United States: 9th Circuit: EPA Must Update Its Lead Dust Standards

In another blow to the Administration's deregulatory agenda, the 9th Circuit U.S. Court of Appeals ruled on December 27 that EPA has a non-discretionary duty to propose updates to its 2001 lead dust hazard standard.  The Court gave EPA 90 days to issue the proposal, and a year to finalize it.  Community Voice, et al v. EPA (9th Circuit, Dec. 27, 2017).  The Court's 2-1 decision rejected the Administration's argument that its only duty under the law was to issue the original standards in 2001, and that the decision whether to update the standards was within the agency's discretion.  Instead, the Court ruled that under both the Toxic Substances Control Act and the Lead-Based Paint Hazard Reduction Act, EPA has a duty to update its standards as new information arises.  The Court noted that "EPA does not appear to dispute the factual record developed by Petitioners showing that, according to modern scientific understanding, neither the dust lead hazard standard nor the lead-based paint standard are sufficient to protect children."    Rejecting a separate argument by EPA that its only duty under the Administrative Procedure Act was to grant the Petitioners' petition for rule-making, and that it could indefinitely delay actually performing the rule-making, the Court ruled that delaying eight years after granting the petition for rule-making "stretched the 'rule of reason' beyond its limits."

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