For the Second Time in Four Years, the Ninth Circuit Has Ordered the EPA to Set New Lead Paint and Dust Standards

A judge called the agency’s performance “a lengthy, not very hopeful saga.” The ruling comes just as the Biden administration has focused on lead remediation.

The paint chipping from a windowsill contains amounts of lead that are dangerous to children. Credit: MediaNews Group/Reading Eagle via Getty Images

The paint chipping from a windowsill contains amounts of lead that are dangerous to children. Credit: MediaNews Group/Reading Eagle via Getty Images

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The U.S. Ninth Circuit Court of Appeals this month ordered the Environmental Protection Agency to go back and reconsider its lead hazard standards for homes—again.

On May 14, in A Community Voice et al. v. U.S. Environmental Protection Agency, the appeals court ruled that the EPA violated the court’s 2017 mandate to reevaluate hazard standards for lead in dust and paint that persist in millions of American homes, posing health risks, particularly to young children. For separate reasons, the court also ordered the agency to update its definition of lead-contaminated soil.

The EPA was found in violation for not strengthening its health standards for lead safety and instead considering such outside factors as feasibility and testing capabilities. In its ruling, the majority of appeals court judges also rebuked the agency for its glacial pace in setting standards over the last three decades.

“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,” Judge Mary M. Schroeder wrote in the majority opinion.

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Homes built before 1978, the year lead paint was banned for residential use, are much more likely to be hazardous to health. According to the Centers for Disease Control and Prevention, there are still around 4 million homes with young children that contain “significant lead-based paint hazards.” Overwhelmingly, these homes are found in poor and minority neighborhoods.

Lead studies and remediation often focus on children under the age of six, whose bodies are vastly more effective at absorbing lead than adults. Children often ingest the toxin by eating lead paint chips, which taste sweet, or by putting hands contaminated with lead dust in their mouths. 

This can have catastrophic effects on health and development, as lead poisoning puts them at greater risk of attention deficit hyperactivity order, stunted growth and brain damage. Lead poisoning has also been linked with a greater likelihood of dropping out of school, making less money over a lifetime and ending up in prison.

“The fact is, most homes have not been inspected for lead paint hazards,” said Dr. David E. Jacobs, chief scientist for the National Center for Healthy Housing, a nonprofit organization whose mission is to reduce health disparities caused by unsafe housing.

Lead Levels in Children

In 1992, after scientists found low-level lead poisoning was widespread among American children, Congress passed the Residential Lead-Based Paint Hazard Reduction Act. Congress established the initial definition for lead-based paint, and gave the EPA 18 months to set the first hazard standard for lead in dust. But the agency didn’t get around to doing so until 2001. And when the EPA failed to strengthen the rules after later findings proved them inadequate, numerous organizations petitioned in 2009 to have the regulations updated. After several years of inaction on the EPA’s part, many of those same petitioners took the agency to court. In 2017, the Ninth Circuit Court of Appeals issued a mandate for the EPA to act.

Two years later, the EPA published its new rule, sometimes called the 10/100 standards. It tightened the level of lead considered dangerous on floors, lowering it from 40 micrograms per square foot to 10 micrograms per square foot. For windowsills, it lowered the standard from 250 micrograms per square foot to 100 micrograms per square foot. Window frames painted with lead play an outsized role in exposure because the friction caused by opening and closing them creates and spreads contaminated dust.

But the nonprofit community, health and environmental groups that filed the suit found the dust-lead hazard standards lacking, so they took the EPA back to court—and won. 

The EPA had argued that setting standards based solely on the science—which says there is no safe amount of lead in the body—was not feasible because the agency could not mitigate all lead dangers on its own. A three-judge panel, in a 2-1 ruling, acknowledged the EPA’s limitations, but maintained that the agency’s task was to consider health effects alone.

The court also said the agency’s failure to create a new definition for lead-based paint and a new soil-lead hazard standard—for several decades citing “significant data gaps” and “scientific uncertainty”—was “capricious and arbitrary” and in violation of Title IV of the Toxic Substances Control Act. (The suit also addressed lead clearance levels, which refer to the amount of lead allowed in homes after cleanup. The court majority ruled that clearance levels were closely related to hazard standards and also required updating.)

The dissenting judge argued that the EPA was entitled to consider factors other than health in setting lead hazard standards. He argued that doing otherwise would seemingly entail setting all clearance levels to zero micrograms per square foot.

The appeals court did not give the EPA a deadline, but Jonathan Smith, an attorney for Earthjustice who represented the plaintiffs, said he and other plaintiffs’ attorneys “are expecting to work with the agency, or put pressure on the agency, to make sure that it actually does what the court ordered it to do.”

The EPA did not respond to a request for comment.

Although the national median blood-lead level for children has fallen drastically—it was 21 times higher in 1976 than in 2016—researchers and activists say they still have a great deal of work to do. And they’re applying pressure from all sides for the federal government to move quickly.

Biden’s Focus on Lead

In 2014, under state-appointed emergency management, the city of Flint, Michigan, switched its longtime drinking water source to save money. Unknown at the time was that the new source was more corrosive. The result: lead stored in pipes leached into the water and flowed to homes where nearly 9,000 children were exposed.

Residents complained about the smell, color and taste of the water, and reported skin rashes and other health concerns. The poisonings—and pending criminal charges—might have been avoided had those in charge used inexpensive corrosion inhibitors.

“It was malfeasance in the highest degree,” said Ruth Ann Norton, the president and CEO of Green & Healthy Homes Initiative, a nonprofit dedicated to reducing residential health hazards.

Unveiled at the end of March, the Biden administration’s American Jobs Plan, its proposal to rebuild the country’s infrastructure, includes $45 billion to replace 100 percent of the nation’s lead pipes and service lines, which six to 10 million homes still receive drinking water from. 

While the tragedy of Flint gripped the nation, no such event has brought comparable attention to the hazard of lead paint. With people spending more time at home during the pandemic, the problem has probably grown worse. Norton said she is urging the administration to fund remediation of lead-based paint hazards as well.

“We have to work harder, right, to remind people of this legacy issue,” Norton said about lead paint. The phaseout of leaded gasoline, once the primary source of lead exposure, began in 1973 and ended in 1996. Today, dust from old layers of lead paint has taken its place as the most common lead hazard.

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With only the slimmest of Democratic majorities in the Senate, it’s far from certain that a comprehensive infrastructure bill will make it through Congress. So Green & Healthy Homes Initiative, along with dozens of other organizations, supports a yet-to-be unveiled update to the Environmental Justice Legacy Pollution Cleanup Act, introduced in Congress last year. This version doubles the funding to clean up various forms of “legacy pollution”—including hazardous waste sites and dirty air and water—from $100 billion to $200 billion. If passed, it would direct $45 billion toward remediating lead-based paint hazards.

“One way or another we pay for the cost of lead poisoning, because we’ve shifted the burden to, you know, our school systems, to our hospitals and to our medical care system,” Jacobs said. “We could save billions of dollars if we simply make the investment that was needed.”

The National Center for Healthy Housing also wants the federal government to act swiftly on reducing lead exposure. Earlier this month, it addressed a letter to Congress requesting at least a $19 billion “down payment” on lead remediation, one that would return “at least $26.4 billion in benefits related to lead poisoning prevention alone.”

Amanda Reddy, the executive director of the National Center for Healthy Housing, said that by placing an emphasis on windows, the Biden administration would tackle several other issues simultaneously, like “creating jobs, improving home values, reducing utility bills and emissions, and creating more safe and resilient housing for residents to face the challenges of a changing climate.”

New, energy-efficient windows would also address exposure to radon, mold and the asthma attacks it can trigger.

“We shouldn’t be waiting until children are harmed to figure out where the lead is in our environment,” Reddy said.

With the Ninth Circuit demanding updated standards in no uncertain terms, children’s advocates and environmentalists sense an opening for real change.

“This is one of those problems for which there is light at the end of the tunnel,” Jacobs said.