A Cmty. Voice v. U.S. Envtl. Prot. Agency

• Citation: 997 F.3d 983
• Decision Date: 14 May 2021
• Docket Number: No. 19-71930,19-71930
• Parties: A COMMUNITY VOICE; California Communities Against Toxics; Healthy Homes Collaborative ; New Jersey Citizen Action; New York City Coalition to End Lead Poisoning; Sierra Club; United Parents Against Lead National; We Act for Environmental Justice, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Michael S. Regan, Administrator, United States Environmental Protection Agency, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

997 F.3d 983

A COMMUNITY VOICE; California Communities Against Toxics; Healthy Homes Collaborative ; New Jersey Citizen Action; New York City Coalition to End Lead Poisoning; Sierra Club; United Parents Against Lead National; We Act for Environmental Justice, Petitioners,

v.U.S. ENVIRONMENTAL PROTECTION AGENCY; Michael S. Regan, Administrator, United States Environmental Protection Agency, Respondents.

No. 19-71930

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 27, 2020 San Francisco, California

Filed May 14, 2021

OPINION

SCHROEDER, Circuit Judge:

INTRODUCTION

This case is part of what is becoming a lengthy, not very hopeful, saga of our nation's efforts to deal with the dangers of lead paint that remain in older housing, in soil, as well as in the residue of earlier clean ups. Before us is the Environmental Protection Agency's Final 2019 Rule, promulgated after this court issued a Writ of Mandamus in 2017 in response to years of inaction by the Environmental Protection Agency (EPA). In re A Community Voice , 878 F.3d 779 (2017).

When Congress passed the Residential Lead-Based Paint Hazard Reduction Act (PHA) in 1992, our government's attempts to deal with the dangers of the paint appeared to ramp up. Congress acted in the wake of alarming scientific findings that American children suffer from widespread low-level lead poisoning

. Nearly nine years later, in 2001, the EPA issued regulations that included lead-based paint hazard standards, but by 2009 it had become clear those standards were not adequate and that the EPA was being too slow to react. The situation prompted several organizations, many of whom are also Petitioners here, to file a rulemaking petition asking the EPA to update the dust-lead hazard standards, dust-lead clearance levels, and the definition of lead-based paint (2009 Petition).

The EPA granted the 2009 Petition, but nearly eight years elapsed without any rulemaking. Petitioners therefore sought a directive to the EPA from this court, and in 2017 we issued the writ of mandamus (Writ) in the face of the EPA's continued failure to act. See id.

The 2019 Rule challenged here is the EPA's response to the Writ. The Rule, however, does not update the definition of lead-based paint, nor does it update the dust-lead clearance levels or soil-lead hazard standards. It lowers the standards for dust-lead hazards, but to an extent less than what the Petitioners say the law requires. The Petitioners contend the 2019 Rule violates important statutory provisions of the PHA that are now codified in Title IV of the Toxic Substances Control Act (TSCA IV), as well as rulings of our court in the Writ.

Petitioners’ standing is not challenged. Nor is our jurisdiction, because the TSCA IV gives the Courts of Appeals exclusive jurisdiction to review final rules. 15 U.S.C. § 2618(a)(1)(B).

The most serious issue of statutory interpretation in the case concerns the definitions of the lead-based paint hazard standards and whether they comply with the TSCA's requirement that the EPA identify "any condition" of lead in dust, paint, and soil that would result in "adverse human health effects as established by the administrator under [TSCA IV]." 15 U.S.C. §§ 2683, 2681(10). Petitioners contend that the TSCA requires the EPA to set the standards on the basis of the EPA's assessment of health risks and without regard to factors such as cost. The EPA's position is that, although this provision of the TSCA refers only to health effects, the EPA may also look to other factors, having to do with feasibility and efficacy. It reasons that because it is now well established that any level of lead in the blood leads to adverse health effects, the statutory language gives the EPA discretion to select hazard standards it wishes to enforce, rather than ones aimed at eliminating health risks. Congress, however, said that the EPA was to look at risks to health. We interpret the statute accordingly. The current dust-lead hazard standards, lead-based paint definition, and soil-lead hazard standards do not identify all levels of lead that lead to adverse human health effects and therefore violate the TSCA.

Petitioners also contend that the EPA's failure to update the definition of both lead-based paint and the soil-lead hazard standards is arbitrary and capricious. The EPA has continually refused to update the lead-based paint definition on the ground that it lacks sufficient information. We conclude that its failure to explain why such lack of data has persisted for more than a decade, in the face of mounting evidence of lead-based paint dangers, is arbitrary and capricious. See Greater Yellowstone Coal., Inc. v. Servheen , 665 F.3d 1015, 1028 (9th Cir. 2011). The failure to update the soil-lead hazard standards is unjustified in the face of the now undisputed evidence that there is no safe level of lead exposure.

The EPA did not deal with dust-lead clearance levels in this 2019 Rule because it has referred the subject to separate rulemaking. No record of that proceeding is before us. Because the dust-lead clearance levels concern the lead content of dust after abatement of dust-lead hazards, the dust-lead hazard standards (DLHS) and the clearance levels are interrelated. Since, as a result of this proceeding, we have ordered the EPA to reexamine the DLHS, the same fate must await the clearance levels.

Before discussing the standards the EPA did promulgate within this Rule, we briefly review the history of federal lead paint regulation, a history that many might characterize as sluggish. Our earlier opinion contains a fuller summary.

BACKGROUND AND SUMMARY

Lead-based paint was banned for consumer use in 1978, but it was not until more than a decade later, in 1992, that Congress enacted the Residential Lead-Based Paint Hazard Reduction Act (PHA). Pub L. 102-550, 106 Stat. 3672. The Act amended the TSCA adding Title IV entitled "Lead Exposure Reduction."

15 U.S.C. §§ 2681 – 92. TSCA IV delegated to the EPA authority to establish lead-based paint hazards. Congress also established the original definition of lead-based paint with reference to the level of lead it contained, and provided the EPA could establish future levels that would apply in all locations other than older housing, where standards were to be set by the U.S. Department of Housing and Urban Development. Id. § 2681(9). Congress prescribed a rapid, 18-month timeline for EPA's promulgation of lead-based paint hazards, id. § 2683, but the EPA did not finalize standards until 2001. 40 C.F.R. § 745.65 (2001) (amended Jan. 6, 2020). These standards were believed by the EPA, at the time, to be sufficient to maintain a safe blood lead level (BLL) in children.

Within a few years, however, scientific knowledge had progressed to the point where it was generally understood that there is no safe level of lead, so that the previous lead-based paint standards were inadequate. Yet the EPA did not act. By 2009, several of the entities that are Petitioners before us became concerned with the EPA's inaction and filed an administrative petition with the EPA asking for rulemaking. They urged the EPA to lower the DLHS and associated dust-lead clearance levels from 40 µg/ft² of surface area to 10 µg/ft² or less for floors and from 250 µg/ft² of surface area to 100 µg/ft² or less for windowsills. The 2009 Petition also asked the EPA to broaden the definition of lead-based paint to include all conditions that were then-known to be toxic. The 2009 Petition asked the EPA to "reduce the level of lead in paint that would define a lead-based paint from 0.5 percent by weight to 0.06 percent by weight, with a corresponding reduction in the 1.0 milligram per square centimeter standard."

The EPA granted the 2009 Petition and conducted some follow-up studies but took no rulemaking action. Petitioners then filed the mandamus action that resulted in our 2017 opinion. We there held the EPA had a duty to act and that it had unreasonably delayed in doing so. See In re A Community Voice , 878 F.3d at 779. We said that the EPA has a duty stemming from the TSCA "to 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." Id. at 784. We also recognized the EPA's duty stemming from the Administrative Procedures Act (APA) to fully respond to petitions for rulemaking in a reasonable amount of time. Id. at 786. We ordered the EPA to take action within 90 days of our opinion becoming final, and to promulgate a final rule within a year. Id. at 788.

The EPA in 2019 adopted the Final Rule that is before us, but addressing only the DLHS. The EPA lowered the DLHS to 10 µg/ft² and 100 µg/ft² for floors and windowsills, respectively (10/100 Standards). These match the levels requested in the 2009 Petition which had been submitted ten years earlier. In promulgating the 2019 Rule, the EPA acknowledged that its earlier, 2018, proposed rule had drawn many comments that a lower standard was needed to protect children's health, but the EPA nevertheless adopted the 2019 Rule as originally proposed.

The EPA now contends that, in promulgating a more lenient standard than that necessary to protect children's health, it properly took into consideration factors other than health, such as feasibility and efficacy. This gives rise to the primary issue of statutory interpretation that we must resolve in this proceeding. The TSCA IV requires the EPA to identify "any condition" of lead in dust, paint, and soil resulting in adverse human health effects.

15 U.S.C. § 2681(10). The EPA's position is that the statute grants it discretion to look to factors outside of adverse effects on health. Its interpretation, however, is not supported by the language of TSCA IV, or Congress's purpose in enacting its lead-based paint provisions, which are directed toward protecting children's...