A Community Voice v. United States Environmental Protection Agency, No. 19-71930 (9th Cir. 2021)Annotate this Case
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.