Ninth Circuit Orders EPA to Update Standards for Lead-Based Paint and Dust Hazards

Beveridge & Diamond PC

Beveridge & Diamond PC

The Environmental Protection Agency (EPA) must propose an update of its lead-based paint and dust hazard standards by March 27, 2018, according to a court order.  The current standards were promulgated in 2001, and have never been updated since then.  Title IV to the Toxic Substances Control Act (TSCA) requires EPA to keep these standards updated, since they play critical roles in a number of the lead-based paint programs, including lead hazard disclosure in real estate transactions and lead hazard abatement activities.

The court order came in the form of a mandamus granted by the United States Court of Appeals for the Ninth Circuit on December 27, 2017.[1]  Several environmental groups had requested the court to order EPA to update the lead paint and lead dust standards, after their administrative petition directed to EPA in 2009 resulted in no rulemaking.  The court ordered EPA to propose a rule within 90 days, and to finalize the rule within one year after the promulgation of the proposed rule.  EPA can only modify the deadlines if it provides new information to the court to justify an extension.

This alert provides an overview of TSCA Title IV programs and the potential significance of the two standards to be updated.  Title IV stakeholders, such as realty agents, the lead hazard assessment and abatement industry, and the home improvement industry, may want to monitor EPA’s upcoming lead-related rulemaking activities.  

Lead Hazard Standards under TSCA Title IV

Lead-based paint was widely used in the construction industry across the United States in the early decades of the 20th century.  In 1971, driven by concerns about lead poisoning, Congress passed the Lead-based Paint Poisoning Prevention Act,[2] which prohibited the use of lead-based paint.[3]  The federal government subsequently banned the use of lead-based paint and surface coatings in 1978.[4]  However, lead exposure hazards remain a potential concern for properties that were painted prior to the 1978 ban.[5]

Congress addressed the lead hazards in those legacy properties with the Residential Lead-Based Paint Hazard Reduction Act (Paint Hazard Act) in 1992.[6]  The Paint Hazard Act added Title IV to TSCA, authorizing EPA to promulgate lead hazard regulations.  Congress recognized that three media may contain lead hazards: lead-contaminated paint, lead-contaminated dust, and lead-contaminated soil.  Under section 403 of TSCA, Congress directed EPA to identify lead hazards in these media.  EPA was required to:

[w]ithin 18 months after the enactment of [Title IV of TSCA] . . . identify, for the purposes of this title, and the Residential Lead-Based Paint Hazard Reduction Act of 1992, lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil.[7]

Congress provided limited instruction regarding how EPA should identify the hazard for these contaminated media, except for a few descriptions of these concepts that are tied to lead contamination and adverse human health impacts.[8]  Furthermore, although Congress was silent on the dust-lead and soil-lead hazards, an initial numerical threshold for paint appeared in the definition of “lead-based paint” under TSCA section 401: “1.0 milligrams per centimeter squared or 0.5 percent by weight.”  Congress authorized EPA and the Department of Housing and Urban Development (HUD), another agency tasked with administering the Paint Hazard Act, to lower this standard within their respective jurisdictions.[9]

Despite the mandatory timeframe, EPA did not promulgate any hazard identification until 2001, when it published the paint, dust and soil lead hazard standards (2001 Hazard Standards).[10]  In the 2001 Hazard Standards, “lead-based paint hazard” refers to: “hazardous lead-based paint, dust-lead hazard or soil-lead hazard as identified in [40 C.F.R.] § 745.65.”[11]

EPA designated numerical benchmarks under 40 C.F.R. § 745.65 for both “dust-lead hazard” and “soil-lead hazard.”  The dust-lead hazard standards, which were later subject to the A Community Voice litigation, are 40 μg/ft2 for floors and 250 μg/ft2 for interior window sills in residential dwellings and child-occupied facilities. 

“Paint-lead hazard,” in contrast, has several alternative narrative definitions under 40 C.F.R. § 745.65, which are tied to either “lead-based paint” or “lead-based painted surface.”  Neither term is defined in the 2001 Hazard Standards.  During the 2001 rulemaking, EPA explicitly abandoned the proposal to set a threshold level for paint hazards.[12]  The paint hazard standard was, as a result, effectively built on the cutoff threshold in the definition of “lead-based paint” that Congress provided in section 401 of TSCA.  EPA has not separately lowered the threshold established by Congress in the Paint Hazard Act.  It settled on the same values in a few other TSCA Title IV regulations as well.[13]

Rulemaking Petition and Litigation

EPA did not revise the 2001 Hazard Standards after promulgating them.  In 2009, citizen groups filed a TSCA section 21 petition requesting EPA to change the dust hazard standards (to 10 μg/ft2 for floors and 100 μg/ft2 for window sills) and lower the threshold for lead-based paint (to 0.06 percent by weight),[14] citing evolving science allegedly showing that the existing hazard standards are insufficient to protect children’s health.[15]  EPA granted the request for rulemaking in October 2009, but did not issue any further response or propose a new rule.  The citizen groups filed a mandamus petition before the court in 2016, arguing that EPA unreasonably delayed the rule’s promulgation.[16]

In the A Community Voice decision, the Ninth Circuit held that EPA had a duty to modify the section 403 hazard standards under both TSCA Title IV and the Administrative Procedure Act (APA).  The court held that Congress intended the section 403 decision-making to be “an ongoing process” and that EPA under TSCA Title IV should “account for new information, and . . . modify initial standards when necessary to further Congress’s intent.”[17]  Alternatively, the court also held that because EPA granted the petition for rulemaking, it must “enter a final decision subject to judicial review . . . within a reasonable time” under APA.[18]  On either ground, EPA could not unreasonably delay the rulemaking process.  The court then found that EPA’s eight-year delay was not reasonable, and issued a mandamus.[19]

EPA represented in court that it could have a proposed rule by 2021 and a final rule by 2023.[20]  The court rejected the timeframe.  Instead, the court gave EPA 90 days to propose a new rule and another year to finalize the proposed rule.  EPA can only request a judicial modification of these deadlines if it can justify an extension.[21]

The Regulatory Significance of Section 403 Standards and the Ninth Circuit’s Decision

The A Community Voice decision is significant because section 403 standards are incorporated into a number of regulations under TSCA Title IV and the Paint Hazard Act.  Lower thresholds expand the scope of obligations under these programs.  

The Paint Hazard Act and TSCA Title IV delegated the authority to reduce and control lead hazards from legacy properties to multiple governmental agencies.[22]  Most notably, EPA must develop programs for:

  • Proper training and certification of “lead-based paint activities,” which are essentially lead assessment and abatement activities (under TSCA section 402).
    • EPA is also required to promulgate technical standards for lead-based paint activities, including laboratory analysis and characteristics of products used for lead-based paint activities (under TSCA section 405).
  • Disclosure of lead-based paint hazards, which has two components:
    • EPA must develop a lead hazard information pamphlet (under TSCA section 406(a)); and
    • EPA must require disclosure for renovation activities and sales and leases of pre-1978 target housing[23] with the pamphlet (under TSCA section 406(b) and Paint Hazard Act section 1018).[24]
  • Renovation and remodeling activities, for which training, certification, and disclosure are all required (under TSCA sections 402(c), 406(b)).

In addition, under section 404 of TSCA, EPA may also authorize state lead hazard programs for sections 402 and 406. 

HUD is authorized under the Paint Hazard Act to:

  • Evaluate and reduce lead-based hazards for pre-1978 federally-assisted or federally-owned housing (under the Paint Hazard Act sections 1012 and 1013);
  • Develop guidelines for these evaluation and reduction activities (under the Paint Hazard Act section 1017); and
  • Work with EPA to require disclosure of lead hazards for sales and leases of pre-1978 target housing (under the Paint Hazard Act section 1018).

Both EPA and HUD engaged in rulemaking after the enactment of the Paint Hazard Act.  The two agencies first collectively issued the sale and lease disclosure rule, under section 1018 of the Paint Hazard Act, in March 1996.[25]  After issuing this rule, the agencies parted and took two separate paths to rulemaking:

  • EPA promulgated its TSCA section 402 lead abatement rule in August 1996.[26] It also issued a renovation, repair and painting program rule (RRP rule) in 2008 pursuant to TSCA sections 402(c) and 406(b).[27]  EPA’s disclosure rule, RRP rule, and abatement rule are collectively set forth in 40 C.F.R. Part 745.  In addition to the federal regulation, forty-four jurisdictions across the U.S. have received EPA authorization to operate their own state programs (the section 404 jurisdictions). 
  • HUD first developed its Paint Hazard Act section 1017 guideline in 1995, and then replaced it with a second edition in 2012. In 1999, HUD released a comprehensive lead-safe housing rule, which addressed the requirements under sections 1012 and 1013 and incorporated the 1996 EPA-HUD sale and lease disclosure rule.[28] HUD’s disclosure rule and the lead-safe housing rule are collectively set forth in 24 C.F.R. Part 35.

TSCA section 403 hazards are referenced in a number of these programs.  For example:

  • Under the Paint Hazard Act section 1018 sale and lease disclosure rule, a seller or lessor of pre-1978 “target housing” must disclose known lead-based paint and lead-based paint hazards with warning statements.[29]
  • Under the TSCA section 402 rule, most lead-based paint activities must be performed by certified individuals. This includes, “abatement,” for example, which refers to “any measure or set of measures designed to permanently eliminate lead-based paint hazards.”[30]  In the 2001 Hazard Standards, EPA noted that “permanent elimination of lead-based paint, and dust or soil lead would not require the use of certified personnel unless lead-based paint hazards are present in those media.”[31]  Furthermore, any report produced after a risk assessment under the section 402 rule must include a description of identified lead-based paint hazards.[32]  Any occupant protection plan must also describe measures and procedures to protect the building occupants from exposure to lead-based paint hazards.[33]
  • In addition, in order to obtain EPA authorization for their section 404 programs, states and Indian tribes must demonstrate that their programs include standards for identifying lead-based paint hazards that are at least as protective as the federal standards.[34]

Therefore, a change in what constitute “lead-based paint hazards” could completely change the scope of obligations in the substantive rules above, and such changes may affect federal and state programs alike.

Changes in these compliance obligations under the lead programs can bring real-world impacts, as EPA does enforce the lead-based paint rules.  In both fiscal years 2016 and 2017, EPA completed over 100 enforcement actions under the RRP rule, the disclosure rule, and the abatement rule.  EPA imposed over $1 million in penalties in each of these two years.  In 2016, EPA settled with a major home improvement company for alleged violations of the RRP rule in renovation projects across several states.  The company agreed to pay $400,000 in civil penalties and implement a corporate-wide compliance system.  In 2017, a realtor in New York pled guilty to criminal violations of the lead disclosure rule, and is facing potential criminal penalties.

Next Steps

Following the A Community Voice decision, EPA will likely initiate the rulemaking process to update the hazard standards.  After the citizen groups filed their petition for mandamus, HUD updated its dust-lead hazard and clearance levels in a policy guidance document, effective April 1, 2017, which applies to grantees receiving HUD grants for lead hazard control and reduction.  The new HUD dust-lead hazard levels are 10 μg/ft2 for floors and 100 μg/ft2 for window sills, which match the levels requested in the EPA rulemaking petition and Ninth Circuit litigation.

Considering the Ninth Circuit decision and HUD’s action, business communities that engage in activities which have potential lead hazard implications, such as lead assessment, abatement, or cleanup, housing improvement or renovation, and realty transactions, should monitor and participate in EPA’s rulemaking actions in the coming months.

[1] In re A Community Voice, No. 16-72816 (9th Cir. Dec. 27, 2017) (A Community Voice). 

[2] Lead-based Paint Poisoning Prevention Act (LBPPPA), Pub. L. 91–695, 84 Stat. 2078 (1971).

[3] LBPPPA § 401; 42 U.S.C. § 4831.

[4] The Consumer Product Safety Commission (CPSC) administers the ban.  See 42 Fed. Reg. 44193 (Sept. 1, 1977); 16 C.F.R. § 1303.1.

[5] In EPA’s 2001 lead paint, dust, and soil standard (the update that was at issue in the Ninth Circuit case), EPA stated that lead-containing paint existed in “approximately 64 million homes.”  66 Fed. Reg. 1206, 1208 (Jan. 5, 2001).

[6] The Paint Hazard Act is Title X of the Housing and Community Development Act of 1992.  See Pub. L. 102–550, 106 Stat. 3672, 3897 (1992) (Paint Hazard Act). 

[7] TSCA § 403.

[8] See TSCA § 401(10)-(12).  Congress’s definition of “lead-based paint hazard” covers “lead-contaminated dust,” “lead-contaminated soil,” and certain “lead-contaminated paint,” that “would result in adverse human health effects.” These terms are not parallel with the language in section 403, which uses the overall term “lead-based paint hazard” rather than “lead-contaminated paint.”  Furthermore, the concept of “lead-contaminated paint” was not otherwise defined or used in the legislation.  Therefore, a question arose as to whether lead contamination and lead hazard are equivalent for the section 403 purpose.  Addressing this question, EPA in its 2001 paint, dust, and soil hazard standard decided to streamline its hazard classification into “paint-lead hazards,” “dust-lead hazards,” and “soil-lead hazards,” and equated these terms to “lead-contaminated paint,” “lead-contaminated dust,” and “lead-contaminated soil.”  66 Fed. Reg. 1206, 1214 (Jan. 5, 2001).  HUD faces the same problem from the similarly worded definitions in Paint Hazard Act section 1004.   It took an identical approach, also equating the concepts of “hazards” and “contamination” in its Guideline (see the Glossary in the Guideline).

[9] TSCA § 401(9).

[10] 66 Fed. Reg. 1206 (Jan. 5, 2001).

[11] 40 C.F.R. § 745.63 (definition of “lead-based paint hazard”).

[12] 66 Fed. Reg. at 1227. 

[13] See, e.g., 40 C.F.R. § 745.103 (definition of “lead-based paint” in the section 1018 sale and lease disclosure rule), 745.223 (definition of “lead-based paint” in the section 402 lead abatement rule).

[14] The 0.06 percent by weight standard matches the threshold in the CPSC regulation that was effective when the citizen groups filed the TSCA section 21 petition.  16 C.F.R. § 1301.1.   Not long after the petition, a new 0.009 percent by weight standard replaced the 0.06 percent standard in the CPSC regulation as Congress’s mandate in the Consumer Product Safety Improvement Act of 2008, Pub. L. 110-314, went into effect.  See 15 U.S.C. § 1278a(f)(1).

[15] In re A Community Voice, No. 16-72816, at 6-7 (9th Cir. Dec. 27, 2017).

[16] Id. at 8.

[17] Id. at 11.

[18] Id. at 12.

[19] Id. at 17.

[20] Id. at 9.   

[21] Id. at 19.

[22] In addition to HUD and EPA, whose authorities and programs discussed below, the Paint Hazard Act also required the Occupational Safety and Health Administration (OSHA) to regulate occupational exposure to lead in the construction industry.  Paint Hazard Act § 1031; 42 U.S.C. § 4853.  OSHA promulgated 29 C.F.R. § 1926.62 in response to this mandate.

[23] “Target housing” refers to most housing constructed prior to 1978, with exceptions.  TSCA § 401(17).

[24] The pre-renovation disclosure is within EPA’s sole jurisdiction under TSCA section 406(b).  The sale and lease disclosure requirement, on the other hand, is imposed by section 1018 of the Paint Hazard Act, not by TSCA Title IV.  Section 1018 requires that EPA and HUD develop the disclosure regulations.  As a result, EPA and HUD each developed a set of disclosure regulation, which is substantively the same as each other but has technical differences such as cross-references. 61 Fed. Reg. 9085 (Mar. 6, 1996).  EPA’s sale and lease disclosure rule is codified in 40 C.F.R. §§ 745.100-745.119.  HUD’s sale and lease disclosure rule is codified in 24 C.F.R. §§ 35.80-35.98.

[25] See 61 Fed. Reg. 9085 (Mar. 6, 1996). 

[26] 61 Fed. Reg. 45813 (Aug. 29, 1996). 

[27] 73 Fed. Reg. 21765 (Apr. 22, 2008).  EPA promulgated the initial pre-renovation education rule, under TSCA section 406(b), in 1998.  See 63 Fed. Reg. 29908 (June 1, 1998).  The pre-renovation education rule was then incorporated into the RRP rule in the 2008 rulemaking. 

[28] 64 Fed. Reg. 50202 (Sept. 15, 1999).

[29] 40 C.F.R. §§ 745.107(a), 745.113(a), (b).  Note that the sale and lease disclosure rule includes its own definition of lead-based paint hazards, which referred to “lead-contaminated paint,” “lead-contaminated dust,” and “lead-contaminated soil.” Id. § 745.103.  This rule, however, was promulgated before the 2001 Hazard Standards.

[30] 40 C.F.R. § 745.223 (definition of “Abatement”).

[31] 66 Fed. Reg. 1206, 1210 (Jan. 5, 2001) (emphasis added).

[32] 40 C.F.R. § 745.227(d)(11)(xvii).

[33] 40 C.F.R. § 745.227(e)(5)(i). Unlike in the sale and lease disclosure rule, the definition of “lead-based paint hazards” in the abatement rule explicitly makes reference to section 403 hazards.  Id. § 745.223.  During the rulemaking of the 2001 Hazard Standards,  the paint, dust, and soil hazards are further incorporated by paraphrasing into the lead abatement rule in 40 C.F.R. § 745.227(h).

[34] 40 C.F.R. § 745.325(e).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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