associated with particulate matter and
review the existing air quality standards for possible revisions.  44
Fed. Reg. 56,730.  In 1982, EPA published a Revised Criteria Document
for particulate matter.  An accompanying Staff Paper recommended
replacing the TSP measurement of particulate matter with a measurement
focused on particles with an aerodynamic diameter of 10 microns or
less (known as PM10).  90-257 Pet. App. 5a, 10a.

   c. In March 1984, EPA formally proposed revisions to the
particulate matter standards.  49 Fed. Reg. 10-408.  EPA noted that a
TSP indicator, in contrast to a PM10 indicator, "directs control
efforts toward larger particles that * * * are of less concern to
health than smaller particles." Id. at 10,412.  EPA thus proposed to
replace its primary standards for particulate matter based upon TSP
with primary standards based upon PM10.  Ibid.

   EPA also discussed the possible PM10 levels for the primary NAAQS.
The Agency explained that there would be two standards -- a 24-hour
standard and an annual standard.  For the 24-hour standard, it
proposed selecting a level from a range of 150 to 250 micrograms per
cubic meter (ug/m3), and, for the annual standard, it proposed a range
of between 50 and 65 ug/m3.  The Agency also explained that, in light
of "the precautionary nature" of Section 109, the Administrator was
likely to select a standard from the "lower portion" of each range.
49 Fed. Reg. 10,415-10,417 (1984).  /3/

   d. On July 1, 1987, EPA published a final rule revising the
particulate matter NAAQS.  52 Fed. Reg. 24,634;  90-257 Pet. App. 76a.
 As proposed, EPA replaced TSP with PM10 as the new indicator for the
primary standards.  90-257 Pet. App. 76a.  Based on its evaluation of
the relevant health studies, EPA selected a 24-hour PM10 standard of
150 ug/m3, and an annual PM10 standard of 50 ug/m3.  Ibid.; 90-559
Pet. App. 21a-36a.  /4/ The Agency concluded that a 24-hour PM10
standard greater than 150 ug/m3 would "present an unacceptable risk of
premature mortality" and allow the possibility of significant lung
function changes.  90-559 Pet. App. 31a.  EPA similarly relied upon
the available "long-term quantitative studies" and "qualitative data
from a number of epidemiological, animal and ambient particle
composition studies" to arrive at an annual PM10 standard of 50 ug/m3.
 Id. at 34a-35a.  /5/

   3. Petitioner and several other parties filed timely petitions for
review of various aspects of the July 1, 1987 regulations.  See 42
U.S.C. 7607(b)(1).  /6/ For its part, petitioner challenged the
primary NAAQS for particulate matter.  As the court of appeals pointed
out, petitioner did not challenge the use of a PM10 measurement;  nor
did it contest EPA's retention of both a short term (twenty-four hour)
and long term (annual) standard for particulate matter.  90-257 Pet.
App. 11a.  Rather, petitioner's challenge was to the numerical levels
in the NAAQS.  Petitioner challenged these levels in two principal
respects.  First, petitioner argued that the selection of the
particular numerical levels was arbitrary and capricious.  Second,
petitioner contended that EPA's procedure for setting primary air
quality standards under Section 109 of the CAA was inconsistent with
the court of appeals' decision in Natural Resources Defense Council,
Inc. v. EPA, 824 F.2d 1146 (D.C. Cir. 1987) (Vinyl Chloride), which
concerned EPA's national emission standards for hazardous air
pollutants under Section 112 of the CAA (42 U.S.C. 7412).  /7/

   The court of appeals unanimously rejected both of these arguments.
With respect to the 24-hour primary standard, the court concluded
that, "(i)n setting a standard under Section 109, the Administrator
must take into account all the relevant studies revealed in the record
and make an informed judgment based on available evidence.  * * * The
record shows that the Administrator did so." 90-257 Pet. App. 17a
(internal quotation marks omitted).  Similarly, with respect to the
annual primary standard, the court of appeals concluded that "(t)he
record is replete with support for the final standard." Id. at 18a.
On both points, the court of appeals discussed in detail the
applicable studies and other factual evidence that supported the
primary standards chosen by EPA.  Id. at 13a-21a.

   Petitioner's argument concerning the Vinyl Chloride decision also
failed to persuade the court of appeals.  90-257 Pet. App. 21a-23a.
The court contrasted Section 112 of the CAA, under which EPA "may
consider cost and technological feasibility in selecting levels for
hazardous pollutant standards," with Section 109, under which EPA "may
not consider cost and technological feasibility." 90-257 Pet. App.
22a.  Because of this distinction, the court of appeals concluded that
"(t)he two-step methodological requirement endorsed by Vinyl Chloride"
for emissions standards under Section 112 "is inapposite to actions
under Section 109." Ibid.  /8/

                               ARGUMENT

   Petitioner renews its contention that, as in Vinyl Chloride, the
Administrator must determine a single level that is "safe" before
determining the permissible "margin of safety." Pet. 13-14, 15-16.
Petitioner's suggestion is erroneous, and its claim does not warrant
review.

   Section 109(b)(1) explicitly directs the Administrator to formulate
a NAAQS that, in his judgment, reflects "an adequate margin of safety
* * * requisite to protect the public health." 42 U.S.C. 7409(b)(1).
As the Administrator noted in denying petitioner's petition for
reconsideration, the court of appeals had already held that EPA need
not adopt a two-step process for setting NAAQS under Section 109 and
that the choice of approach in determining the margin of safety "is a
policy choice of the type that Congress specifically left to the
Administrator's judgment." 53 Fed. Reg. 52,700-52,701 (1988);  Lead
Indus. Ass'n v. EPA, 647 F.2d 1130, 1161-1162 (D.C. Cir.), cert.
denied, 449 U.S. 1042 (1980).  Three separate panels of the court of
appeals have now upheld -- without a single dissent -- EPA's procedure
for establishing NAAQS under Section 109, in which the Administrator
has determined the appropriate "margin of safety" without petitioner's
two-step procedure.  90-257 Pet. App. 21a-23a;  American Petroleum
Inst. v. Costle, 665 F.2d 1176, 1184-1187 (D.C. Cir. 1981), cert.
denied, 455 U.S. 1034 (1982);  Lead Indus. Ass'n v. EPA, 647 F.2d at
1148-1156, 1161-1162.  Thus, while petitioner correctly notes that the
Act's judicial review provisions "eliminate any possibility of a
conflict among the circuits" on this point (Pet. 10;  see 42 U.S.C.
7607(b)(1)), there is no reason to believe that the petition raises a
controversial or unsettled issue of federal law.  /9/

   Petitioner's reliance on Vinyl Chloride and its explication of the
requirements for Section 112 is entirely misplaced.  In that unanimous
en banc decision, the court explained that a two-step methodology (in
which EPA must determine a "safe" level and then the appropriate
"margin of safety") was necessary because Section 112 requires the
consideration of economic and technological factors.  Indeed, the
court specifically explained that differences between Section 109 and
Section 112 permit EPA to consider economic and technological
feasibility in setting standards under the latter Section but not
under the former.  Vinyl Chloride, 824 F.2d at 1157-1159.  All three
members of the court of appeals panel below participated in the
consideration of the Vinyl Chloride decision, and all three agreed
that Vinyl Chloride is inapposite to EPA's setting of Section 109 air
quality standards.  90-257 Pet. App. 22a.  The court's interpretation
of Section 109 is consistent with the view that EPA has repeatedly
expressed from the time the Agency first promulgated ambient air
quality standards in 1971.  See, e.g., 50 Fed. Reg. 37,484, 37,499
(1985) (carbon monoxide);  44 Fed. Reg. 8202, 8203 (1979) (ozone);  43
Fed. Reg. 46,246, 46,247, 46,256 (1978) (lead);  36 Fed. Reg. 8186
(1971) (original standards for six pollutants).  The court of appeals
correctly determined that the rationale for the two-step procedure
under Section 112 is not applicable to Section 109.

   Petitioner further contends (Pet. 15) that EPA's standard setting
under Section 109 precludes meaningful judicial review.  The court of
appeals' decision belies this contention, however.  As the court of
appeals emphasized, EPA fully explained its approach to setting air
quality standards with an adequate margin of safety (90-559 Pet. App.
21a-23a) and then set forth in detail how it applied this approach to
both the 24-hour and annual primary standards for particulate matter.
Id. at 23a-36a.  Applying the appropriate standard of review, the
court of appeals itself examined in detail the record evidence upon
which EPA based its standards.  90-257 Pet. App. 12a-21a.  This case
thus clearly does not raise a significant legal issue regarding the
availability of meaningful judicial review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /10/

   RICHARD B. STEWART

      Assistant Attorney General

   DANIEL S. GOODMAN

      Attorney

   E. DONALD ELLIOTT

      Assistant Administrator and General Counsel

   ALAN W. ECKERT

      Associate General Counsel

   MICHAEL S. WINER

      Assistant General Counsel

   GERALD K. GLEASON

      Attorney Environmental Protection Agency

   JANUARY 1991

   /1/ Petitioner cites the court of appeals' opinion as reprinted in
the petition appendix of National Coal Ass'n v. National Resources
Defense Council, Inc., No. 90-257.  See Pet. 1 n.1.  For clarity, we
will cite the National Coal Ass'n petition appendix as "90-257 Pet.
App.," and petitioner's own appendix as "90-559 Pet. App."

   /2/ The Clean Air Act was substantially revised by additional
amendments in 1990.  Clean Air Act Amendments of 1990, Pub. L. No.
101-549, 104 Stat. 2399.  The amendments do not directly affect the
issue presented in this case.  All citations are to the pre-1990
version of the Act.

   /3/ For the secondary particulate matter standards, EPA proposed
retaining TSP as the indicator, but also asked for public comment on
the alternative of establishing secondary standards equivalent to the
primary standards in all respects.  49 Fed. Reg. 10,418-10,419 (1984).

   /4/ In 1986, on the basis of additional studies, EPA's staff had
revised its own recommendations for 24-hour PM10 standards and for
annual PM10 standards.  90-257 Pet. App. 10a-11a.

   /5/ A table in the preamble to the final PM10 standards (reprinted
at 90-559 Pet. App. 24a) contained several printing errors, which were
the subject of published corrections two weeks later.  See 52 Fed.
Reg. 26,401 (1987).  Additionally, rather than adopting its proposed
secondary TSP standards, EPA promulgated secondary 24-hour and annual
PM10 standards identical in all respects to the primary standards.
90-257 Pet. App. 77a.  This decision was based in part upon public
comments pointing out the limitations of TSP as an indicator, as well
as upon a lack of "convincing scientific support for maintaining TSP
as an indicator for the secondary standards." Id. at 79a.

   /6/ Petitioner also filed a petition for reconsideration with EPA,
which the Agency denied.  53 Fed. Reg. 52,698 (1988).

   /7/ Petitioner also claimed that EPA had improperly failed to
consider possible health effects from unemployment and to give States
appropriate up-to-date information about PM10 control techniques.  The
court of appeals rejected the first argument (90-257 Pet. App. 21a)
and held that petitioner did not have standing to raise the second
(id. at 25a-28a).  Petitioner does not pursue either claim in this
Court.

   /8/ In the court of appeals, certain other parties (Natural
Resources Defense Council, et al. (NRDC)) also raised an objection to
EPA's treatment of an issue in the secondary standards for particulate
matter (the welfare effects of visibility impairment and acid
deposition).  See 90-257 Pet. App. 35a-75a.  The court of appeals
concluded, per curiam, that EPA had engaged in final action on acid
deposition but not visibility impairment and remanded to EPA for a
statement of reasons concerning acid deposition.  Id. at 35a-36a.  The
judges were split on that issue, however:  Judge Silberman would have
found no final agency action on either issue (id. at 69a-75a), Judge
Edwards would have found final agency action on both issues (id. at
56a-68a), and Chief Judge Wald concluded that only the acid deposition
action was final (id. at 37a-55a).  The petitions in National Coal
Ass'n v. NRDC, No. 90-257 and Alabama Power Co. v. NRDC, No. 90-558
challenged the court of appeals' remand on the acid deposition issue.
In November 1990, in light of the Clean Air Act Amendments of 1990,
NRDC moved in the court of appeals to dismiss its initial petition for
review;  on January 2, 1991, the court of appeals granted the motion
and vacated Part IV of its opinion and the separate opinions.  App.,
infra, 1a.  National Coal Association and Alabama Power Company then
moved to dismiss their petitions in this Court, and the Clerk of this
Court granted the motion on January 24, 1991.

   /9/ Petitioner's suggestion (Pet. 10-11, 15) that the Administrator
did not determine the PM10 level "'requisite to protect the public
health'" and to provide an "'adequate margin of safety'" is incorrect.
 See, e.g., 90-559 Pet. App. 5a-6a, 35a-36a.  As the court of appeals
emphasized, "the Administrator determined the primary standards for
particulate matter based solely upon the risk to health.
Methodologically, that is all that is required under Section 109."
90-257 Pet. App. 23a.  Petitioner's disagreement with the method for
reaching that judgment does not justify the erroneous suggestion that
no judgment was reached at all.

   /10/ The Solicitor General is disqualified in this case.

   APPENDIX