A Community Voice v. Usepa ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A COMMUNITY VOICE; CALIFORNIA No. 19-71930
COMMUNITIES AGAINST TOXICS;
HEALTHY HOMES COLLABORATIVE; EPA No.
NEW JERSEY CITIZEN ACTION; NEW EPA-HQ-OPPT-
YORK CITY COALITION TO END 2018-0166
LEAD POISONING; SIERRA CLUB;
UNITED PARENTS AGAINST LEAD
NATIONAL; WE ACT FOR OPINION
ENVIRONMENTAL JUSTICE,
Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; MICHAEL S. REGAN,
Administrator, United States
Environmental Protection Agency,
Respondents.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted October 27, 2020
San Francisco, California
Filed May 14, 2021
2 A COMMUNITY VOICE V. USEPA
Before: Mary M. Schroeder and N. Randy Smith, Circuit
Judges, and Lawrence L. Piersol,* District Judge.
Opinion by Judge Schroeder;
Dissent by Judge N.R. Smith
SUMMARY**
Toxic Substances Control Act
Granting a petition for review, the panel remanded
without vacatur the Environmental Protection Agency
(“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 contended 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 held that there was a Congressional mandate to
establish lead-based paint standards, and the EPA was
charged with setting and updating three separate hazard
standards: the dust-lead hazard standards (“DLHS”), the
*
The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
A COMMUNITY VOICE V. USEPA 3
paint-lead hazard standards, and the soil-lead hazard
standards.
Concerning DLHS, which relate to household dust, the
panel held that the EPA must reconsider the dust-level health
standards. The panel held that the 2019 Rule lowered the
lead hazard level but not to a level sufficient to protect health
as Congress directed, because the EPA looked to factors in
addition to health risks. The EPA’s interpretation of its
statutory authority was contrary to the statutory language and
express congressional purpose, as well as the Supreme
Court’s interpretation of parallel language in other statutes
and the EPA’s own prior interpretation on this provision.
Concerning the lead-based paint definition, the panel held
that the EPA failed to meet its ongoing duty to account for
new information and modify initial standards when necessary
to further Congress’ intent to eliminate lead-based paint
hazard. The panel held further that the EPA’s failure to do
so, despite the clear body of evidence commanding a new
definition, violated Title IV of the TSCA. In addition, the
EPA’s failure to provide any sensible explanation for its
delay made the inaction arbitrary and capricious.
Concerning the soil-lead hazard standards, the panel held
that the EPA’s existing soil-lead hazard standards did not
identify all levels of lead in soil that are dangerous to human
health, and thus was contrary to Title IV of the TSCA. The
panel held that the EPA had an ongoing duty to update the
standards, and it could not recite “scientific uncertainty” to
evade its statutory duty to update regulations. The panel
concluded that the EPA’s decision to abandon the soil-based
hazard standards for the last two decades violated Title IV of
the TSCA.
4 A COMMUNITY VOICE V. USEPA
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. Both
sets of standards are interrelated and must work together to
effectuate Congress’ intent to end the hazards of lead paint in
children.
Dissenting, Judge N.R. Smith would deny the petition for
review. He would hold that the statutory scheme of the
TSCA and PHA authorized the EPA to consider both health
and nonrisk factors in setting the DLHS; the EPA did not act
arbitrarily or capriciously in setting those levels; and the EPA
did not violate the 2017 Writ in declining to set soil-based
hazard standards.
COUNSEL
Jonathan J. Smith (argued), Eve C. Gartner, Victoria Bogdan
Tejeda, and Sophia B. Jayanty, Earthjustice, New York, New
York, for Petitioners.
Daniel R. Dertke (argued), Attorney Environmental Defense
Section; Jonathan D. Brightbill, Principal Deputy Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice, Washington,
D.C.; Steve Anderson, Office of the General Counsel, United
States Environmental Protection Agency, Washington, D.C.;
for Respondents.
Bethany A. Davis Noll, Institute for Policy Integrity, New
York, New York, for Amicus Curiae Institute for Policy
Integrity.
A COMMUNITY VOICE V. USEPA 5
Erik C. Baptist, Richard W. Smith, and Douglas C. Dreier,
Wiley Rein LLP, Washington, D.C., for Amici Curiae
National Association of Home Builders of the United States,
Window & Door Manufacturers Association, National
Multifamily Housing Council, and National Apartment
Association.
Emily A. Benfer, Health Justice Advocacy Clinic,
Morningside Heights Legal Services Inc., Columbia Law
School, New York, New York, for Amici Curiae American
Academy of Pediatrics, American Public Health Association,
National Association of County and City Health Officials,
Network for Public Health Law, and Dr. Bruce Lanphear.
Tom Neltner, Silver Spring, Maryland, for Amicus Curiae
Lead and Environmental Hazards Association.
OPINION
SCHROEDER, Circuit Judge:
INTRODUCTION
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, in soil, as well as
in the residue of earlier clean ups. Before us is the
Environmental Protection Agency’s Final 2019 Rule,
promulgated after this court issued a Writ of Mandamus in
2017 in response to years of inaction by the Environmental
Protection Agency (EPA). In re A Community Voice,
878 F.3d 779 (2017).
6 A COMMUNITY VOICE V. USEPA
When Congress passed the Residential Lead-Based Paint
Hazard Reduction Act (PHA) in 1992, our government’s
attempts to deal with the dangers of the paint appeared to
ramp up. Congress acted in the wake of alarming scientific
findings that American children suffer from widespread low-
level lead poisoning. Nearly nine years later, in 2001, the
EPA issued regulations that included lead-based paint hazard
standards, but by 2009 it had become clear those standards
were not adequate and that the EPA was being too slow to
react. The situation prompted several organizations, many of
whom are also Petitioners here, to file a rulemaking petition
asking the EPA to update the dust-lead hazard standards,
dust-lead clearance levels, and the definition of lead-based
paint (2009 Petition).
The EPA granted the 2009 Petition, but nearly eight years
elapsed without any rulemaking. Petitioners therefore sought
a directive to the EPA from this court, and in 2017 we issued
the writ of mandamus (Writ) in the face of the EPA’s
continued failure to act. See id.
The 2019 Rule challenged here is the EPA’s response to
the Writ. The Rule, however, does not update the definition
of lead-based paint, nor does it update the dust-lead clearance
levels or soil-lead hazard standards. It lowers the standards
for dust-lead hazards, but to an extent less than what the
Petitioners say the law requires. The Petitioners contend the
2019 Rule violates important statutory provisions of the PHA
that are now codified in Title IV of the Toxic Substances
Control Act (TSCA IV), as well as rulings of our court in the
Writ.
Petitioners’ standing is not challenged. Nor is our
jurisdiction, because the TSCA IV gives the Courts of
A COMMUNITY VOICE V. USEPA 7
Appeals exclusive jurisdiction to review final rules.
15 U.S.C. § 2618(a)(1)(B).
The most serious issue of statutory interpretation in the
case concerns the definitions of the lead-based paint hazard
standards and whether they comply with the TSCA’s
requirement that the EPA identify “any condition” of lead in
dust, paint, and soil that would result in “adverse human
health effects as established by the administrator under
[TSCA IV].” 15 U.S.C. §§ 2683, 2681(10). Petitioners
contend that the TSCA requires the EPA to set the standards
on the basis of the EPA’s assessment of health risks and
without regard to factors such as cost. The EPA’s position is
that, although this provision of the TSCA refers only to health
effects, the EPA may also look to other factors, having to do
with feasibility and efficacy. It reasons that because it is now
well established that any level of lead in the blood leads to
adverse health effects, the statutory language gives the EPA
discretion to select hazard standards it wishes to enforce,
rather than ones aimed at eliminating health risks. Congress,
however, said that the EPA was to look at risks to health. We
interpret the statute accordingly. 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.
Petitioners also contend that the EPA’s failure to update
the definition of both lead-based paint and the soil-lead
hazard standards is arbitrary and capricious. The EPA has
continually refused to update the lead-based paint definition
on the ground that it lacks sufficient information. We
conclude 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
8 A COMMUNITY VOICE V. USEPA
capricious. See Greater Yellowstone Coal., Inc. v. Servheen,
665 F.3d 1015, 1028 (9th Cir. 2011). 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.
The EPA did not deal with dust-lead clearance levels in
this 2019 Rule because it has referred the subject to separate
rulemaking. No record of that proceeding is before us.
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. Since, as a result of this proceeding, we have
ordered the EPA to reexamine the DLHS, the same fate must
await the clearance levels.
Before discussing the standards the EPA did promulgate
within this Rule, we briefly review the history of federal lead
paint regulation, a history that many might characterize as
sluggish. Our earlier opinion contains a fuller summary.
BACKGROUND AND SUMMARY
Lead-based paint was banned for consumer use in 1978,
but it was not until more than a decade later, in 1992, that
Congress enacted the Residential Lead-Based Paint Hazard
Reduction Act (PHA). Pub L. 102-550, 106 Stat. 3672. The
Act amended the TSCA adding Title IV entitled “Lead
Exposure Reduction.” 15 U.S.C. §§ 2681–92. TSCA IV
delegated to the EPA authority to establish lead-based paint
hazards. Congress also established the original definition of
lead-based paint with reference to the level of lead it
contained, and provided the EPA could establish future levels
that would apply in all locations other than older housing,
A COMMUNITY VOICE V. USEPA 9
where standards were to be set by the U.S. Department of
Housing and Urban Development. Id. § 2681(9). Congress
prescribed a rapid, 18-month timeline for EPA’s
promulgation of lead-based paint hazards, id. § 2683, but the
EPA did not finalize standards until 2001. 40 C.F.R.
§ 745.65 (2001) (amended Jan. 6, 2020). These standards
were believed by the EPA, at the time, to be sufficient to
maintain a safe blood lead level (BLL) in children.
Within a few years, however, scientific knowledge had
progressed to the point where it was generally understood that
there is no safe level of lead, so that the previous lead-based
paint standards were inadequate. Yet the EPA did not act.
By 2009, several of the entities that are Petitioners before us
became concerned with the EPA’s inaction and filed an
administrative petition with the EPA asking for rulemaking.
They urged the EPA to lower the DLHS and associated dust-
lead clearance levels from 40 µg/ft2 of surface area to
10 µg/ft2 or less for floors and from 250 µg/ft2 of surface area
to 100 µg/ft2 or less for windowsills. The 2009 Petition also
asked the EPA to broaden the definition of lead-based paint
to include all conditions that were then-known to be toxic.
The 2009 Petition asked the EPA to “reduce the level of lead
in paint that would define a lead-based paint from 0.5 percent
by weight to 0.06 percent by weight, with a corresponding
reduction in the 1.0 milligram per square centimeter
standard.”
The EPA granted the 2009 Petition and conducted some
follow-up studies but took no rulemaking action. Petitioners
then filed the mandamus action that resulted in our 2017
opinion. We there held the EPA had a duty to act and that it
had unreasonably delayed in doing so. See In re A
Community Voice, 878 F.3d at 779. We said that the EPA has
10 A COMMUNITY VOICE V. USEPA
a duty stemming from the TSCA “to engage in an ongoing
process, accounting for new information, and to modify initial
standards when necessary to further Congress’s intent: to
prevent childhood lead poisoning and eliminate lead-based
paint hazards.” Id. at 784. We also recognized the EPA’s
duty stemming from the Administrative Procedures Act
(APA) to fully respond to petitions for rulemaking in a
reasonable amount of time. Id. at 786. We ordered the EPA
to take action within 90 days of our opinion becoming final,
and to promulgate a final rule within a year. Id. at 788.
The EPA in 2019 adopted the Final Rule that is before us,
but addressing only the DLHS. The EPA lowered the DLHS
to 10 µg/ft2 and 100 µg/ft2 for floors and windowsills,
respectively (10/100 Standards). These match the levels
requested in the 2009 Petition which had been submitted ten
years earlier. In promulgating the 2019 Rule, the EPA
acknowledged that its earlier, 2018, proposed rule had drawn
many comments that a lower standard was needed to protect
children’s health, but the EPA nevertheless adopted the 2019
Rule as originally proposed.
The EPA now contends that, in promulgating a more
lenient standard than that necessary to protect children’s
health, it properly took into consideration factors other than
health, such as feasibility and efficacy. This gives rise to the
primary issue of statutory interpretation that we must resolve
in this proceeding. The TSCA IV requires the EPA to
identify “any condition” of lead in dust, paint, and soil
resulting in adverse human health effects. 15 U.S.C.
§ 2681(10). The EPA’s position is that the statute grants it
discretion to look to factors outside of adverse effects on
health. Its interpretation, however, is not supported by the
language of TSCA IV, or Congress’s purpose in enacting its
A COMMUNITY VOICE V. USEPA 11
lead-based paint provisions, which are directed toward
protecting children’s health by reducing exposure to lead.
We therefore resolve that legal issue in favor of the
Petitioners.
The 2019 Rule does nothing with respect to the lead-
based paint definition, with the EPA explaining, as it had in
2001, that it lacks sufficient data. The Rule also does nothing
with respect to the soil-lead hazard standards, with the EPA
taking a similar position that it lacks sufficient data to update
the standards, and, further, that it is under no duty to do so by
virtue of either the statute or the Writ. Petitioners contend
that the EPA’s failure to update the lead-based paint
definition and soil-lead hazard standards violates the EPA’s
ongoing statutory duty to maintain and update the lead-based
paint hazard standards. We have already recognized such a
duty. A Community Voice, 878 F.3d at 784. The EPA’s
continued reliance on inadequate information for
approximately two decades is arbitrary and capricious and in
violation of its statutory obligation of scientific currency.
The dust-lead clearance levels are directly related to the
DLHS because the clearance levels represent the levels of
lead in dust that can remain after dust-lead has been abated.
40 C.F.R. § 745.227(e)(8)(viii). The EPA has expressly
recognized an apparent need for updating the clearance
levels, yet it has set in motion a rulemaking process separate
and apart from this proceeding. The relationship between the
DLHS and clearance levels indicates that a change to the
DLHS requires the simultaneous reconsideration of the
associated clearance levels. This has not been done.
We therefore remand the 2019 Rule and direct the EPA to
reconsider the DLHS and to do so in conjunction with the
12 A COMMUNITY VOICE V. USEPA
dust-lead clearance levels that have been the subject of
separate proceedings. We also hold that the EPA is
statutorily required to engage in the appropriate rulemaking
to update the definition of lead-based paint and soil-lead
hazard standards. In this Rule, the EPA has taken some
action with respect to the DLHS, albeit insufficient. Some
action is better than no action, so we remand the 2019 Rule
without vacating it.
DISCUSSION
I. The Congressional Mandate to Establish Lead-Based
Paint Hazards
Congress enacted the PHA because it recognized that lead
paint was a national problem that required an urgent response.
Its stated purpose was “to develop a national strategy to build
the infrastructure necessary to eliminate lead-based paint
hazards in all housing as expeditiously as possible.”
42 U.S.C. § 4851(a)(1). In amending the TSCA through the
PHA, Congress delegated regulatory authority to the EPA and
instructed it, among other tasks, to establish hazard standards
that delineate levels at which lead becomes dangerous.
15 U.S.C. § 2683. Identifying the levels of lead in paint, as
well as in dust and soil, that created dangers to health seemed
to be an essential step in the effort to protect our nation’s
children from the toxic effects of lead.
Congress thus instructed the EPA to promulgate
regulations identifying lead-based paint hazards, and to do so
within 18 months. Id. The standards serve a number of
purposes. They inform the public about what constitutes
dangerous levels of lead in order to further risk assessment
and abatement strategies. States rely on the national
A COMMUNITY VOICE V. USEPA 13
standards in setting forth their own lead programs. Public
disclosures about lead dangers in most older housing must
include the standards. 42 U.S.C. § 4852(d).
Congress told the EPA to identify the level at which lead
becomes dangerous to human health when contained in
principal sources of lead poisoning. 15 U.S.C. § 2681(10).
It instructed the Administrator to set the hazard levels to
identify “any condition that causes exposure to lead from
lead-contaminated dust, lead-contaminated soil, lead-
contaminated paint… that would result in adverse human
health effects as established by the Administrator under this
chapter.” Id. § 2681(10). This means the EPA is charged
with setting and updating three separate hazard standards: the
dust-lead hazard standards, the paint-lead hazard standards,
and the soil-lead hazard standards. The Petitioners challenge
what the EPA has done or has not done with respect to all
three types of hazards.
A. Dust-Lead Hazard Standards
Dust-lead hazard standards relate to household dust. Lead
gets into household dust through lead-based paint debris, so
children are exposed to lead through the dust in their homes.
According to the EPA’s own 2017 model, lead from dust and
soil accounts for over seventy percent of lead exposure in
children ages one through six with the highest levels of lead
in their blood, and it accounts for over fifty percent of lead
exposure in infants with the highest blood lead levels.
Valerie Zartarian, et. al., Children’s Lead Exposure: A
Multimedia Modeling Analysis to Guide Public Health
Decision-Making, Environmental Health Perspectives,
097009-4 (Sept. 12, 2017), ehp.niehs.nih.gov/doi/pdf/
10.1289/EHP1605. TSCA IV defines lead-contaminated dust
14 A COMMUNITY VOICE V. USEPA
as “surface dust in residential dwellings that contains an area
or mass concentration of lead in excess of levels determined
by the Administrator under this subchapter to pose a threat of
adverse health effects in pregnant women or young children.”
15 U.S.C. § 2681(11). The DLHS are meant to identify the
levels where lead-contaminated dust within buildings pose a
danger to human health. The EPA has historically chosen to
promulgate two hazard standards for dust-lead: the level at
which the concentration of dust-lead becomes unsafe on
floors, and the level at which it becomes unsafe on
windowsills. Together they comprise the DLHS.
The EPA first set the DLHS in 2001, a delayed response
to Congress’s 1992 demand. In response to the Writ, the
EPA reset the DLHS in this 2019 Rule. The new standards
are 10 µg/ft2 for floors and 100 µg/ft2 for windowsills, and
have been dubbed the 10/100 Standards. In promulgating the
Standards, however, the EPA did not try to set them at the
threshold level that causes harm to human health, but also
took into account outside factors bearing on implementation,
such as current testing capabilities. The Petitioners contend
there is a clear statutory directive that the EPA set the hazard
standards at the point at which the level dust-lead creates
hazards to human health. The Petitioners say the 10/100
Standards are too high, because they permit harm to
children’s health.
Under the DLHS as promulgated, there will be adverse
human health effects. The EPA does not dispute this fact.
The EPA argues that it has the discretion to set the levels at
its choosing, even if they permit threats to children’s health,
because the statute contains a general delegation of regulatory
authority to the Administrator.
A COMMUNITY VOICE V. USEPA 15
The language on which it relies is contained in the
statutory definition of “lead-based paint hazards.” 15 U.S.C.
§ 2681(10). The provision reads as follows:
The term “lead-based paint hazard” means
any condition that causes exposure to lead
from lead-contaminated dust, lead-
contaminated soil, lead-contaminated paint
that is deteriorated or present in accessible
surfaces, friction surfaces, or impact surfaces
that would result in adverse human health
effects as established by the Administrator
under this subchapter.
The EPA argues that the statutory language “as
established by the Administrator” modifies the previous
phrase, “would result in adverse human health effects,” and
therefore the EPA has broad discretion to determine what
level of harm constitutes a hazard, taking into account factors
other than health. The Petitioners contend that this provision
instructs the EPA to look only to health.
The natural reading is that the delegation to the EPA is to
establish the conditions that cause harm, not what constitutes
harm. The provision contains no directive to consider factors
apart from health. The language of the provision supports
Petitioners’ interpretation.
Congress made clear its purpose in amending the TSCA
was to eliminate lead-based paint hazards: “to develop a
national strategy . . . to eliminate lead-based paint hazards in
all housing as expeditiously as possible.” 42 U.S.C.
§ 4851(a)(1). The TSCA IV’s statutory scheme reflects this
purpose and also supports Petitioners’ interpretation. The
16 A COMMUNITY VOICE V. USEPA
statute charges the EPA with identifying “dangerous levels of
lead.” See 15 U.S.C. § 2683. The definitional provisions in
Section 2681 contain separate definitions of “lead-
contaminated dust” and “lead-contaminated soil” that, like
the definition of lead-based paint hazards, reference harm to
health and no other factors. Section 2681(11) defines lead-
contaminated dust as “surface dust in residential dwellings
that contains an area or mass concentration of lead in excess
of levels determined by the Administrator under this
subchapter to pose a threat of adverse health effects in
pregnant women or young children.” Section 2681(12)
defines “lead-contaminated soil” as “bare soil on residential
real property that contains lead at or in excess of the levels
determined to be hazardous to human health by the
Administrator under this subchapter.” Congress made no
mention of economic or market factors in any of its
definitional provisions of sources of harm.
The EPA’s duty in defining the hazards as described in
Sections 2683 and 2681(10) concerns identifying the dangers
of lead-based paint in order to protect health. The EPA,
however, in identifying the hazards, has looked to other
factors, including feasibility and efficacy. These are practical
considerations bearing on implementation of the hazard
standards, not the identification of the hazards to health. The
TSCA IV deals separately with identification and
implementation. Other parts of the TSCA IV address how the
standards should be implemented and expressly take into
account practical considerations, such as efficacy. See, e.g.,
15 U.S.C. § 2682(a)(1) Lead-based paint activities training
and certification (“[T]he Administrator shall . . . promulgate
final regulations . . . [which shall] contain standards for
performing lead-based paint activities, taking into account
A COMMUNITY VOICE V. USEPA 17
reliability, effectiveness, and safety.”). Section 2681(10)
deals only with identifying the hazards.
Congress has used this identification versus
implementation dichotomy before. In the Clean Air Act
(CAA), Congress told the EPA to set primary ambient air
quality standards to protect the public health. The standards
were to be set at levels “the attainment and maintenance of
which . . . are requisite to protect the public health” with “an
adequate margin of safety.” 42 U.S.C. § 7409(b)(1). Other
sections of the CAA deal with implementing the air quality
standards and explicitly instruct the EPA to consider non-
health factors such as achievability and cost. See, e.g.,
42 U.S. C. §§ 7411(a)(1), (b)(1)(B) (The EPA is charged with
setting standards of performance for sources of air pollution
that take into account achievability and cost); 42 U.S.C.
§ 7545(k)(1) (The EPA is charged with creating requirements
for reformulated gasoline based in part on cost and
achievability). The pattern is the same as in the TSCA IV.
Indeed, the Supreme Court has actually considered
whether this CAA standard identification provision allows the
EPA to consider costs in setting clean air standards and held
that it does not. Whitman v. Am. Trucking Associations,
531 U.S. 457, 467–468 (2001). There, the industry
defendants argued that use of phrases like “adequate margin”
and “requisite to protect,” used to describe the regulatory
goal, gave the EPA the discretion to look to non-health
factors in setting the standards. Justice Scalia’s opinion for
the Court said it was “implausible that Congress would give
to the EPA through these modest words the power to
determine whether implementation costs should moderate
national air quality standards.” Id. at 467.
18 A COMMUNITY VOICE V. USEPA
In so concluding, the Court recognized the distinction
Congress had drawn in the CAA between identification of
standards and implementation. The defendants in Whitman
challenged the EPA’s exclusion of implementation costs as
resulting in standards that were too stringent. Id. at 467.
They predicted that it could have dire implications, like
“closing down whole industries.” Id. The Court responded
that economic factors were not to be considered in setting the
standards because other sections of the CAA explicitly allow
the EPA to consider costs. Id. at 467.
Congress has also used the identification and
implementation dichotomy in the Resource Conservation and
Recovery Act (RCRA). Util. Solid Waste Activities Grp. v.
EPA, 901 F.3d 414, 449 (D.C. Cir. 2018) (citations omitted).
The RCRA instructs the EPA to classify sanitary landfills
only “if there is no reasonable probability of adverse effects
on health or the environment from disposal of solid waste at
such facility.” 42 U.S.C. § 6944(a). When industry
petitioners argued that the “no reasonable probability” phrase
implied that the EPA needed to consider costs in this
classification program, the D.C. Circuit pointed to the fact
that other sections of RCRA told the EPA to consider costs to
conclude that it was “far from clear that the EPA could
consider costs even if it wanted to.” Util. Solid Waste
Activities Grp., 901 F.3d at 448–449 (citing 42 U.S.C.
§ 6982(n)(6)).
In this case, the EPA argues that a literal interpretation of
the text, requiring the EPA to set a threshold level of harm in
looking only to health risks, no longer makes sense because
we now know that all levels of lead are harmful to human
health and that the EPA, acting on its own, cannot eliminate
lead risks. We agree the EPA cannot do it alone, but that
A COMMUNITY VOICE V. USEPA 19
does not absolve it of the statutory duty to pursue that goal,
much less grant it the authority to take into account
extraneous factors. As the Supreme Court has said, the EPA
“may not rewrite clear statutory terms to suit its own sense of
how the statute should operate.” Util. Air Regulatory Grp. v.
EPA, 573 U.S. 302, 328 (2014). In our case, this means that
if Congress wanted to grant the EPA the discretion to
determine what it believes should be the allowable level of
adverse health risks, Congress would have made that clear,
and would not have buried it in a vague delegation of
regulatory authority. As the Court put it in Whitman,
531 U.S. 457, 468 (2001), Congress does not “hide elephants
in mouseholes.”
Moreover, when the EPA promulgated the paint-lead
hazard standard in 2001, the EPA itself took a strict
interpretive approach to defining hazards to health and
embraced the “identification versus implementation”
distinction. It observed then that any level of lead in paint
was a health risk, so it designated the presence of any lead
paint as a hazard. The EPA pointed to comments indicating
“that even very tiny amounts of deteriorated lead-based paint
are sufficient in certain circumstances to result in adverse
health effects.” 66 Fed. Reg. 1206, 1208 (Jan. 5, 2001).
These comments supported the EPA’s decision to designate
“any amount of deteriorated paint as a lead-based paint lead
hazard.” Id. The EPA explained that while implementation
provisions allowed for other considerations, identification of
the hazard level should encapsulate all levels of risk to health.
Id.
The 2019 Rule lowers the lead hazard level but not to a
level sufficient to protect health as Congress has directed,
because the EPA has looked to factors in addition to health.
20 A COMMUNITY VOICE V. USEPA
The EPA’s interpretation of its statutory authority is contrary
to the statutory language and express congressional purpose,
as well as the Supreme Court’s interpretation of parallel
language in other statutes and the EPA’s own prior
interpretation of this provision. For these reasons, while we
do not vacate the DLHS, which makes some improvement,
the EPA must reconsider the DLHS.
B. Lead-Based Paint Definition
In millions of older homes, lead in paint is a highly
concentrated and common source of lead exposure. The CDC
describes lead-based paint and lead-contaminated dust as the
“most widespread and hazardous sources of lead
exposure for young children.” CDC, Lead in Paint,
www.cdc.gov/nceh/lead/prevention/sources/paint.htm (last
reviewed Nov. 24, 2020) (last visited Feb. 5, 2021). Children
may be directly poisoned by chewing on surfaces with lead-
paint. Id. Lead-paint also gets into dust in their homes. Id.
The TSCA IV’s lead-based paint hazard provision requires
the EPA to identify what level of lead-based paint constitutes
a paint-lead hazard. 15 § U.S.C. 2681(10). In the 2001
Regulations, the EPA defined the hazard to be “any” level of
lead-based paint. 40 C.F.R. § 745.65(a)(4). The question
then becomes: what is lead-based paint, that is, what is the
level of lead in paint required to make it “lead-based.” The
definition is critical, and, to be consistent with the definition
of lead-based paint hazard, it needs to encompass all levels of
lead in paint that lead to adverse human health effects.
Congress originally defined lead-based paint as paint with
“lead levels in excess of 1.0 milligrams per square centimeter
or 0.5% by weight,” with the proviso that it could be at “such
other level as may be established by the Administrator.”
15 U.S.C. § 2681(9).
A COMMUNITY VOICE V. USEPA 21
Congress defined the level in 1992. The EPA has never
updated it, despite our ever-expanding knowledge of the
dangers of lead. Four years ago, in issuing the Writ, we said
the definition “appear[ed] to be too high to provide a
sufficient level of safety” and characterized the need for a
new definition as obvious and apparent. In re A Community
Voice, 878 F.3d at 782, 785, 792. We noted then that the
EPA had not disputed the finding that, based on modern
science, its definition of lead-based paint was insufficient. Id.
at 782. We held that the EPA’s then eight-year delay was
unreasonable and said that there was an urgent need for new
rulemaking because of the “severe risks to children of lead-
poisoning under EPA’s admittedly insufficient standards.”
Id. at 788. We ordered the EPA to promulgate a new rule
within one year, and to inform the court if it needed us to
modify the deadline. Id.
Despite our clear directive, the EPA has left the definition
unchanged. It blames its inaction on “significant data gaps,”
a justification we conclude is arbitrary and capricious. A key
element of rulemaking is the collecting of relevant
information. Courts have recognized that an agency cannot
rely on uncertainty as an excuse for inaction.
The Supreme Court in In Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29
(1983) held that an agency may not continue to rely on
uncertainty for regulatory action or inaction that evades
statutory duties. The Court recognized that “policymaking in
a complex society must account for uncertainty,” but
explained that “does not imply that it is sufficient for an
agency to merely recite the terms ‘substantial uncertainty’ as
a justification for its actions.” Id. at 52.
22 A COMMUNITY VOICE V. USEPA
The D.C. Circuit recognized the same principle in Nat’l
Ass’n of Broadcasters v. F.C.C., 740 F.2d 1190, 1210 (D.C.
Cir. 1984) when it said “an agency would be paralyzed if all
the necessary answers had to be in before any action at all
could be taken.” Our court echoed the Supreme Court’s
directive in the environmental context. See Greater
Yellowstone Coalition, Inc., 665 F.3d 1015. There, the U.S.
Fish and Wildlife Service contended there was not enough
information about a declining food supply to support keeping
Yellowstone Grizzly Bears listed as “threatened” under the
Endangered Species Act. Id. at 1019, 1028. We cited State
Farm in concluding “[i]t is not enough for the [agency] to
simply invoke ‘scientific uncertainty’ to justify its action.”
Id. at 1028. We said agencies have to provide reasons why
uncertainty justifies their actions, lest the actions be deemed
arbitrary and capricious. Id.
In this case, the EPA has not explained why uncertainty
justifies its decision to leave the definition of lead-paint as-is.
The EPA partially justifies its inaction by citing to gaps in the
scientific literature, when we said four years ago the need to
act was urgent.
We have gained much knowledge since Congress adopted
the 1992 definition of lead-based paint; there is no safe level
of lead exposure. The CDC has been telling us this for years.
CDC, Health Effects of Lead Exposure,
www.cdc.gov/nceh/lead/prevention/health-effects.htm (last
reviewed Jan. 7, 2020) (last visited Feb. 5, 2021); see In re
A Community Voice, 878 F.3d at 782.
The Consumer Product Safety Commission (CPSC) has
taken action to protect consumers from lead by adopting a
standard much more protective than the EPA’s outdated
A COMMUNITY VOICE V. USEPA 23
standards. The CPSC’s regulation bans the production of
paint with a lead content of over 0.009 percent by weight,
declaring it “hazardous.” 16 CFR § 1303.1(a). Under the
EPA’s definition, lead-paint is not hazardous until it is over
fifty-five times higher than the CPSC’s definition.
The EPA’s responsibility here is apparent from
Congress’s purpose in amending the TSCA. 42 U.S.C.
§ 4851(a)(1). We have characterized the agency’s duty as
“ongoing.” In re A Community Voice, 878 F.3d at 784. It has
to account for new information and “modify initial standards
when necessary to further Congress’s intent” which was to
“eliminat[e] lead-based paint hazards.” Id. at 784. The
EPA’s failure to do so, despite the clear body of evidence
commanding a new definition, violates the TSCA IV. In
addition, its failure to provide any sensible explanation for its
delay makes the inaction arbitrary and capricious.
C. Soil-Lead Hazard Standards
Lead infiltrates America’s soil through residue from lead-
based paint, leaded fuels, and other industrial sources. For
American children, who should be able to play safely in their
neighborhood yards, lead in soil is particularly dangerous.
While playing outside, children ingest, touch, and inhale
lead from soil. CDC, Lead in Soil,
www.cdc.gov/nceh/lead/prevention/sources/soil.htm (last
reviewed Nov. 24, 2020) (last visited Feb. 5, 2021). Lead
from soil also gets into homes through dust. In the TSCA IV,
Congress charged the EPA with setting the soil-lead hazard
standards in order to identify the level at which lead in soil
becomes dangerous to human health. 15 U.S.C. § 2681(10).
24 A COMMUNITY VOICE V. USEPA
The soil-lead hazard standards we have now were set by
the EPA in 2001. They apply to lead in “bare soil” at
residential properties and child-occupied facilities; they
identify a “hazard” whether there is a total of 400 parts per
million (ppm) (µg/g) of lead in a play area or an average of
1,200 ppm in the rest of the yard. 40 C.F.R. § 745.65(c). The
EPA has not considered updating these since 2001.
The EPA’s antiquated definition of soil-lead hazard
standards allows for up to five percent of children to develop
a blood lead level above the 2001 level of concern, which was
set at 10 µg/dL. The EPA believed at the time that this would
leave ninety-five percent of children with safe levels of lead
in their blood (levels below 10 µg/dL). The EPA now
acknowledges there is no safe level of lead in blood. It
follows then, that the EPA’s existing soil-lead hazard
standards do not identify all levels of lead in soil that are
dangerous to human health. This is contrary to the TSCA IV.
The EPA’s main explanation for leaving out the soil-lead
hazard standards in the 2019 Rule is that revision of those
standards was not within the scope of the 2009 Petition for
rulemaking. It is within the scope of the EPA’s statutory
obligations, however. The statute places an “ongoing” duty
on the EPA to update standards “when necessary to further
Congress’s intent.” In re A Community Voice, 878 F.3d
at 784 (citing 15 U.S.C. § 2681). The statutory authority to
amend, and the EPA’s statutory duty to promulgate hazard
standards sufficient to protect human health, have remained
constant. It is not the public’s duty, nor is it the court’s duty,
to notify the EPA when it should do its job.
The EPA also relies to some extent on scientific
uncertainty as an excuse for its decision to ignore the
A COMMUNITY VOICE V. USEPA 25
outdated soil-lead hazard standards. This is the same reason
the EPA gave for not taking any action with respect to the
definition lead-based paint. As we pointed out earlier in
addressing that failing, the EPA cannot simply recite
“scientific uncertainty” to evade its statutory duty to update
regulations. See, e.g., Greater Yellowstone Coalition, Inc.,
665 F.3d 1019. The agency must explain why the uncertainty
justifies the inaction. It has provided no such explanation.
For these reasons, the EPA’s decision to abandon the soil-
lead hazard standards for the last two decades violates TSCA
IV.
II. Dust-Lead Clearance Levels
The dust-lead clearance levels are contained in the only
regulation before us that has been promulgated pursuant to
the EPA’s implementation authority. The TSCA’s principal
provision on implementation charges the EPA with
promulgating regulations governing lead-based paint,
including “risk assessment, inspection, and abatement
activities,” while “taking into account reliability,
effectiveness, and safety.” 15 U.S.C. § 2682(a)(1).
Dust-lead clearance levels represent the maximum
amount of lead in dust allowable in order for an abatement to
be considered successful. 40 C.F.R. § 745.227(e)(8)(viii).
The clearance levels are thus directly related to the level at
which lead dust is a health risk (DLHS). In its 2001
abatement regulations, the EPA established clearance levels
that matched the 2001 DLHS of 40 and 250 µg/ft2 for floors
and windowsills, respectively. Id. This meant that an
abatement was successful only if it eliminated the dust
hazards.
26 A COMMUNITY VOICE V. USEPA
In the 2019 Rule the EPA lowered the DLHS but did not
even consider the associated clearance levels. The EPA
established a separate rulemaking proceeding to establish new
clearance levels, a proceeding unrelated to this Rule and
hence detached from the DLHS rulemaking. This would
appear to ignore the close relationship between DLHS and the
associated clearance levels.
In setting hazard standards, including the DLHS, the
TSCA IV refers only to health as a factor to be considered.
15 U.S.C. § 2681(10). With respect to implementation,
including abatement, the TSCA IV gives the EPA latitude to
consider “reliability, effectiveness, and safety.” Id. § 2682.
This is in line with the overall statutory scheme that
differentiates between identification of hazards and
implementation of remedial measures. As we have
previously described here, and the Supreme Court has
discussed in a different context in Whitman, the EPA has
more discretion in setting the clearance levels because they
concern implementation of remedial measures, rather than
identification of a hazard.
This does not mean, however, that the EPA has the
discretion to do nothing with respect to implementation when
it changes the hazard standard. Implementation must account
for “reliability, effectiveness, and safety.” Id. § 2682(a)(1).
There is a broad grant of authority to update the regulations.
See 15 U.S.C.§ 2687 (“The regulations may be amended from
time to time as necessary.”). It follows, then, that a change in
the definition of a hazard—here, the lowering of the
DLHS—demands reconsideration of the effectiveness and
safety of the associated abatement regulation. Because the
hazard standards and the clearance levels are interrelated, the
two should be considered together. As Petitioners correctly
A COMMUNITY VOICE V. USEPA 27
point out, lowering the DLHS to make it a stricter standard
has little effect if the clearance levels remain the same or
embody less than a commensurate adjustment.
Consistent with our holding in this opinion that the EPA
must reconsider the DLHS, we direct the EPA to reconsider
the clearance levels as well in the same proceeding. Both sets
of standards must work together to effectuate Congress’s
intent to end the hazards of lead poisoning in our children.
CONCLUSION
The 2019 Rule before us is REMANDED without
VACATUR.
N.R. Smith, Circuit Judge, dissenting:
The United States Environmental Protection Agency
(“EPA”) is not charged by Congress to set lead-dust hazard
standards to eliminate any adverse human health effects.
Instead, Congress charged EPA to consider all factors
(including environmental, economic, social, and health) in
setting the lead-dust hazards standards. Following
Congress’s mandate and in accordance with our 2017 Writ,
EPA enacted its 2019 Rule. EPA acted within its discretion
in lowering the dust-lead hazard standard (“DLHS”), which
standard was reasonable and supported by the administrative
record.1
1
I agree with the majority that the lead-based paint definition and
dust-lead clearance levels were included in the 2009 rulemaking petition
and the 2017 Writ. The Writ required EPA to reevaluate them in its
28 A COMMUNITY VOICE V. USEPA
Further, EPA’s decision not to include the soil-lead
hazard standards in the 2019 Rule was not arbitrary and
capricious or in violation of the 2017 Writ.
Ignoring rules of statutory construction and our standard
of review for EPA actions, the majority reaches its decision
as to these issues. Accordingly, I must dissent.
I. EPA is not charged by Congress to set lead-dust
hazard standards to eliminate any adverse human
health effects.
This issue is premised on the following undisputed facts:
(1) there is no safe level of lead exposure. (2) Congress has
never set the acceptable levels of lead exposure nor has it
ever enacted any federal law (beyond those directed at the
Department of Housing and Urban Development (“HUD”))
requiring remediation of lead-based paint hazards when they
are found. Instead, (3) Congress gave EPA discretion to
determine the acceptable levels for lead-based paint hazards.
Pursuant to such authority, EPA has determined the
appropriate lead-exposure levels based on its expertise.
However, (4) because the levels presently set are
unsatisfactory to Petitioners (and now the majority), they
rulemaking. With regard to the definition, EPA was not necessarily
required to change the definition, rather, it was only required to research
and evaluate the definition. However, the evaluation was insufficient with
EPA only stating that there were “significant data gaps.” Cf.
Massachusetts v. EPA, 549 U.S. 497, 534 (2007) (“If the scientific
uncertainty is so profound that it precludes EPA from making a reasoned
judgment . . . , EPA must say so.”). With regard to the dust-lead clearance
levels, EPA should have included them in the 2019 rulemaking. However,
on December 18, 2020, EPA issued a final rule revising the clearance
levels.
A COMMUNITY VOICE V. USEPA 29
request we rewrite statutes and enlarge the 2017 Writ, in an
effort to substitute their opinions and expertise as to what
comprises lead-based paint hazards for that of EPA. To get
to Petitioners’ desired result as to this issue, the majority
writes this opinion, ignoring rules of statutory construction
and the standard of review. An examination of the Toxic
Substances Control Act (“TSCA”), 15 U.S.C. §§ 2601–2697,
as amended by the Residential Lead-Based Paint Hazard
Reduction Act (“RLBPHRA”), 42 U.S.C. §§ 4851–4856,
reveals how the majority “cherry-picked” language to support
its conclusion.
A. History of Lead Laws.
To give you context, I must begin with the statutory
background of the TSCA and the RLBPHRA. In 1976, the
TSCA was enacted “to prevent unreasonable risks of injury
to health or the environment associated with the manufacture,
processing, distribution in commerce, use, or disposal of
chemical substances.” Safer Chemicals, Healthy Families v.
EPA, 943 F.3d 397, 406 (9th Cir. 2019) (quoting S. Rep. No.
94-698, at 1 (1976), reprinted in 1976 U.S.C.C.A.N. 4491,
4491).
In 1992, recognizing that lead poisoning was still
widespread, see 42 U.S.C. § 4851(1), Congress enacted
RLBPHRA (Title X), which amended the TSCA “by adding
Title IV entitled ‘Lead Exposure Reduction.’” Nat’l Multi
Hous. Council v. EPA, 292 F.3d 232, 232 (D.C. Cir. 2002).
The RLBPHRA “directs EPA and [HUD] to take various
actions to protect the public from any lead-based paint hazard
by reducing such hazard.” Id. The goal of the RLBPHRA
was to “develop a national strategy to build the infrastructure
necessary to eliminate lead-based paint hazards in all housing
30 A COMMUNITY VOICE V. USEPA
as expeditiously as possible” and to “educate the public
concerning the hazards and sources of lead-based paint
poisoning and steps to reduce and eliminate such hazards.”
42 U.S.C. § 4851a(1), (7).
However, its enactment was “not intended to ‘solve’ the
vast problem of childhood exposure to hazardous amounts of
lead,” but rather it “intended to provide a transition to support
more effective strategies for eventually eliminating lead-
based paint hazards in housing as a source of childhood lead
poisoning. As a transition bill, Title X attempts to remove all
major obstacles to progress, making important changes in
approach and laying the foundation for more cost-effective
and widespread activities for reducing lead-based paint
hazards.”2 S. Rep. 102-332, 111 P.L. 102-550 Housing and
Community Development Act of 1992 (July 23, 1992)
(emphasis added).
B. The statutory text of TSCA and RLBPHRA require
EPA to consider all (health and nonrisk) factors in
enacting regulations.
The statutory text of the TSCA and the RLBPHRA clearly
indicates that Congress expected EPA to consider a variety of
factors in setting the levels for lead-based paint hazards; it
never expected or required EPA to set lead-based paint
2
Congress enacted its first lead-based paint legislation in 1971.
42 U.S.C. § 4851(7). Despite the knowledge of harm lead causes,
Congress did not require testing and abatement for all target housing
occupied by children under 6. Instead, Title X only requires that lead-
based paint hazards be disclosed. See 42 U.S.C. § 4852d(a)(1). Thus, it
is clear that Congress’s stated goal of “eliminat[ing] lead-based paint
hazards in all housing as expeditiously as possible” intended to take non-
health risk factors into account. § 4851a(1).
A COMMUNITY VOICE V. USEPA 31
hazards to have zero health risk. See 42 U.S.C. § 4851a(2),
(3), (5), (6) (outlining the purpose of Title X is to “reduce
lead-based paint hazards in the Nation’s housing stock”;
“establish[] a workable framework for lead-based paint
hazard evaluation and reduction”; “develop the most
promising, cost-effective methods for evaluating and
reducing lead-based paint hazards”; and “reduce the threat of
childhood lead poisoning in housing owned, assisted, or
transferred by the Federal Government”). Rather Congress,
recognizing that complexities of reducing lead-based paint
hazards, enacted statutes to provide EPA the discretion to
promulgate regulations to facilitate the reduction of lead-
based paint hazards as necessary. See 15 U.S.C. §§ 2601,
2681, 2683, 2685, 2687.
To determine the intent of Congress in enacting the TSCA
and RLBPHRA, we “begin, as always, with the language of
the statute.” Chubb Custom Ins. Co. v. Space Sys./Loral, Inc.,
710 F.3d 946, 958 (9th Cir. 2013) (quoting Duncan v. Walker,
533 U.S. 167, 172 (2001)). Words are “interpreted as taking
their ordinary, contemporary, common meaning,” “[b]ut
[w]hen a statute includes an explicit definition, we must
follow that definition, even if it varies from that term’s
ordinary meaning.” Id. (citations and quotation marks
omitted). “[B]ecause words necessarily derive meaning from
their context, interpretation of a word or phrase depends upon
reading the whole statutory text, considering the purpose and
context of the statute, and consulting any precedents or
authorities that inform the analysis.” Id. (alteration and
quotation marks omitted) (quoting Dolan v. U.S. Postal Serv.,
546 U.S. 481, 486 (2006)). “Reviewing the whole statutory
scheme is particularly important for a law such as [TSCA and
RLBPHRA], which [are] complex regulatory statute[s] . . . .”
See id.
32 A COMMUNITY VOICE V. USEPA
In cases of statutory interpretation, our role “is to construe
the language so as to give effect to the intent of Congress.”
United States v. American Trucking Ass’ns, 310 U.S. 534,
542 (1940). “If the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 842–43 (1984). Here, Congress’s intent is clear, and
EPA properly enacted regulations following Congress’s
intent.
A deeper examination into the enabling statutes of the
TSCA and RLBPHRA all demonstrate Congress’s clear
intent: EPA must consider factors beyond health when
promulgating regulations under Title IV. To begin, § 2683
provides EPA the authority to set the lead-based paint hazard
levels, and the related statutes provide EPA with the factors
it may consider in setting those levels.
1. § 2683
Section 2683 mandates that EPA “promulgate regulations
which shall identify, for purposes of [Title IV] and [Title X],
lead-based paint hazards, lead-contaminated dust, and lead-
contaminated soil.” Id. (emphasis added). Put simply, EPA
was required to identify “lead-based paint hazards” in order
administer the TSCA and RLBPHRA. The language of
§ 2683 does not limit EPA’s discretion in identification of the
hazards. For certain, nothing in § 2683 itself limits EPA’s
discretion to consider only adverse heath factors in
identifying the hazards. To the contrary, “when Congress
does not say how to take costs [or other nonrisk factors] into
account, agencies have broad discretion to make that
judgment.” Michigan v. EPA, 576 U.S. 743, 785 (2015)
A COMMUNITY VOICE V. USEPA 33
(Kagan, J., dissenting). “Far more than courts, agencies have
the expertise and experience necessary to design regulatory
processes suited to ‘a technical and complex arena.’” Id.
(quoting Chevron, 467 U.S. at 863). In carrying out the
Congressional mandate of § 2683, EPA has used its expertise
and experience to establish appropriate levels of lead-based
paint hazards that take into account Congress’s goal of risk
reduction but also considering barriers to implementing those
standards and prioritized protection.
The majority reads the statute and (out of thin air) limits
the definitions of “lead-based paint hazard,” “lead-
contaminated dust,” and “lead-contaminated soil” to conclude
that EPA’s discretion was limited to considering only health
effects when it promulgated the regulations under § 2683.
Maj. Op. 15–17. This interpretation violates the
“fundamental canon of statutory construction”: “the words of
a statute must be read in their context and with a view to their
place in the overall statutory scheme.” King v. Burwell,
576 U.S. 473, 492 (2015) (quoting Util. Air Regulatory Grp.
v. EPA, 573 U.S. 302, 320 (2014)). The definitions (upon
which the majority relies) do not statutorily foreclose EPA
from considering nonrisk factors in promulgating regulations
under § 2683. To the contrary, § 2683 is silent with regard to
this issue.3 However, the statutory scheme and the specific
language of related statutes all lead to EPA having discretion
to set levels with consideration of all factors, including
nonrisk factors.
3
Even if interpretation of § 2683 and § 2681 were read in isolation,
“the statute is silent or ambiguous as to the issue at hand.” Alaska
Wilderness League v. Jewell, 788 F.3d 1212, 1218 (9th Cir. 2015). Thus,
we would then have to “defer to the agency’s reading so long as its
interpretation is a reasonable one.” Id.
34 A COMMUNITY VOICE V. USEPA
2. § 2601(c)
The Sixth Circuit correctly determined that the “TSCA
was enacted with the Congressional intent that EPA be
permitted to ‘carry out this chapter in a reasonable and
prudent manner and . . . consider the environmental,
economic, and social impact of any action’ it takes or intends
to take.” Lockett v. United States, 938 F.2d 630, 636 (6th Cir.
1991) (alteration in the original) (quoting 15 U.S.C.
§ 2601(c)). Thus, Congress mandated that EPA identify
“dangerous levels of lead,” taking into consideration both
health and nonrisk factors in its proposed regulations, which
EPA properly did. See 15 U.S.C. §§ 2601(c), 2683.
Other sister circuits have similarly concluded that
§ 2601(c) applies to EPA’s promulgation of regulations under
the TSCA. See Nat’l Ass’n of Home Builders v. EPA,
682 F.3d 1032, 1039 (D.C. Cir. 2012); Corrosion Proof
Fittings v. EPA, 947 F.2d 1201, 1222 (5th Cir. 1991); Chem.
Mfrs. Ass’n v. EPA, 899 F.2d 344, 348 n.5 (5th Cir. 1990);
Ausimont U.S.A. Inc. v. EPA, 838 F.2d 93, 95 (3d Cir. 1988).
Importantly, the D.C. Circuit applied § 2601(c) to Title IV,
specifically in relation to § 2682. It noted:
The TSCA was passed in 1976 with the
following preface: “It is the intent of Congress
that the Administrator shall carry out this
chapter in a reasonable and prudent manner,
and that the Administrator shall consider the
environmental, economic, and social impact
of any action the Administrator takes or
proposes to take under this chapter.”
15 U.S.C. § 2601(c) (emphasis added).
Although the TSCA thus “expressly requires
A COMMUNITY VOICE V. USEPA 35
the Administrator to consider” the “economic
consequences” of action taken under the Act,
Envtl. Def. Fund v. EPA, 636 F.2d 1267, 1276
(D.C. Cir. 1980), this does not mean that the
regulation’s benefits must outweigh its costs.
Nat’l Ass’n of Home Builders, 682 F.3d at 1039. The D.C.
Circuit recognized that § 2682(a)(1) also required that the
promulgated “regulations shall contain standards for
performing lead-based paint activities, taking into account
reliability, effectiveness, and safety.” Id. (“Indeed, when
Congress amended the TSCA in 1992 to authorize regulations
addressing lead-paint hazards, it instructed EPA to “tak[e]
into account reliability, effectiveness, and safety”—but did
not mention cost.”). Accordingly, the court concluded that
this additional language did not alter EPA’s duty to take costs
into consideration nor did it require EPA conduct a cost-
benefit analysis. Id. at 1039–40. Here, by contrast, § 2683
does not mention any of the § 2601(c) factors, nor does it
contain any limiting language that would alter § 2601(c)’s
mandate. Further, § 2681(10) does not mention
“environmental, economic, and social impact[s],” thus, EPA’s
duty to consider these factors remain. See Nat’l Ass’n of
Home Builders, 682 F.3d at 1039. As our sister circuits all
have concluded, the language of § 2601 is clear and applies
to the promulgation of regulations under Chapter 53, which
includes § 2683.
Congress’s mandate that § 2601(c) is applied throughout
Chapter 53 is clear and unambiguous. Nowhere in either
Title IV or Title X is there any language limiting EPA to
consider only health-risk factors in promulgating regulations
under § 2683. Although the definition sections reference
health effects for purposes of defining the term, they do not
36 A COMMUNITY VOICE V. USEPA
preclude EPA from using its discretion in setting hazardous
levels in consideration of § 2601(c). To the contrary, if that
were the case, then EPA would seemingly have to set all of
the clearance levels at 0 µg/ft2, because there is no safe level
of lead exposure. Cf. 42 U.S.C. § 300g-1, 40 C.F.R. § 141.51
(setting maximum contaminant level goal for lead at zero).
Further, if Congress wanted to limit EPA’s consideration
of nonrisk factors, it could have excluded environmental,
economic, and social impacts from EPA’s consideration. See,
e.g., § 2605(b)(4) (conducting risk evaluations “without
consideration of cost or other nonrisk factors”). However,
Congress chose not to limit EPA’s consideration of § 2601(c)
factors in either § 2681(10) or § 2683. Thus, we must give
effect to Congress’s clear intent for EPA to consider both
health and nonrisk factors. See Russello v. United States,
464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (citation omitted)).
The majority mistakenly disregards § 2601(c) in the
interpretation of Title IV without explanation. See Setser v.
United States, 566 U.S. 231, 239 (2012). Its clear statement
of intent should be used “to assist in ascertaining the intent
and meaning of a statute fairly susceptible of different
constructions.” Price v. Forrest, 173 U.S. 410, 427 (1899);
see also Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 218 (2012) (explaining that
“[i]f a prologue is indeed an appropriate guide to meaning, it
ought to be considered along with all other factors in
determining whether the instrument is clear. The factors
A COMMUNITY VOICE V. USEPA 37
undermining its reliability affect its weight, not its
relevance”).
Petitioners’ challenges to the application to § 2601 to
§ 2683 have no merit. First, Petitioners argue that 2601(c)
“refers only to the cradle-to-grave regulation of ‘chemical
substances and mixtures’ in commerce—the subject of TSCA
Title I.” This argument fails to explain why Congress used
the phrase “this chapter” rather than “this subchapter” if it
meant to limit § 2601(c) to Title I. See Foxgord v.
Hischemoeller, 820 F.2d 1030, 1032 (9th Cir. 1987) (“It is a
maxim of statutory construction that unless otherwise
defined, words should be given their ordinary, common
meaning.”). Additionally, other sections of Title I apply
throughout the entire chapter. Petitioners do not explain why
§ 2601 would apply differently than (a) § 2627, implementing
state programs; (b) § 2618, judicial review (which we invoke
here); or (c) § 2620, allowing a citizen petition (which was
used by Petitioners to get here in the first place).
Second, Petitioners cite to Charter Township of Van
Buren v. Adamkus, 10 F. Supp. 2d 766, 770 (E.D. Mich.
1998), for the proposition that § 2601(c) is “not an operative
section.”4 Unlike the “findings” and “policy” provisions in
§ 2601 addressed there, this statement of Congressional intent
“create[s] an enforceable mandate for some additional
4
Assuming that this decision does not conflict with Lockett, 938 F.2d
at 636, “[l]egislative history cannot trump the statute.” Bonneville Power
Admin. v. FERC, 422 F.3d 908, 920 (9th Cir. 2005). Further, the
legislative history does states that this “section of the bill is not an
operative section,” however, it further states that “the intent of Congress
as stated in this subsection should guide each action the Administrator
takes under other sections of the bill.” S. Rep. 94-698, at 14 (1976),
reprinted in 1976 U.S.C.C.A.N. 4491, 4504.
38 A COMMUNITY VOICE V. USEPA
procedural step.”5 Bear Valley Mut. Water Co. v. Jewell,
790 F.3d 977, 987 (9th Cir. 2015) (citation omitted); see also
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 569 (3d Cir.
2002) (“[W]e generally assume that the best evidence of
Congress’s intent is what it says in the texts of the statutes.”).
Finally, Petitioners argue that § 2605(b)(4) and
§ 2605(c)(2) allow EPA to ignore § 2601(c) and only
consider health factors. Although § 2605(b)(4) requires EPA
to conduct “risk evaluations” “without consideration of costs
or other nonrisk factors,” § 2605(c)(2)(A) requires EPA to
“consider and publish a statement” with respect to the health,
environment, and nonrisk factors in “proposing and
promulgating a rule.” See also § 2605(c)(2)(B) (“In selecting
among prohibitions and other restrictions, the Administrator
shall factor in, to the extent practicable, the considerations
under subparagraph (A) in accordance with subsection (a).”).
Thus, these sections do not support Petitioners’ argument that
§ 2601 does not apply.6
5
The majority does not address the application of § 2601(c) to
Title IV. The majority undoubtably would not assert that § 2601(c) is
non-operative, because the majority itself (now and previously) relies
upon the non-operative statutes, 42 U.S.C. §§ 4851 (findings), 4851a
(purposes), to determine Congress’s intent. See In re A Cmty. Voice,
878 F.3d 779, 784 (9th Cir. 2017); see also Maj. Op. at 12, 15, 23.
6
Petitioners argued at oral argument that § 2601(c) did not apply to
§ 2683, and that National Association of Home Builders was
distinguishable because (1) the court found that it did not have to rely
solely upon a cost-benefit analysis in promulgating its regulations and
(2) § 2682 was distinguishable from § 2683, because § 2682 allowed EPA
to take into consideration “reliability, effectiveness, and safety.” These
arguments fail. First, the D.C.’s Circuit’s conclusion that EPA need not
conduct a cost-benefit analysis does not mean that EPA cannot consider,
in a “reasonable and prudent manner,” “the environmental, economic, and
A COMMUNITY VOICE V. USEPA 39
3. § 2681(10)
Section 2681(10) establishes that EPA also has discretion
in setting a standard that “would result in adverse health
effects.” We start with the statutory language:
The term “lead-based paint hazard” means
any condition that causes exposure to lead
from lead-contaminated dust, lead-
contaminated soil, lead-contaminated paint
that is deteriorated or present in accessible
surfaces, friction surfaces, or impact surfaces
that would result in adverse human health
effects as established by the Administrator
under this subchapter.
15 U.S.C. § 2681(10) (emphasis added). When “a list of
terms or phrases [are] followed by a limiting clause,” we
generally apply the “rule of last antecedent.” Lockhart v.
United States, 136 S. Ct. 958, 962 (2016). “The rule reflects
the basic intuition that when a modifier appears at the end of
a list, it is easier to apply that modifier only to the item
directly before it.” Id. at 963. Thus, applying the rule here
the clause would only modify “would result in adverse human
health effects.” See id. at 962–63. It is then clear that
Congress intended EPA to exercise its discretion in setting
hazard standards, and that discretion included a level of
certainty that adverse human health effects would occur. See
social impact” of its proposed regulations. See Nat’l Ass’n of Home
Builders, 682 F.3d at 1039 (quoting 15 U.S.C. § 2601(c)). Second, the
fact that § 2682 allowed EPA to consider other discretionary factors, does
not alter how § 2601(c) should apply equally to “any action” taken under
Title IV of the TSCA. See § 2601(c) (emphasis added).
40 A COMMUNITY VOICE V. USEPA
Nat’l R.R. Passenger Corp. v. Bos. & Maine Corp., 503 U.S.
407, 417 (1992) (“Judicial deference to reasonable
interpretations by an agency of a statute that it administers is
a dominant, well-settled principle of federal law.”).
The majority mistakenly asserts that § 2681(10) “requires
the EPA to identify ‘any condition’ of lead in dust, paint, and
soil resulting in adverse human health effects.” Maj. Op. 10
(emphasis added). In order to reach this conclusion, the
majority improperly applies the rule of last antecedent to
conclude that “as established by” EPA modifies “any
condition.” Then, the majority uses Congress’s goal “to
develop a national strategy to build the infrastructure
necessary to eliminate lead-based paint hazards in all housing
as expeditiously as possible,” 42 U.S.C. § 4851a(1), as the
basis to conclude that “[t]he natural reading is that the
delegation to the EPA is to establish the conditions that cause
harm, not what constitutes harm,” Maj. Op. 15. However,
Congress’s stated goal to “eliminate lead-based pain hazards”
does not overcome the rule of the last antecedent.7 Although
“the rule of the last antecedent ‘is not an absolute and can
assuredly be overcome by other indicia of meaning,’” it
should not be “a heavy lift to carry the modifier across” the
7
The majority interprets § 2681(10) based on Congress’s stated
purposes. See Maj. Op. 15 (citing 42 U.S.C. § 4851a(1)). However,
Congress’s stated goals should not be used to justify ignoring clear
congressional intent and imposing unmandated requirements on the
agency. See Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 178 (D.C.
Cir. 1982) ([I]t is one thing for Congress to announce a grand goal, and
quite another for it to mandate full implementation of that goal.”).
Further, Congress understood that to reach the goal of lead-based-paint-
hazard elimination in all housing, development of the “most promising,
cost-effective methods for evaluating and reducing lead-based paint
hazards” was necessary. § 4851a(5).
A COMMUNITY VOICE V. USEPA 41
“individual entries in the list.” See Lockhart, 136 S. Ct.
at 963 (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)).
The majority’s reading is not only a “heavy lift,” it also
ignores other indicia of meaning within the statutory scheme
(as discussed), supporting EPA’s discretion to identify what
constitutes harm.
To further support application of the “rule of the last
antecedent” to § 2681(10), the definitions of lead-
contaminated dust and lead-contaminated soil contain similar
modifiers and are interpreted in this same manner. First,
“lead-contaminated dust” is “surface dust in residential
dwellings that contains an area or mass concentration of lead
in excess of levels determined by the Administrator under this
subchapter to pose a threat of adverse health effects in
pregnant women or young children.” § 2681(11) (emphasis
added). Second, “lead-contaminated soil” is “bare soil on
residential real property that contains lead at or in excess of
the levels determined to be hazardous to human health by the
Administrator under this subchapter.” § 2681(12) (emphasis
added).
The majority does not try to reconcile the application of
the modifier in the sections. The majority provides no
reasonable explanation why § 2681(10) should not be
similarly interpreted by the rule of last antecedent.8
8
Further complicating the application of these definitions is
Congress’s inclusion of three different standards for EPA to consider in
determining the safe levels of lead—(1) “would result in adverse human
health effects,” § 2681(10); (2) “pose a threat of adverse health effects in
pregnant women or young children,” § 2681(11); and (3) “determined to
be hazardous to human health,” § 2681(12). The definition of “lead-based
paint hazard” includes lead-contaminated paint, lead-contaminated dust,
and lead-contaminated soil. The majority ignores the fact that there are
42 A COMMUNITY VOICE V. USEPA
Interpreting § 2681(10) (as Congress intended) makes it clear
that EPA was given discretion to determine the levels that
“would result in adverse human health effects.”9 And (as
previously noted) Congress did not intend nor did it require
that EPA set the level at zero; rather, it allowed EPA, based
on its expertise, to determine levels based on “environmental,
economic, and social impact.”10 See § 2601(c).
three different standards (including references to “human health” versus
“pregnant women or young children”), referencing instead that the
standard is a “danger to human health” or a “hazard to human health.”
See, e.g., Maj. Op. 14. Given that the statute is ambiguous with regard to
how EPA should assess the human health effects when promulgating the
regulations, EPA should be given discretion. Chevron, 467 U.S. at 843.
9
Congress use of the word “would” is also telling and suggests some
certainty of harm. By contrast, Congress has required the administrator
consider pollutants that present “a threat of adverse health effects.” See
42 U.S.C. § 7412(b)(2). Thus, here, Congress chose not to require EPA
set standards with lower levels of certainty.
10
The majority claims 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 health effects.” Maj. Op. 7. It is not
clear how the majority or Petitioners want EPA to determine the “safe”
levels. EPA set the new standards to the levels originally requested by the
Petitioners. Yet now, Petitioners assert it is too high, arguing (contrary to
their 2009 Petition) that they effectively were not aware that there was no
safe level of lead exposure until the CDC’s 2012 report. Petitioners also
point out that a 5 µg/ft2 of dust on floors and 40 µg/ft2 on windowsills
(“5/40 Standards”) would still result in 2.5 percent of children developing
a blood lead level above 5 µg/dL. Given that there is no safe level of lead
exposure, it seems that EPA has few options in setting a standard that
would be or will be acceptable to the majority and Petitioners.
A COMMUNITY VOICE V. USEPA 43
4. § 2682(a)(1) & § 2685(a)
The application of both §§ 2682 and 2685 affirm that
Congress intended EPA to consider nonrisk factors in
promulgating § 2683. As noted above, Congress required
EPA to set standards for dangerous levels of lead for purposes
of implementing Title IV and Title X. In enacting lead-based
paint activities, § 2682, and state programs, § 2685, Congress
did not allow EPA to set separate lead-contaminated dust and
soil levels. Rather, Congress mandated that EPA “shall
conduct a comprehensive program to promote safe, effective,
and affordable monitoring, detection, and abatement of lead-
based paint and other lead exposure hazards,” § 2685(a), and
it should “tak[e] into account [the] reliability, effectiveness,
and safety” in drafting regulations “for performing lead-based
paint activities,” § 2682(a)(1).
Section 2682 requires EPA set forth regulations “in
consultation with the Secretary of Labor, the Secretary of
Housing and Urban Development, and the Secretary of
Health and Human Services”11 governing the training,
accreditation, and certification of persons engaged in lead-
based activities. Lead-based paint activities include
“activities conducted by a person who offers to eliminate
lead-based paint[12] or lead-based paint hazards or to plan
such activities.” § 2682(b) (emphasis added). Congress
11
Consultation with other affected agencies is also required under
42 U.S.C. § 4842. Congress’s intent that the agencies work together in
“carrying out their respective authorities” supports a conclusion that
Congress gave discretion to the agencies to determine the proper lead-
based paint hazard levels.
12
Congress does not treat lead-based paint as a “hazard” until it has
“deteriorated.” § 2681(9), (10).
44 A COMMUNITY VOICE V. USEPA
requires that the regulations “contain standards for
performing lead-based paint activities, taking into account
reliability, effectiveness, and safety.” § 2682(a)(1), (b)(1)
(emphasis added). The standards for risk assessment,
inspection, and abatement in target housing or deleading in
pre-1978 structures cannot be done reliably or effectively if
the underlying lead-based paint hazards levels are set so low
that they are neither technologically feasible nor achievable.
Similarly, § 2685 requires EPA to create a program to
promote lead exposure abatement, which includes “safe,
effective, and affordable monitoring, detection, and
abatement” of lead-based paint hazards. It further requires
EPA to also establish protocols for the “minimum
performance standards of laboratory analysis.” As with
§ 2682(a)(1), lead-based paint hazard levels (that are set
based solely on health risks) could preclude the ability to
create safe, effective, and affordable monitoring and detection
of lead-based paint hazards.
5. § 2681(9) & 42 U.S.C. § 4822(c)
The definition of lead-based paint further confirms
Congress’s intent that EPA to consider nonrisk factors in
setting lead-based paint hazards. This principle was
emphasized in Congress’s recognition that its definition of
lead-based paint should not be lowered by HUD if the testing
were not feasible or the medical evidence did not support it.
See 42 U.S.C. § 4822(c) (“The Secretary shall periodically
review and reduce the level below 1.0 milligram per
centimeter squared or 0.5 percent by weight to the extent that
reliable technology makes feasible the detection of a lower
level and medical evidence supports the imposition of a lower
level.”).
A COMMUNITY VOICE V. USEPA 45
In adopting § 2681(9), Congress provided three options
for defining lead-based paint: (1) the initial threshold level for
all “paint or other surface coatings that contain lead in excess
of 1.0 milligrams per centimeter squared or 0.5 percent by
weight” as established by Congress; (2) the established
threshold level for “paint or other surface coatings on target
housing,”13 or a lower level to be established by HUD under
42 U.S.C. § 4822(c); or (3) the established threshold level for
“any other paint or surface coatings” outside of target
housing, or some “other level” to be established by EPA.14
§ 2681(9). There is no language to mandate how EPA would
set this “other level.” However, it would be nonsensical to
suggest that EPA and HUD (who are mandated to work
together in setting levels, see 42 U.S.C. § 4853a) would be
required to establish the level based on different criteria.15
13
“The term ‘target housing’ means any housing constructed prior to
1978, except housing for the elderly or persons with disabilities or any 0-
bedroom dwelling (unless any child who is less than 6 years of age resides
or is expected to reside in such housing). In the case of jurisdictions
which banned the sale or use of lead-based paint prior to 1978, the
Secretary of Housing and Urban Development, at the Secretary’s
discretion, may designate an earlier date.” 15 U.S.C. § 2681(17);
42 U.S.C. § 4851b(27).
14
If Congress wanted to change the lead-based paint definition in the
TSCA and RLBPHRA, it could have. In fact, in 2008, Congress
implemented a change to the “limit for lead in paint” under the Federal
Hazardous Substances Act to no more than “.0009 percent.” 15 U.S.C.
§ 1278a(f)(1). Congress also allowed the Commission to lower the limits
if feasible. Id. at § 1278a(f)(2).
15
Further evidence that Congress did not intend EPA and HUD to
have different levels is the definition of “Inspection,” which means in part
“a surface-by-surface investigation to determine the presence of lead-
based paint, as provided in section 4822(c) of Title 42.” This definition
is the same for both 15 U.S.C. § 2681(7) and 42 U.S.C. § 4851b(12).
46 A COMMUNITY VOICE V. USEPA
See Chubb Custom Ins. Co., 710 F.3d at 958 (explaining that
we are “cautioned against following a literal interpretation of
a statute that would thwart the overall statutory scheme or
lead to an absurd result”).
“Statutory construction is a ‘holistic endeavor,’” requiring
us to “look not only to the ‘particular statutory language at
issue’ but also to ‘the language and design of the statute as a
whole.’” In re DBSI, Inc., 869 F.3d at 1010 (citations
omitted). For the successful implementation of Title IV and
Title X, §§ 2601(c), 2681(9), (10), 2682(a)(1), 2683, 2685(a),
and 42 U.S.C. § 4822(c) all establish that lead-based paint
hazards must consider factors other than health. To conclude
otherwise would ignore clear Congressional intent and further
lead to absurd results.
C. A comparison with the Clean Air Act does not alter
this analysis.
The majority mistakenly tries to support its statutory
interpretation by citing Whitman v. American Trucking
Associations, 531 U.S. 457 (2001). In particular, the majority
argues that Clean Air Act’s statutory “pattern” is the same as
that found in Title IV, arguing that § 2682(a)(1) “address[es]
how the standards should be implemented and expressly
take[s] into account practical considerations,” and that
§ 2681(10) “deals only with identifying hazards.” Maj. Op.
16–17. However, Whitman’s analysis of the Clean Air
Act does not control our analysis for these reasons.
Whitman involved a provision in the Clean Air Act that
required EPA to set ambient air quality standards. 531 U.S.
at 465–67. The Supreme Court concluded that statutory
language mandating EPA to set the standards at levels to
A COMMUNITY VOICE V. USEPA 47
protect public health and welfare with “an adequate margin
of safety,” did not allow EPA to consider the costs of setting
the standards. Id. at 465 (quoting 42 U.S.C. § 7409(b)(1)).
The Supreme Court found the statutory language “absolute.”
Id. It explained that the language of the statute required
“[t]he EPA, ‘based on’ the information about health effects
contained in the technical ‘criteria’ documents compiled
under § 108(a)(2), 42 U.S.C. § 7408(a)(2), . . . to identify the
maximum airborne concentration of a pollutant that the
public health can tolerate, decrease the concentration to
provide an ‘adequate’ margin of safety, and set the standard
at that level.” Id. The Supreme Court recognized that,
because costs were “so indirectly related to public health and
so full of potential for canceling the conclusions drawn from
direct health effects,” Congress would have mentioned costs
if they were to be included. Id. at 469. Additionally,
“[a]ttainability and technological feasibility [were] not
relevant considerations in the promulgation of national
ambient air quality standards.” Am. Petroleum Inst. v. Costle,
665 F.2d 1176, 1185 (D.C. Cir. 1981), see id. at 1190 (“[T]he
question of attainability is not relevant to the setting of
ambient air quality standards under the Clean Air Act.”).
Title IV of the TSCA is not similar to the Clean Air Act.
First, § 7409 is a promulgation statute; § 2681 is not. Second,
unlike the Clean Air Act, Congress did not make any
provisions within Title IV or Title X to address
implementation, including a wavier to comply with the levels
set by § 2683. See Whitman, 531 U.S. at 466. Rather, in the
Clean Air Act, Congress commissioned a cost study and
provided for the costs of achievement in its enactment. Id.
Notably, Congress allowed EPA “to waive the compliance
deadline for statutory sources” and allowed costs be
considered “in implementing the air quality standards.” Id.
48 A COMMUNITY VOICE V. USEPA
at 466–67. Third, nothing in Title IV or Title X suggests that
Congress wanted EPA to set non-achievable “goal” standards
in enacting lead-based paint hazards. Finally, § 2601(c)
“show[s] a textual commitment of authority to EPA to
consider [environmental, economic, and social impacts] in
[identifying dangerous levels of lead for implementation
under § 2683].” Id. at 468. Section 2601(c) is neither written
in “vague terms” nor is it an “ancillary provision[].” Id. To
be sure, one cannot say that § 2601(c) (a part of the TSCA)
was an “elephant[] in [a] mousehole[].” Id.
Unlike the Clean Air Act, the “lead-based paint activities”
statute does not assign EPA or any other entity the ability to
develop implementation plans for § 2683. See 15 U.S.C.
§ 2682. Rather, Congress mandated that EPA ensure that
persons involved in the risk assessment, inspection, or
abatement of lead-based paint hazards had the proper training
and certifications. § 2682(a)(1). Nothing in § 2682 allows
EPA to set lesser standards for lead-based paint hazards in the
context of abatement.
The majority argues that § 2682 is a similarly situated
implementation statute, because it gives EPA latitude to
consider “reliability, effectiveness, and safety” in “remedial
measures.” Maj. Op. 25–27. Thus, the majority concludes
that § 2862 gives EPA discretion to determine post-abatement
clearance levels that take into account nonrisk factors.16 This
16
Nowhere in Title IV or Title X does Congress suggest that EPA can
enact regulations allowing for less protective “clearance levels” in the
course of abatement activities. To the contrary, the only reference to
“clearance levels” is contained within the definition of abatement. See
§ 2681(1)(B) (“[A]ll preparation, cleanup, disposal, and postabatement
clearance testing activities associated with such measures [to permanently
eliminate lead-based paint hazards.]”).
A COMMUNITY VOICE V. USEPA 49
conclusion can only be reached, based on a faulty reading of
the statute.17 Starting with the definition of lead-based paint
activities, it is unclear how the majority concludes that this
section allows for different implementation standards. Lead-
based paint activities are defined as:
(1) in the case of target housing, risk
assessment, inspection, and abatement; and
(2) in the case of any public building
constructed before 1978, commercial
building, bridge, or other structure or
superstructure, identification of lead-based
paint and materials containing lead-based
paint, deleading, removal of lead from
bridges, and demolition.
§ 2682(b).
It is these activities for which EPA should create
“standards for performing” that “tak[e] into account
reliability, effectiveness, and safety.” § 2682(1). Despite the
majority’s suggestion otherwise, this section is not limited to
the “implementation of remedial measures” (i.e., abatement).
Maj. Op. 26. To be sure, not all lead-based activities are
“remedial” in nature. First, “risk assessment” is an
“investigation to determine and report the existence, nature,
17
This conclusion that clearance levels could be higher than the
DLHS does not seem to be a position advocated by Petitioners. To be
sure, Petitioners argued that EPA’s failure to revise the clearance levels
was not a “permissible construction” of Title IV, “because it renders the
newly adopted DLHS meaningless as homes will pass clearance even if
post-abatement dust-lead is at levels considered hazardous.”
50 A COMMUNITY VOICE V. USEPA
severity and location of lead-based paint hazards in
residential dwellings.” § 2681(16) (emphasis added).
Second, “inspection,” is “a surface-by-surface investigation
to determine the presence of lead-based paint.” § 2681(7).
Both risk assessment and inspections provide information on
what, if any, actions may be taken to manage the existence of
lead-based paint or lead-based paint hazards.
If either lead-based paint or lead-based paint hazards
exist, abatement and deleading are possible remedial
measures that may be taken. “Abatement” is “any set of
measures designed to permanently eliminate lead-based paint
hazards in accordance with standards established by the
Administrator.” § 2681(1) (emphasis added). And
“deleading” includes “activities conducted by a person who
offers to eliminate lead-based paint or lead-based paint
hazards or to plan such activities.” § 2682(b). Notably, the
goals of abatement and deleading are only elimination not
reduction of lead-based paint hazards.18
The majority argues that, under § 2682, EPA can set
different (perhaps higher) clearance levels for lead-based
paint hazards because it can consider nonrisk factors. See
Maj. Op. 26 (“[T]he EPA has more discretion in setting the
clearance levels because they concern implementation of
remedial measures, rather than identification of a hazard.”).
Without citation to any authority, the majority interprets
“clearance levels” effectively to be a “waiver” of compliance
18
“The term ‘reduction’ means measures designed to reduce or
eliminate human exposure to lead-based paint hazards through methods
including interim controls and abatement.” § 2681(13). Interim controls
are “designed to reduce temporarily human exposure or likely exposure
to lead-based paint hazards.” § 2681(8).
A COMMUNITY VOICE V. USEPA 51
with the DLHS. However, EPA defines clearance levels as
“the maximum amount of lead permitted in dust on a surface
following completion of an abatement activity.” 40 C.F.R.
§ 745.223 (2020) (emphasis added). Again, abatement is
designed “to permanently eliminate lead-based paint hazards”
not merely reduce them. § 2681(1). Thus, applying the
majority’s interpretation would create a “never ending loop,”
wherein lead-based paint hazards may never be eliminated.
For example, federally owned pre-1960 target housing
“require[s] the inspection and abatement of lead-based paint
hazards.” 42 U.S.C. § 4822(a)(3)(A) (emphasis added). If
lead-based paint hazards are set to identification levels at
10 µg/ft but implementation (clearance levels) are set at
40 µg/ft, abatement (i.e., permanent elimination) of lead-
based paint hazards could not be achieved. In other words,
the clearance level would suggest the abatement was
successful,19 yet lead-based paint hazards would still exist,
precluding compliance with § 4288(a)(3)(A). The majority’s
interpretation would create an absurd result, allowing
abatement of lead-based paint or lead-based paint hazards to
result in higher levels of exposure.
The Resource Conservation and Recovery Act (“RCRA”)
also does not support the majority’s reading. Congress
instructed EPA to designate facilities as either “sanitary
landfills” or “open dumps.” 42 U.S.C. § 6944(a). Congress
provided that a facility may only be classified as a “sanitary
19
In setting the current clearance levels, EPA recognized that “[t]he
DLHS are used to identify dust-lead hazards and the [clearance levels] are
used to demonstrate that specific abatement activities have effectively and
permanently eliminated those hazards.” Review of Dust-Lead Post-
Abatement Clearance Levels, 85 Fed. Reg. 37810-01, *37811 (June 24,
2020).
52 A COMMUNITY VOICE V. USEPA
landfill” “if there is no reasonable probability of adverse
effects on health or the environment from disposal of solid
waste.” Id. (emphasis added). The phrase “no reasonable
probability” was challenged, suggesting that the phrase
required EPA to consider costs. See Util. Solid Waste
Activities Grp. v. EPA, 901 F.3d 414, 448 (D.C. Cir. 2018).
The D.C. court rejected the argument, because there was no
authority for EPA to consider costs. Id. at 448–49.
Again the majority’s reliance on RCRA to support its
interpretation fails. Unlike the § 6944(a), 15 U.S.C. § 2683
is silent on how EPA promulgate regulations identifying lead-
based paint hazards for the administration of Title IV and
Title X. And nothing in the RCRA suggests that EPA could
consider other criteria, whereas, the TSCA includes an
explicit authorization to consider other factors. See 15 U.S.C.
§ 2601(c).
In summary, EPA is not “rewrit[ing] clear statutory
terms,” Maj. Op. 19 (quoting Util. Air Regulatory Grp. v.
EPA, 573 U.S. 302, 328 (2014)); the majority is. The
majority refuses to interpret the statute as a whole, instead
taking statutes out of context in an effort to follow Whitman.
But “[c]ontext is a primary determinant of meaning.” A.
Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 167 (2012). “Statutory construction is a ‘holistic
endeavor,’” requiring us to “look not only to the ‘particular
statutory language at issue’ but also to ‘the language and
design of the statute as a whole.’” Zazzali v. United States (In
re DBSI, Inc.), 869 F.3d 1004, 1010 (9th Cir. 2017) (citations
omitted). If the majority considered the statute as a whole,
instead of cherry picking and misinterpreting sections to help
support its theory, it would conclude that Congress was clear
A COMMUNITY VOICE V. USEPA 53
when it provided EPA discretion to set the level in
consideration of both health and nonrisk factors.20
II. EPA was not required to update soil-lead hazard
standards.
In 2018, EPA summarized its proposed rule as follows:
Addressing childhood lead exposure is a
priority for EPA. As part of EPA’s efforts to
reduce childhood lead exposure, EPA
evaluated the current dust-lead hazard
standards (DLHS) and the definition of lead-
based paint (LBP). Based on this evaluation,
EPA is proposing to lower the DLHS from
40 µg/ft and 250 µg/ft to 10 µg/ft and
100 µg/ft on floors and window sills,
respectively. EPA is proposing no changes to
the current definition of LBP due to
insufficient information to support such a
change.
Review of the Dust-Lead Hazard Standards and the
Definition of Lead-Based Paint, 83 Fed. Reg. 30889-01,
*30889 (July 2, 2018) (footnotes omitted).
20
The majority asserts that in 2001, EPA “embraced the
‘identification versus implementation’ distinction” in enacting those
regulations. Maj. Op. 19. Even if this claim were true, EPA has acted
consistently in enacting the regulations, considering both health and
nonrisk factors. See Lead; Identification of Dangerous Levels of Lead,
66 Fed. Reg. 1206-01, *1231–32 (Jan. 5, 2001); see also Lead;
Identification of Dangerous Levels of Lead, 63 Fed. Reg. 30302-01,
*30313 (June 3, 1998).
54 A COMMUNITY VOICE V. USEPA
The proposed rule did not address soil-lead hazard
standards. EPA did not specifically request comments on
soil-lead hazard standards. Instead, EPA requested comments
with regard to the proposed DLHS and lead-based paint
definition. See id. at *30890, *30895–97, * 30899. In
response to EPA’s request, several commenters requested
EPA revise the soil-lead hazard standards. EPA then
responded that the soil-lead hazards standards were “not
included in the proposed rule and [were] not within the scope
of the rulemaking.” Additionally EPA explained that soil-
lead hazard standards required different studies and analyses
that were separate from DLHS.
A. The 2017 Writ did not include soil-lead hazard
standards.
In this petition for review, Petitioners challenge EPA’s
final rule entitled “Review of the Dust-Lead Hazard
Standards and the Definition of Lead-Based Paint.”
Petitioners argue that this final rule violates the TSCA by not
updating the soil-lead hazard standards. Petitioners have no
basis for this argument: (1) Petitioners did not request
rulemaking for lead-contaminated soil in its 2009 petition.
(2) The 2017 Writ did not require rulemaking for lead-
contaminated soil. In granting the 2017 Writ, the majority
found that EPA had a duty under the APA to engage in
rulemaking for only dust level hazard standards and the
definition of lead-based paint (NOT lead-contaminated soil).
A Cmty. Voice, 878 F.3d at 785. (3) Petitioners have the
burden of showing that the agency action was “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Because
rulemaking for lead-contaminated soil was not part of the
2009 petition nor required by our court’s 2017 Writ, EPA’s
A COMMUNITY VOICE V. USEPA 55
decision not to address lead-contaminated soil in the 2019
rulemaking (even with an “ongoing duty”21) was neither
arbitrary nor capricious.22 See Compassion Over Killing v.
U.S. Food & Drug Admin., 849 F.3d 849, 854 (9th Cir. 2017)
(“When an agency refuses to exercise its discretion to
promulgate proposed regulations, the Court’s review is
extremely limited and highly deferential.” (internal quotation
marks omitted) (quoting Massachusetts v. EPA, 549 U.S.
497, 527–28 (2007))). EPA was well within its discretion to
limit the 2019 rulemaking to “fully respond to Petitioners’
rulemaking petition” as directed by this court, which did not
include soil-lead hazards standards.
Neither Petitioners nor the majority explain why EPA’s
decision not to include soil-lead hazards standards in its 2019
rulemaking violated the TSCA. Petitioners do not claim the
soil-lead hazard standards were within the scope of the
rulemaking. Instead, they assert EPA provided “no
timetable” for when it would conduct analyses and assert that
EPA had an obligation to address the comments to the
rulemaking even if they were “outside the scope.” Neither of
these arguments establish that EPA’s decision was arbitrary
or capricious. The majority asserts that EPA violated its
“statutory obligations” in enacting the final rule, because it
21
The majority concluded in A Community Voice that § 2687
mandated that EPA has an “ongoing duty” to amend the regulations.
878 F.3d at 784. Although I am bound by that decision, I continue to
disagree that § 2687 mandates any action.
22
Congress did not mandate any statutory deadline for revising
regulations, leaving in EPA’s discretion to amend the regulations “from
time to time as necessary.” § 2687. Because EPA has discretion to
determine the acceptable levels, the fact that EPA’s prior levels were set
in 2001 does not clearly require EPA to revisit the current levels.
56 A COMMUNITY VOICE V. USEPA
has an “‘ongoing’ duty to update standards.” Maj. Op. 24.
However, a statutory obligation to update the soil-lead hazard
standards does not require EPA to address the soil standards
in the 2019 rulemaking. The majority cannot explain why
EPA was required to include soil-lead hazard standards in this
rule. As a result, it ignores the standard of review and
concludes that EPA violated the TSCA, because the lead-
contaminated soil levels are too high, based solely on passage
of time and its determination that “there is no safe level of
lead in blood.” Id.
It is important to note that the majority does not conclude
that EPA violated the 2017 Writ or that EPA was arbitrary
and capricious for not including soil-lead hazard standards in
the rulemaking. Rather, the majority jumps to the conclusion
that EPA violated the TSCA. Id. at 26. Remember, the
petition before us only challenges the 2019 rulemaking,
limiting our jurisdiction. See 15 U.S.C. § 2618(a)(1). If there
were no violation of the 2017 Writ, EPA’s failure to meet its
“statutory obligations” under the TSCA is not properly before
us.
B. EPA did not need to address comments outside the
scope of its rulemaking.
EPA did not act arbitrarily or capriciously when it
responded to soil-lead related comments in its rulemaking.
EPA is not required to address comments outside the scope of
the rulemaking. See Am. Fuel & Petrochemical
Manufacturers v. EPA, 937 F.3d 559, 585 (D.C. Cir. 2019),
cert. denied sub nom. Valero Energy Corp. v. EPA, 140 S. Ct.
2792 (2020) (agreeing that EPA “correctly dismissed
comments” that were “outside the scope” of the rule). To the
contrary, the agency is only required to respond to comments
A COMMUNITY VOICE V. USEPA 57
that are “relevant to the agency’s decision and which, if
adopted, would require a change in an agency’s proposed rule
[because they] cast doubt on the reasonableness of a position
taken by the agency.” Nat’l Min. Ass’n v. Mine Safety &
Health Admin., 116 F.3d 520, 549 (D.C. Cir. 1997) (per
curiam) (alteration in the original) (quoting Home Box Off.,
Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. Cir. 1977). The soil-
lead hazard standards are separate and distinct from the
DLHS. Thus, EPA did not need to address the comments.
Further, even if the comments were relevant, EPA’s
regulation is not arbitrary and capricious, unless it “failed to
address significant comments raised during the rulemaking.”
Ass’n of Priv. Sector Colleges & Universities v. Duncan,
681 F.3d 427, 441–42 (D.C. Cir. 2012). Here, EPA explained
that the comments were outside the scope and required
different analyses; nothing more is required. See Nat’l Min.
Ass’n, 116 F.3d at 549 (explaining that the requirement to
respond is not “particularly demanding”). Accordingly,
nothing in this record establishes that EPA’s decision not to
update soil standards in the 2019 rulemaking was arbitrary or
capricious.
***
The statutory scheme of the TSCA and RLBPHRA
authorized EPA to consider both health and nonrisk factors in
setting the DLHS. EPA did not act arbitrarily or capriciously
in setting those levels. Nor did EPA violate the 2017 Writ in
declining to set soil-lead hazard standards. Accordingly, the
petition for review should be denied on these grounds.