EPA, Housing Groups Defend Lead Paint Standard to 9th Cir.

June 23, 2020, 5:22 PM

The Environmental Protection Agency acted reasonably when it decided not to tighten the definition of “lead-based paint,” the National Association of Home Builders and other housing groups told the Ninth Circuit, echoing a recent filing by the EPA.

The agency hewed to Congress’s intent to create “a cost-effective, workable system” for reducing actual hazards in the Toxic Substances Control Act, the trade associations said in a friend-of-the-court brief filed Monday.

The briefs come in a case by Sierra Club and other environmental groups challenging the EPA’s July 2019 hazard standards for “dust lead,” which include the lead paint definition. The standards are too lax to protect families, the environmental groups said. The rule also fails to adequately lower the dust lead clearance level, which is the amount of lead permitted after cleanup, to match the new standard, they said.

The EPA acted to do that June 17 when it proposed lowering the post-renovation amount of lead permitted in floor and windowsill dust to the level of the hazard standards. Critics say that proposal also sets limits too high.

Meanwhile, the EPA characterizes the suit, in the U.S. Court of Appeals for the Ninth Circuit, as insisting that it “should have established dust-lead hazard standards that eliminate all risk of adverse human health effects.”

“That is not what TSCA requires,” the agency said in its June 15 reply brief. “Nor is it possible to accomplish. Instead, EPA properly evaluated the amount of risk reduction that potential dust-lead hazard standards could provide, taking into account the health effects of potential standards, as well as the possible barriers to implementing those standards,” it said.

The housing associations supported the lack of action on the lead-based paint definition. The EPA “lacks sufficient information to justify amending the definition, and any such amendment would affect other regulatory regimes and could have unintended consequences,” including testing difficulties, the groups said. The NAHB, the Window & Door Manufacturers Association, the National Multifamily Housing Council, and the National Apartment Association submitted the brief.

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.

Earthjustice represents the environmental groups.

The Department of Justice represents the EPA.

Wiley Rein LLP submitted the amicus brief on behalf of the housing groups.

The case is A Community Voice v. EPA, 9th Cir., No. 19-71930, amicus brief 6/22/20.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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