The Environmental Protection Agency has failed to update the definition of lead-based paint, leaving children at risk of lead poisoning, environmental and community groups will argue before the Ninth Circuit Tuesday.
The EPA issued a final rule in July 2019 that included the definition and lowered the level at which dust containing lead is considered a hazard, but those dust-lead hazard standards are still too high to protect the public, the Sierra Club, California Communities Against Toxics, and other environmental groups say in their petition for review in the U.S. Court of Appeals for the Ninth Circuit.
And the agency undermined those standards by failing to update the amount of lead allowed after a clean-up. This failure means a clean-up could be considered successful even if the dust-lead that remains is a hazard, in violation of the Toxic Substances Control Act, the groups say.
It’s “impossible to eliminate all dust-lead conditions that could adversely affect human health,” the EPA argues. The TSCA doesn’t require the EPA to determine the “safe” level of dust-lead, paint-lead, or soil-lead for which there is “no risk of adverse health effects,” the agency said in its reply brief.
Housing groups filed their own brief in support of the EPA, saying the agency lacked sufficient information to make any change to the definition of lead-based paint.
Any change to the definition would impact “virtually every lead paint law and regulation in place,” according to the National Association of Home Builders of the United States, the National Apartment Association, and two other groups. The change could affect work practice standards, renovation and repair activities, and construction, according to the housing groups.
Such a major disruption to the industry could “cause more harm to children than good,” they argue. If the EPA adopted an unworkable definition of lead-based paint, it could delay action to address the homes with the greatest potential for lead exposure, according to the brief.
Earthjustice represents the environmental and community groups. The Department of Justice represents the federal government.
Wiley Rein LLP submitted the amicus brief on behalf of the housing groups.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
The case is Cmty. Voice v. EPA, 9th Cir., No. 19-71930, 10/27/20.