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AD HOC METALS COALITION v. WHITMAN

September 26, 2002

AD HOC METALS COALITION, PLAINTIFF,
V.
CHRISTINE TODD WHITMAN, ADMINISTRATOR, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS. NATIONAL FEDERATION OF INDEPENDENT BUSINESS, PLAINTIFF, V. CHRISTINE TODD WHITMAN, ADMINISTRATOR, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman, United States District Judge

OPINION

Plaintiffs Ad Hoc Metals Coalition and National Federation of Independent Business brought these actions pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, seeking judicial review of a final rule promulgated by the Environmental Protection Agency that lowered the reporting thresholds for lead and lead compounds. The Court has before it a motion by plaintiffs to supplement the administrative record with extra-record documents, alleging that the record certified by EPA on August 31, 2001 is an incomplete record on the rule at issue.

I. BACKGROUND

On January 5, 1999, EPA announced a proposal to make certain additional persistent, bioaccumulative, toxic chemicals ("PBT chemicals") reportable under EPCRA and to lower the reporting thresholds for a number of PBT chemicals ("PBT Rule"). See 64 Fed. Reg. 688 (Jan. 5, 1999). Before finalizing the proposed PBT Rule, EPA issued a separate proposed rule — the TRI lead rule at issue in the case before the Court — suggesting a reporting threshold of just 10 pounds per year for lead and lead compounds. See 64 Fed. Reg. 42,222 (Aug. 3, 1999). In accordance with the Administrative Procedure Act, EPA published the proposed TRI lead rule in the Federal Register and solicited comments on the issue. See 5 U.S.C. § 553 (4)(b-c); Def. Opp. at 5. The comment period was extended twice, finally ending on December 16, 1999, after the receipt of over 800 comments. See Def. Opp. at 5. Although EPA received many comments questioning its scientific methodologies, the final rule, which set the reporting threshold for lead at 100 pounds per year (up from the originally proposed 10 pounds per year), was promulgated on January 17, 2001. See 66 Fed. Reg. 4500 (Jan. 17, 2001). This new threshold reflected a significant decrease from the existing standards set under EPCRA, which set reporting amounts at 25,000 pounds per year for those manufacturing or processing lead or lead compounds and 10,000 pounds per year for those using lead or lead compounds. See 42 U.S.C. § 11023 (f)(1). EPA justified the change on the ground that "lead and lead compounds are PBT [persistent, bioaccumulative, toxic] chemicals." 66 Fed. Reg. at 4501.

On April 10, 2001, Ad Hoc Metals Coalition ("Ad Hoc Metals" or the "Coalition"), a coalition of trade associations whose members will be required to comply with the new rule, filed this challenge to the TRI lead rule. National Federation of Independent Business ("NFIB"), a small business lobbying group, filed its complaint on April 27, 2001. The cases subsequently were consolidated. EPA filed its certified administrative record on August 31, 2001, and plaintiffs filed their motion to supplement the administrative record on November 30, 2001.

II. DISCUSSION

A. Standard of Review

In cases brought under the APA, the Court's review is confined to the administrative record. See Community for Creative Non-Violence v. Lujan, 908 F.2d 992, 997 (D.C. Cir. 1990); Edison Elec. Inst. v. OSHA, 849 F.2d 611, 617-18 (D.C. Cir. 1988). Review of agency action "is to be based on the full administrative record that was before the [agency] at the time [it] made [its] decision." Citizens to Preserve Overton Park Inc. v. Volpe,

401 U.S. 402, 420 (1971). See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) ("The administrative record includes all materials "compiled' by the agency . . . that were before the agency at the time the decision was made.") (internal quotation marks and citations omitted). In certain limited circumstances, however, a court may permit supplementation of the administrative record when such supplementation is necessary to provide a fuller explanation of the agency's decision. See, e.g., James Madison Ltd. v. Ludwig, 82 F.3d at 1095; Beach Communications, Inc. v. FCC, 959 F.2d 975, 987 (D.C. Cir. 1992); Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989); Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984). In conducting a thorough review, a court also may find it necessary to consider explanations regarding the state of the original record and decision, although it may not entertain post hoc rationalizations where no rationale was set forth before. See Carlton v. Babbitt, 900 F. Supp. 526, 531 (D.D.C. 1995). Supplementation of the administrative record has been found to be appropriate, inter alia, when "the agency failed to consider factors which are relevant to its final decision" or when "an agency considered evidence which it failed to include in the record." Esch v. Yeutter, 876 F.2d at 991.*fn1

B. Analysis

Plaintiffs seek to supplement the administrative record with three categories of documents: (1) documents contained in the public docket for the TRI lead rule but omitted by EPA in the certified index, principally the transcript of a professional workshop held on January 19, 2000 and sponsored in part by EPA; (2) documents prepared by other government agencies as part of the required interagency review of the TRI lead rule; and (3) internal EPA communications disclosed by EPA in response to plaintiffs' Freedom of Information Act request. According to plaintiffs, EPA's purposeful omission of these documents — documents adverse to EPA's rulemaking decision with respect to the TRI lead rule — leaves the Court with a one-sided and incomplete record. See Plaintiffs' Motion to Supplement Administrative Record at 9 ("Pl. Mot."). Plaintiffs contend that because these documents were an "integral part of the rulemaking," they should be added to the administrative record to "ensure a full and fair review." Id. at 3.

In response, defendants argue that the administrative record is complete and that there is no need to supplement it with documents critical of the TRI lead rule because the record is replete with documents criticizing EPA's position and the scientific bases for the TRI lead rule. See Def. Opp. at 2. In addition, defendants contend that without evidence from plaintiffs that EPA in fact relied on the documents at issue, there is no need to supplement the record when it already contains ample documentation of EPA's reasons for acting as it did. Id. at 11-12. The Court finds that EPA in fact did consider several of the documents that plaintiffs have identified and that the record should be ...


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