SAN FRANCISCO (CN) – A divided Ninth Circuit panel on Wednesday ordered the U.S. Environmental Protection Agency to update its hazard standards for lead paint and lead dust in homes, saying the agency's foot-dragging endangers the health of young children.
The panel's majority ordered the EPA to issue a proposed rule updating the dust-lead hazard and lead-paint standards within 90 days and a final rule one year after that.
A group of public health petitioners asked for a writ of mandamus ordering the EPA to update the standards, following a petition the groups filed with the EPA in 2009. The EPA had agreed to review the petition but never revised the standards, arguing it wasn't obligated to do so.
"The 2009 petition ... did not petition EPA to begin a proceeding; it petitioned EPA to engage in rulemaking to lower the lead standards," Circuit Judge Mary Schroeder wrote for the majority.
The petition, filed by the Sierra Club, Healthy Homes Collaborative, New Jersey Citizen Action and United Parents Against Lead, requested a rulemaking to reduce the dust-lead hazard standards to one quarter of their current level for floors and less than half their current level for window sills. It also asked the EPA to modify the definition of lead-based paint to reduce lead levels from 0.5 percent to 0.06 percent by weight.
The petitioners said the EPA’s standards were outdated and dangerous. They pointed out that the childhood blood-lead level the EPA set in 2001 of 10 micrograms per deciliter – the level at which a public health response is triggered – was double the threshold set by the U.S. Centers for Disease Control and Prevention in 2012. They also cited a statement by the American Academy of Pediatrics that at the EPA’s current dust-lead hazard standard for floors, 50 percent of all children were estimated to have elevated blood-lead concentrations of 5 micrograms per deciliter or more.
By 2016, the EPA still hadn't updated the dust-lead hazard standards. So the petitioners and four other groups asked for a writ ordering the EPA to do so. They argued the agency was obligated to take action by the Toxic Substances Control Act, the Residential Lead-Based Paint Hazard Reduction Act and the Administrative Procedure Act, and that it had unreasonably delayed doing so.
The EPA countered it had fulfilled its legal obligations by agreeing to review the petition, and that it had no obligation to update the standards.
On Wednesday, the Ninth Circuit panel found the EPA is in fact obligated under all three statutes to update the standards in light of its own research showing the current ones are too lax to protect children's health, as well as findings from the CDC and the American Academy of Pediatrics.
"This statutory framework clearly indicates that Congress did not want EPA to set initial standards and then walk away," Schroeder wrote.
The Justice Department, which represents the EPA, declined to comment Wednesday.
But in a dissent, Circuit Judge N. Randy Smith said the EPA isn’t obligated to do anything beyond grant the petitioners' request for a review – a shift from the position he took during a June hearing where he encouraged the EPA's lawyers to work out a timeline with the petitioners for updating the standards.
"Examining the language of these statutes, they do not mandate a duty to act; they merely outline the 'grand goals' of Congress," Smith wrote in his dissent, adding "the language of the TSCA evidences that Congress made further regulation (after 1994) discretionary."
Schroeder, however, had cutting words for both Smith and the EPA.
"We also note that failing to find a duty would create a perverse incentive for the EPA," she wrote. "Under the EPA’s view, were it not to respond to the petition at all, this court could grant mandamus and compel a time table for rulemaking, yet if EPA 'grants' the petition it can then delay indefinitely, without any recourse to the petitioners. This would allow the EPA to grant petitions for rulemaking and take no action in order to avoid judicial review.
"The dissent’s position that the EPA is under no duty to act leaves the agency unaccountable and our children unsafe."
U.S. District Judge Lawrence L. Piersol from the District of South Dakota also sat on the panel.
Justice Department attorney Rochelle Russell represents the EPA.
Hannah Chang, an attorney with environmental law firm Earthjustice, represents the petitioners. She could not be reached for comment.
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