A Community Voice v. United States Environmental Protection Agency, No. 19-71930 (9th Cir. 2021)
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The Ninth Circuit granted a petition for review challenging the EPA's Final 2019 Rule, which was a response to this court's 2017 Writ of Mandamus directing the EPA to respond to the need for updated lead-based paint hazard standards. Petitioners contend that the 2019 Rule violated statutory provisions of the Residential Lead-Based Paint Hazardous Reduction Act (PHA) that are codified in Title IV of the Toxic Substances Control Act (TSCA), as well as rulings of this court in the Writ.
The panel concluded that 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. Furthermore, the EPA has continually refused to update the lead-based paint definition on the ground that it lacks sufficient information. The panel concluded 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. The panel explained that 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. 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. Consistent with its holding that the EPA must reconsider the DLHS, the panel directed the EPA to reconsider the dust-lead clearance levels as well in the same proceeding.
Court Description: Toxic Substances Control Act. Granting a petition for review, the panel remanded without vacatur the Environmental Protection Agency (“EPA”)’s Final 2019 Rule, which was a response to this court’s 2017 Writ of Mandamus directing the EPA to respond to the need for updated lead-based paint hazard standards. Petitioners contended that the 2019 Rule violated statutory provisions of the Residential Lead-Based Paint Hazardous Reduction Act (“PHA”) that are codified in Title IV of the Toxic Substances Control Act (“TSCA”), as well as rulings of this court in the Writ. The panel held that there was a Congressional mandate to establish lead-based paint standards, and the EPA was charged with setting and updating three separate hazard standards: the dust-lead hazard standards (“DLHS”), the * The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation. A COMMUNITY VOICE V. USEPA 3 paint-lead hazard standards, and the soil-lead hazard standards. Concerning DLHS, which relate to household dust, the panel held that the EPA must reconsider the dust-level health standards. The panel held that the 2019 Rule lowered the lead hazard level but not to a level sufficient to protect health as Congress directed, because the EPA looked to factors in addition to health risks. The EPA’s interpretation of its statutory authority was contrary to the statutory language and express congressional purpose, as well as the Supreme Court’s interpretation of parallel language in other statutes and the EPA’s own prior interpretation on this provision. Concerning the lead-based paint definition, the panel held that the EPA failed to meet its ongoing duty to account for new information and modify initial standards when necessary to further Congress’ intent to eliminate lead-based paint hazard. The panel held further that the EPA’s failure to do so, despite the clear body of evidence commanding a new definition, violated Title IV of the TSCA. In addition, the EPA’s failure to provide any sensible explanation for its delay made the inaction arbitrary and capricious. Concerning the soil-lead hazard standards, the panel held that the EPA’s existing soil-lead hazard standards did not identify all levels of lead in soil that are dangerous to human health, and thus was contrary to Title IV of the TSCA. The panel held that the EPA had an ongoing duty to update the standards, and it could not recite “scientific uncertainty” to evade its statutory duty to update regulations. The panel concluded that the EPA’s decision to abandon the soil-based hazard standards for the last two decades violated Title IV of the TSCA. 4 A COMMUNITY VOICE V. USEPA Consistent with its holding that the EPA must reconsider the DLHS, the panel directed the EPA to reconsider the dust- lead clearance levels as well in the same proceeding. Both sets of standards are interrelated and must work together to effectuate Congress’ intent to end the hazards of lead paint in children. Dissenting, Judge N.R. Smith would deny the petition for review. He would hold that the statutory scheme of the TSCA and PHA authorized the EPA to consider both health and nonrisk factors in setting the DLHS; the EPA did not act arbitrarily or capriciously in setting those levels; and the EPA did not violate the 2017 Writ in declining to set soil-based hazard standards.
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