In Coalition of Battery Recyclers Association v. EPA, 2010 WL 1929879 (May 14, 2010), the D.C. Circuit recently upheld an EPA rule revising the primary and secondary National Ambient Air Quality Standards (NAAQS) for air-borne lead (Pb) pollution against challenges by industry representatives. The case arose from consolidated petitions for review under the Administrative Procedure Act filed by two industry representatives alleging that the revised standards were overprotective. The circuit panel, Judge Rogers writing, rejected the petitions, holding that the new standards were supported by substantial record evidence and were not arbitrary and capricious.
Sections 108 and 109 of the Clean Air Act (CAA) require the EPA administrator to establish NAAQSs for air pollutants that are found to “endanger public health or welfare.”[1] Health impacts associated with airborne lead exposure include anemia, slowed physiological development, and IQ loss.[2] EPA began regulating lead under the CAA since 1978, but did not revise its NAAQSs for the pollutant for three decades.[3]
On November 12, 2008, EPA issued a final rule that tightened primary and secondary NAAQS for lead to .15 µg/m3.[4] The revisions were responsive to scientific evidence that the previous standards were inadequate to protect against certain health risks, particularly neurological effects in children.[5] While the previous NAAQS for lead were calculated by focusing on a “target population mean blood lead level,” the 2008 aims at reducing mean health effects on children from lead below an “allowable air-related IQ loss” target of 2 IQ points.[6] EPA calculated that this goal demands a .15 µg/m3 standard. The rule also revised the averaging time to a 3-month period with a maximum and established revised data handling procedures.[7]
Petitioners’ first set of arguments focused on the adequacy of the studies EPA cited in the record to support its selection of a .15 µg/m3 standard. They contended that “(A) EPA did not provide sufficient record support for basing the standard on preventing a decrease of more than two IQ points, (B) reliance on particular studies relating blood lead levels and IQ was arbitrary and capricious, and (C) selection of a lead standard of 0.15 μg/m3 was arbitrary and capricious when measured as an average over a rolling three-month period.”[8] The court found that the record did support EPA’s conclusions, notwithstanding admitted imprecision in its methodology, given that “by its nature the finding of risk is uncertain and the Administrator must use his [or her] discretion to meet the statutory mandate.”[9]
Petitioners also alleged that EPA failed to respond to comments or to disclose information relevant to its reliance on one study (the Lanphear study) for evidence of the effects of lead on IQ at blood lead levels below 10 μg/dL and for the nonlinearity of these effects.[10] The court found that EPA had adequately responded to comments and complied with necessary disclosure requirements.
Finally, petitioner Doe Run Resources, Inc. separately challenged EPA’s legal conclusion that it lacked statutory authority under the CAA to consider the natural presence of lead sulfides in determining compliance with the lead NAAQS.[11] Applying the two-step Chevron analysis, the court concluded at step one that EPA’s statutory mandate to designate “any area that does not meet [NAAQS]” for a given pollutant to be in “nonattainment” clearly prohibited EPA from considering local bioavailability of lead sulfides in its analysis.[12] The court added that even if the CAA is ambiguous, EPA’s interpretation that it lacks authority effectively “to waive NAAQS attainment requirements in the manner requested by Doe Run” was reasonable, and therefore permissible under Chevron step two.[13]
The Battery Recyclers decision has several implications. Aside from ensuring the continued existence of EPA’s new lead standards, it confirms EPA’s ability, under the CAA, to select NAAQSs designed specially to protect “sensitive populations” (here, young children) as well as its ability, in rulemaking, to rely on reasonable methods of approximation (such as IQ measures and extrapolations of data plots) to fulfill its statutory mandate even when absolute scientific precision is impracticable.
Dan Mach is a summer associate at Sive, Paget & Riesel, PC.
[1] 42 U.S.C. 7408(a)(1) and 7409(b).
[2] 73 Fed. Reg. 66964, 66983.
[3] Id. at 66983.
[4] Id. at 66965.
[5] Id. at 66983-84.
[6] Coalition of Battery Recyclers Association v. EPA, No. 09-1011, slip op. at 4-5 (D.C. Cir. May 14, 2010) (“Battery Recyclers”).
[7] 73 Fed. Reg. at 67012-20.
[8] Battery Recyclers, slip op. at 6.
[9] Id. at 13 (citing Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1165 (1987)).
[10] Battery Recyclers, slip op. at 16-17.
[11] Id. at 18-19.
[12] Id. at 19-20.
[13] Id. at 20.
