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Judge Orders the EPA Back to the Drawing Board Over Lead Standards

Hazard standards for the lead found in dust from lead paint --- and crucial definitions on what constitutes lead-based paint in the first place --- are outdated and need revisiting.

(CN) --- The U.S. Environmental Protection Agency’s current standards regarding the dangers of exposure to deteriorating lead paint are flimsy to stand and require some serious reworking, the Ninth Circuit ruled Friday.

The ruling follows a lengthy legal battle between the EPA and a number of environmental advocacy groups over the current hazard standards linked to lead exposure from paint. For decades, lead paint was used in homes, schools and other public works across the country. Lead-based paint was ultimately banned in the 1970s when it became clear how toxic the paint chips and peelings are for children, though millions of older structures containing lead paint still stand today.

While the EPA has established a number of guidelines to deal with this problem, such as setting standards on how much lead can exist in dust and soil, many say the standards are lax --- and have taken the agency to court multiple times to challenge them.

In the most recent installment of the legal saga, a collection of environmental organizations sued the EPA in 2019 claiming it tolerates dangerously high levels of exposure and were nearly 55 times less protective than the standards used by other agencies.

The lawsuit resulted in a sharp rebuke by U.S. Circuit Judge Mary Schroeder. In a 27-page ruling, Schroeder noted the EPA has not updated its base definition of what lead paint even is --- despite a previous court order directing it to do so. Schroeder said much has changed in our knowledge of lead-based paint and the dangers it poses, and while the court had instructed the EPA to update the definitions four years ago, the agency has continued to drag their feet.

“Despite our clear directive, the EPA has left the definition unchanged,” Schroeder, a Jimmy Carter appointee, wrote. “It blames its inaction on ‘significant data gaps,’ a justification we conclude is arbitrary and capricious. A key element of rulemaking is the collecting of relevant information. Courts have recognized that an agency cannot rely on uncertainty as an excuse for inaction.”

She condemned the EPA’s 2019 rule changes for lead paint exposure, in which the Trump administration lowered the threshold on how much lead could be in dust before it became a health risk. Schroeder found this change was done without properly considering other crucial dust-lead clearance factors.

The agency also dropped the ball on its management of lead found in the ground itself. Lead can seep into the ground and contaminate the soil, presenting obvious risks to children looking to play in the dirt outside their homes. This led Congress to task the EPA with setting standards on the amount of lead that can exist in the soil.

But the EPA has not updated these standards in two decades, and under the standards laid out in 2001, the EPA allows for up to 5% of children to develop unsafe levels of lead in their systems. Schroeder railed against this woefully outdated metric, noting there is no safe amount of lead and ordering the EPA to make its standards reflect that reality.

Johnathan J. Smith, an attorney for Earthjustice which spearheaded the most recent lawsuit, said it is clear the country needs stricter lead standards in order to protect its children and is hopeful Friday's ruling helped make that clear.  

“We’re grateful that the Ninth Circuit determined the EPA’s weak standards violate the law and failed to protect children,” Smith said in a statement. “There is no safe level of lead exposures for children. Strengthening the standards will protect millions of children from exposure to dangerous levels of lead dust at their homes and schools.”

Representatives for the EPA did not immediately respond to request for comment.

Senior U.S. District Judge Lawrence Piersol, a Bill Clinton appointee sitting by designation from the District of South Dakota, joined Schroeder's opinion. But U.S. Circuit Judge N. Randy Smith, a George W. Bush appointee, wrote in a 30-page dissent the majority ignored "rules of statutory construction and our standard of review for EPA actions."

"The United States Environmental Protection Agency is not charged by Congress to set lead-dust hazard standards to eliminate any adverse human health effects. Instead, Congress charged EPA to consider all factors (including environmental, economic, social, and health) in setting the lead-dust hazards standards," Smith wrote. "Following
Congress’s mandate and in accordance with our 2017 writ, EPA enacted its 2019 rule. EPA acted within its discretion
in lowering the dust-lead hazard standard, which standard was reasonable and supported by the administrative

"Further, EPA’s decision not to include the soil-lead hazard standards in the 2019 rule was not arbitrary and capricious or in violation of the 2017 writ," he added.

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Categories / Appeals, Health

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