- 42 U.S.C. §§ 7401–7642.
- The formal statutory term is “National Ambient Air Quality Standards.” The E.P.A. is required to promulgate both a primary standard—sufficient to protect human health—and a secondary standard which is sufficient to protect against property damage, including injury to plants and livestocks. When E.P.A. finally promulgated an ambient air standard for lead (see text at footnote 4, infra) it promulgated the same level for both the primary and secondary standard.
- 33. U.S.C. §§ 1231–1376. The statute was originally known as the Federal Water Pollution Control Act of 1972.
- The lead standard controversy is fully described in the court case which upheld the E.P.A.'s standard Lead Industries Ass'n. v. E.P.A. 647 F. 2d 1130 (D.C. Cir.), cert, denied, 449 U.S. 1042 (1980).
- 42 U.S.C. § 7545(c)(1). This section is sometimes cited with reference to the Public Law Section number, §211(c).
- Lead has been used as an antiknock additive in the United States since around 1923.
- E.P. A.'s original findings were stated in the form of a logical progression: (1) lead in high concentrations in the human body is toxic; (2) lead can be absorbed into the body from the ambient air; and (3) lead particulate emissions from gasoline engines account for around 90% of all airborne lead emissions. 38 Fed. Reg. 33741 (December 6, 1973). [N.B. The abbreviation “Fed.Reg.” stands for the Federal Register, a daily publication by the federal government in which agencies announce new rules.
- In moving against leaded gasoline, the E.P.A. was careful not to prove too much. As E.P.A. put it: The Clean Air Act does not require a finding that gasoline engines are the sole source of lead pollution, but rather than Congress “was aware that the public's exposure to hamful substances results from a number of sources which may have varying degrees of susceptibility to control.” In other words, the Act provided ample authority to regulate gasoline additives even if E.P. A. could not remove all the lead from the ambient air. The E.P.A. rulemaking was a comprehensive proceeding. E.P.A. accumulated a written record in excess of 10,000 pages. Readers not familiar with the procedure for promulgating federal regulations should be aware that the E.P.A. is required to follow so-called “notice and comment” procedures. These procedures require E.P.A.: (i) to publish a proposed rule, (ii) to permit all interested persons to comment on that rule in writing and, occasionally, in oral hearings, and (iii) to promulgate a final rule after considering all the comments, both favourable and unfavourable. Major E.P.A. rulemakings are then invariably taken to federal court by adversely affected parties. E.P.A. generally prevails on judicial review, however. See, e.g. Ethyl Corporation v. E.P.A. 541 F.2d 1 (D.C. Cir. 1976) (the decision upholding the original lead phasedown requirements).
- 38 Fed. Reg. 33741 (December 6, 1973).
- Clean Air Act Amendments of 1977, Public Law No. 95–95, codified at 42 U.S.C. § 7545(g).
- 44 Fed. Reg. 46275 (August 7, 1979).
- For a comprehensive description of the price control programs which were eliminated by Presidential Directive in 1981, see W. Fox, Federal Regulation of Energy (1983) Chap. 6.
- 44. Fed. Reg. 38078 (August 27, 1982).
- 44. Fed. Reg. 49324 (October 29, 1982). Small refiners were permitted to meet a 1–90 gram per leaded gallon standard in the six month transitional period. E.P.A. also tightened the definition of small refinery, as it was directed to do by Congress, to exclude refineries which began operations after October 1, 1976, thereby eliminating many of the tea kettle operations.
- 705 F.2d 506 (D.C. Cir. 1983).
- 705 F.2d at 525, 531. E.P.A. reviewed, among many other works, the prestigious report by the United States National Academy of Sciences, Lead in the Human Environment (1980). and various studies by the U.S. Centers for Disease Control. One study cited by the court, Hsia, Blood Lead of Chicago Children and Its Sources, 1967–1980, concluded that gasoline lead is responsible for 55 per cent, of the blood lead levels in Chicago children, while lead paint is responsible for only about 25%. 705 F.2d at 528, n. 49.
- 50 Fed. Reg. 9386 (March 7, 1985).
- 50 Fed. Reg. 13116 (April 2, 1985).
Journal of Energy & Natural Resources Law
Volume 4, 1986 - Issue 1