In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1011, Consolidated with No. 09-1012. The Appeals Court said upon review of the air quality criteria and national ambient air quality standards (NAAQS), U.S. EPA revised the primary and secondary NAAQS for lead when it issued a final rule in November 2008 [See WIMS 10/16/08]. 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 the petitioners) contend EPA action was arbitrary and capricious in multiple ways. The Appeals Court ruled, "Upon review of the rulemaking record, we are unpersuaded and we deny the petitions for review."
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/m3 was arbitrary and capricious when measured as an average over a rolling three-month period.
However, the Appeals Court said, "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/m3 measured as a three-month rolling average is required to protect
public health with an adequate margin of safety."
The Appeals Court explained its ruling further, "Applying the familiar two-step analysis under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), see Natural Res. Def. Council v. EPA, 489 F.3d 1364, 1371 (D.C. Cir. 2007), we conclude Doe Run's contention fails at both steps. First, Congress provided in the Clean Air Act that primary NAAQS 'shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator . . . are requisite to protect the public health.' 42 U.S.C. § 7409(b)(1). EPA is required to designate 'any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant' as 'nonattainment.' Id. § 7407(d)(1). Further, EPA 'may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless' it 'determines that the area has attained the national ambient air quality standard.' Id. § 7407(d)(3)(E)(i).
"Additionally, Congress addressed the circumstances under which attainment could be waived, e.g., as with certain particulate matter sources, see 42 U.S.C. § 7513(f), and with emissions emanating from outside the United States, see 42 U.S.C. § 7509a, but provided no authorization for EPA to waive NAAQS attainment requirements in the manner requested by Doe Run. Even assuming the Clean Air Act was ambiguous with regard to whether EPA was empowered to grant other waivers, EPA's interpretation of its authority under the statutory scheme is permissible under Chevron step two, 467 U.S. at 843, and entitled to deference by the court. Accordingly, we deny the petitions."
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