A divided Ninth Circuit said Friday the U.S. Environmental Protection Agency improperly set a lead dust hazard standard that would still harm human health and castigated the federal government for its “lengthy, not very hopeful, saga” of combating lead paint’s dangers.

The majority sided with environmental advocates and told the EPA to try again to craft an appropriate standard. The court blamed the EPA for inaction and ignoring Congress’ mandate that the standard must reflect only the health risks from lead even though it is currently understood that no amount of lead in the blood is safe.

Lead is highly toxic to humans and can cause brain damage and developmental delays in children, according to federal agencies. Dust from lead-based paints can contaminate homes and is a significant culprit for how children ingest the substance, so the EPA is tasked with publishing what’s known as dust-lead hazard standards, levels at which “lead contaminated dust in buildings pose a danger to human health.”

A coalition of environmental groups and community organizations, including the Sierra Club, challenged the EPA’s 2019 rule establishing a standard, arguing the measure didn’t sufficiently protect health and alleging the EPA violated the Toxic Substances Control Act and Administrative Procedure Act. 

That 2019 rule was written in response to the Ninth Circuit’s 2017 order forcing the EPA to update lead-based paint related standards. The majority at the time said the EPA unreasonably delayed action on environmentalists’ rulemaking petition.

The rule changed the dust lead hazard standards for floors from 40 micrograms per square foot to 10 micrograms per square foot and for windowsills from 250 micrograms per square foot to 100 micrograms per square foot, referred to as the 10/100 standards.

According to the opinion, the EPA set the 10/100 standards by considering “outside factors bearing on implementation, such as current testing capabilities.” 

Practical considerations about how the standard is implemented are another matter, but when developing a hazard standard, health is the concern.

Law360: https://www.law360.com/publicpolicy/articles/1384971/9th-circ-says-epa-must-revisit-lead-related-standard

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