Coal. Of Battery Recyclers Ass'n v. Envtl. Prot. Agency
| Decision Date | 14 May 2010 |
| Docket Number | 09-1012.,No. 09-1011,09-1011 |
| Citation | 604 F.3d 613 |
| Parties | COALITION OF BATTERY RECYCLERS ASSOCIATION, Petitionerv.ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
COPYRIGHT MATERIAL OMITTED
On Petitions for Review of Final Rule of the United States Environmental Protection Agency.
Michael B. Wigmore argued the cause for petitioner Coalition of Battery Recyclers Association in No. 09-1011. Dennis Lane argued the cause for petitioner The Doe Run Resources Corporation in No. 09-1012. With them on the briefs were Robert N. Steinwurtzel and Sandra P. Franco.
Eric G. Hostetler, Attorney, U.S. Department of Justice, argued the cause and filed the brief for respondent.
Before: SENTELLE, Chief Judge, ROGERS and GARLAND, Circuit Judges.
Upon review of the air quality criteria and national ambient air quality standards (“NAAQS”), the Environmental Protection Agency revised the primary and secondary NAAQS for lead. See National Ambient Air Quality Standards for Lead, 73 Fed.Reg. 66,964 (Nov. 12, 2008) (“Final Rule”). The revision was designed to provide, in light of recent science, the requisite protection of public health and welfare by revising the permissible level of lead in ambient air and revising the averaging time over which the level must be met. The final rule also revised data handling procedures and emissions inventory reporting requirements and provided guidance on implementation. The Coalition of Battery Recyclers Association and the Doe Run Resources Corporation (together “petitioners”) contend EPA action was arbitrary and capricious in multiple ways. Upon review of the rulemaking record, we are unpersuaded and we deny the petitions for review.
Pursuant to sections 108 and 109 of the Clean Air Act, 42 U.S.C. §§ 7408-09, EPA regulates air pollutants, “emissions of which, in [the Administrator's] judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare,” id. § 7408(a)(1)(A). Lead (“Pb”) emitted into the air can be inhaled or ingested and then absorbed into the bloodstream, potentially leading to a broad range of adverse health effects including adverse neurological effects in children. See Final Rule, 73 Fed.Reg. at 66,972-73, 66,975-76. In 1978 EPA established primary and secondary NAAQS for lead of 1.5 micrograms of lead per cubic meter of air (µg/m 3) averaged over a calendar quarter. See National Primary and Secondary Ambient Air Quality Standards for Lead, 43 Fed.Reg. 46,246 (Oct. 5, 1978) (“1978 Lead NAAQS”). At this time, adverse neurocognitive effects in children had not been shown for blood lead levels below 50 micrograms of lead per deciliter of blood (µg/dL), and the 1978 NAAQS aimed to prevent most children from exceeding a blood lead level of 30 µg/dL. See id. at 46,246, 46,252. However, later studies showed adverse neurocognitive effects in children with blood lead levels below 10 µg/dL. See Final Rule, 73 Fed.Reg. at 66,975-76, 66,984.
EPA began reviewing the NAAQS for lead in 2004, considering some 6,000 studies and concluding “there is now no recognized safe level of Pb in children's blood.” Id. at 66,984. As part of its review, EPA produced a “Criteria Document” assessing the latest scientific information regarding health effects associated with lead in the ambient air. See id. at 66,966-67. EPA's review “shift[ed] focus from identifying an appropriate target population mean blood lead level and instead focuse[d] on the magnitude of effects of air-related Pb on neurocognitive functions.” Id. at 66,984. EPA developed an “evidence-based framework” that examined published studies addressing the relationship between IQ loss in children and air lead levels. Id. EPA relied to a lesser extent on risk estimates derived from risk assessment models. Id. at 67,006. Through its review, EPA sought to identify an air lead level “that would prevent air-related IQ loss (and related effects) of a magnitude judged by the Administrator to be of concern in populations of children exposed to the level of the standard.” Id. at 66,997.
To relate IQ loss to air lead levels, EPA used its evidence-based framework to determine relationships between air lead levels and blood lead levels (the “air-to-blood ratio”) and between blood lead levels and IQ loss (the “concentration-response” relationship). EPA concluded that for each µg/m 3 increase of lead in air, children's blood lead levels increase by 5-10 µg/dL, i.e., the air-to-blood ratio ranged from 1:5 to 1:10. Id. at 67,002. EPA selected an air-to-blood ratio of 1:7 “as a generally central value within this range.” Id. at 67,004. EPA also concluded that the concentration-response relationship is nonlinear, with greater incremental IQ loss occurring at lower blood lead levels, and thus that analyses of children with blood lead levels closest to those of children in the United States today were most relevant. Id. at 67,002. EPA determined that the most recently measured mean blood lead level of U.S. children five years old and younger was 1.8 µg/dL id., and selected four study groups involving children with mean blood lead levels between 2.9 and 3.8 µg/dL rather than groups with higher mean blood lead levels id. at 67,003. To “avoid[ ] focus on a single estimate that may be unduly influenced by one single analysis,” each of the four selected groups was from a different study. Id. Using each group's reported mean IQ point decrease per µg/dL increase in blood lead levels, i.e., using the slope of the concentration-response relationship for each group, EPA calculated the median concentration-response slope to be -1.75 µg/dL. Id.
After considering public comments and the recommendations of its independent scientific review committee, the Clear Air Scientific Advisory Committee (“CASAC”), see 42 U.S.C. § 7409(d)(2), as well as “the uncertainties in the health effects evidence and related information” and the role of IQ loss in its evidence-based framework, EPA concluded that an allowable airborne lead-related loss of two IQ points should be used to set the NAAQS standard. Final Rule, 73 Fed.Reg. at 67,005. CASAC had stated that “ a population loss of 1-2 IQ points is highly significant from a public health perspective ” and that such loss should be prevented, recommending an air lead level standard of 0.20 µg/m 3 or less. Id. at 66,999-67,000. Combining the blood-to-air ratio of 1:7, the concentration-response slope of -1.75 µg/dL, and the allowable air-related IQ loss of 2 points, EPA concluded that an air lead level standard of 0.15 µg/m 3 “would be sufficient to protect public health with an adequate margin of safety” and “is neither more nor less stringent than necessary for this purpose.” Id. at 67,007.
EPA also concluded that the appropriate averaging time for the air lead level standard is a rolling three-month period with a maximum (not-to-be-exceeded) form evaluated over a period of three years. Id. at 66,996. EPA had initially proposed an averaging time of either a calendar quarter or a calendar month, National Ambient Air Quality Standards for Lead, 73 Fed.Reg. 29,184 (May 20, 2008) ( “NPRM” ), with CASAC recommending a monthly averaging period, see Final Rule, 73 Fed.Reg. at 66,993. EPA based its conclusion on scientific evidence indicating that blood lead levels increase quickly in response to increased lead exposure, that blood lead levels measured at the same time as an IQ test (“concurrent blood lead levels”) are most strongly associated with IQ response, and that these concurrent blood lead levels reflect lead exposure over the past one to three months. Id. at 66,992-93. On November 12, 2008, EPA published the final rule, revising the primary and secondary NAAQS for lead to 0.15 µg/m 3 averaged over a rolling three-month period. Id. at 66,964.
Petitioners assert that the revised primary lead NAAQS is overprotective, contending 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/m 3 was arbitrary and capricious when measured as an average over a rolling three-month period. Consistent with our standard of review see Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 1145-48 (D.C.Cir.1980); 42 U.S.C. § 7607(d)(9), we conclude these contentions lack merit because there is substantial record evidence to support EPA's conclusions that the population of children exposed to air lead levels above the revised NAAQS could suffer, and should be prevented from suffering, average losses of more than two IQ points, that greater incremental IQ loss occurs at lower relative blood levels and the more relevant IQ analyses are those of children with blood levels closest to today's population of children, and that a standard of 0.15 µg/m 3 measured as a three-month rolling average is required to protect public health with an adequate margin of safety.
Sensitive populations; focus on IQ decrements. Petitioners' assertion that the revised lead NAAQS is overprotective because it is more stringent than necessary to protect the entire population of young U.S. children ignores that the Clean Air Act allows protection of sensitive subpopulations. Primary NAAQS are those “which in the judgment of the Administrator, ... allowing an adequate margin of safety, are requisite to protect the public health.” 42 U.S.C. § 7409(b)(1). In Whitman v. American Trucking Ass'ns, 531 U.S. 457, 475-76, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001), the Supreme Court interpreted “requisite to protect” as “not lower or higher than is necessary ... to protect the public health with an adequate margin of safety.” This court, en banc, cited the Senate Report accompanying the ...
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