Federal Appeals Court Orders EPA to Update Lead Paint Rules in 90 Days

Wednesday, December 27, 2017

The San Francisco-based Court of Appeals for the 9^th Circuit has ordered the Environmental Protection Agency to revise its rule regulating dangerous levels of lead in paint and dust, which has not been revised since 2001. The court ruling mandated the EPA propose a new rule within 90 days and make a final rule within a year after that.

In a majority decision, the court determined that the EPA has taken too long to act on a 2009 petition from health and environmental groups who asked the EPA to “more adequately protect children.” The EPA told the court it would need an additional four to six years to develop a lead paint rule.

“EPA fails to identify a single case where a court has upheld an eight-year delay as reasonable, let alone a fourteen-year delay, if we take into account the six more years EPA asserts it needs to take action,” Judge Mary Schroeder wrote on behalf of herself and Judge Randy Smith.

The court majority agreed with the petitioners that two statutory frameworks create a duty for the EPA to act. The first statute is under the Toxic Substances Control Act (TSCA) and its amendments from the Paint Hazard Act. The court majority stated, Congress intended that the Agency “engage in an ongoing process, accounting for new information, and to modify initial standards when necessary to further Congress’s intent: to prevent childhood lead poisoning and eliminate lead-based paint hazards.” The second statute is under the Administrative Procedure Act (APA), which requires federal agencies to conclude a matter presented to it within a “reasonable time.” This matter was presented by the petitioners in 2009 according to the majority.

The court’s decision was also based on a substantial amount of scientific evidence indicating that lead-based paint and dust-lead standards need revision. Sources of scientific evidence include:

• In 2007, EPA's Clean Air Scientific Advisory Committee informed the Agency that the dust-lead hazard standards were "insufficiently protective of children's health."
• In 2012, the Centers for Disease Control and Prevention (CDC) said there is no known safe level of lead that can enter the bloodstream.
• The CDC determined that 5 micrograms per deciliter (half of the EPA's target level) should trigger a public health response.
• The American Academy of Pediatrics has said that the current dust-lead hazard standards allow about 50 percent of all children to have blood lead levels above the level of concern and that EPA's current standards are obsolete.

Eve C. Gartner, a staff attorney for Earthjustice who helped argue the case on behalf of groups pushing for tougher standards said, “This is going to protect the brains of thousands of children across the country. It’s going to mean that children that otherwise would have developed very elevated blood lead levels will be protected from the damage associated with that, assuming E.P.A. follows the court order.”

According to an EPA spokesperson, the agency is reviewing the court’s decision. The spokesperson also pledged that officials would “continue to work diligently on a number of fronts to address issues surrounding childhood lead exposure from multiple sources.”

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