In a majority decision, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit agreed with environmental groups who had complained that the EPA had failed to act upon their 2009 petition to revise federal lead-based paint and dust-lead hazard standards. According to the majority, after granting the plaintiffs’ petition, the Agency has given no indications that a formal rule is imminent. In the court proceedings, the EPA said it needed 4 to 6 years to complete a rule. Given that it has been 8 years since the Agency granted the petition, the majority said the Agency’s request for that much additional was unreasonable. Accordingly, the majority ordered the EPA to produce a proposed rule within 90 days of the court’s opinion and a final rule within 1 year of the proposal. The majority added that the EPA can get additional time if it provides the court with “new information” that shows that it needs it.
Obsolete standards
Both the petitioners and the majority point to a substantial amount of scientific evidence indicating that the lead-based paint and dust-lead standards are in need of revision. For example, 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) acknowledged that there is no known safe blood lead level. The CDC determined that 5 micrograms per deciliter (µg/dL), or half of EPA’s target level, should be sufficient to trigger a public health response. The American Academy of Pediatrics has said that the current dust-lead hazard standards allow some 50 percent of all children to have a blood lead level above the level of concern and that EPA’s current standards are obsolete.
In their petition, the groups asked the EPA to use its rulemaking authority to “more adequately protect … children,” specifically by lowering the dust-lead hazard standards to 10 µg per square foot for floors and 100 µg per square foot for window sills, and to lower the standard for lead-based paint to 0.06 percent lead by weight.
After a notice and comment period on the petition, the EPA sent the petitioners a letter on October 22, 2009, “grant[ing] [their] request” for a rulemaking, though without a commitment to a specific rulemaking outcome (e.g., adoption of the standards sought by the petitioners) or a specific date for promulgation of the rule. The EPA noted that because it shared jurisdiction with the Department of Housing and Urban Development (HUD) over lead-based paint, it would work with HUD on that aspect of the petition. This letter is the last direct communication any of the petitioners received from the EPA before their filing a complaint with the court.
Work was proceeding
The majority notes that the Agency has worked on possible revisions. For example, in 2010, the EPA formed a Science Advisory Board (SAB) Lead Review Panel to provide advice on the process. The EPA sent the panel a proposed methodology for dust-lead hazard standards in June 2010 and soon received comments noting that the approach was reasonable. In November 2010, the EPA sent the panel an updated proposed methodology, which the SAB Panel again signed off on. In 2011, the EPA performed a literature review, which determined that technology was developed and feasible for detecting lower levels of dust lead. The EPA also coordinated with HUD to develop a survey of target housing to determine whether lower lead clearance levels were feasible.
Agency says it met the requirements
Basically, EPA’s response to the complaint is that it has already done everything it is required to do by “begin[ning] an appropriate proceeding.” In EPA’s view, that is the only commitment to the petitioners the agency made when it granted the August 2009 petition.
But the majority responds that the 2009 petition asked the EPA to engage in rulemaking to lower the lead standards. The Agency told the court that it estimated that a proposed rule might be ready to be issued in 2021 and that a final rule could come in 2023.
Relevant statutes
Petitioners point to two statutory frameworks they contend create a duty for the EPA to act. First, they argue there is a clear duty under the Toxic Substances Control Act (TSCA) and the amendments to it from the Paint Hazard Act. Second, they argue that the Administrative Procedure Act (APA) places a clear duty on the EPA to take final action on their 2009 petition.
The majority agreed that these two statutes compelled the EPA to act.
Regarding TSCA, the majority said that the statutory framework clearly indicates that Congress did not want the EPA to set initial standards and then walk away. Rather, the majority states, 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.”
Under the APA, the majority states that federal agencies must conclude a matter presented to it within a “reasonable time.”
“This has been interpreted to mean that an agency has a duty to fully respond to matters that are presented to it under its internal processes,” the majority states. “The Petitioners’ 2009 petition is such a matter.”
Negotiations with petitioners disavowed
The majority concludes:
“We are mindful of the need for EPA to issue a well-conceived rule, and not merely a rule, and that new issues may arise during a notice and comment period that demand further study; we are also mindful that we lack expertise in fashioning timetables for rulemaking. We must observe, however, that EPA has already taken eight years, wants to delay at least six more, and has disavowed any interest in working with petitioners to develop an appropriate timeline through mediation. We are also mindful of the severe risks to children of lead-poisoning under EPA’s admittedly insufficient standards.”
The majority’s opinion in Community Voice et al. v. EPA is here.