In re A Community Voice; California Communities Against Toxics; Healthy Homes Collaborative; New Jersey Citizen Action; New York City Coalition to End Lead Poisoning; Sierra Club; United Parents Against Lead National; We Act for Environmental Justice,
U.S. Environmental Protection Agency, Respondent. A Community Voice; California Communities Against Toxics; Healthy Homes Collaborative; New Jersey Citizen Action; New York City Coalition to End Lead Poisoning; Sierra Club; United Parents Against Lead National; We Act for Environmental Justice, Petitioners,
and Submitted June 12, 2017 San Francisco, California
from the United States District Court for the Northern
District of California
Chang (argued), Eve C. Gartner, and Jonathan J. Smith,
Earthjustice, New York, New York, for Petitioners.
Rochelle L. Russell (argued), Trial Attorney, Environment
Defense Section; John C. Cruden, Assistant Attorney General,
Environment & Natural Resources Division; United States
Department of Justice, San Francisco, California; for
Before: Mary M. Schroeder and N. Randy Smith, Circuit Judges,
and Lawrence L. Piersol, [*] District Judge.
/ Environmental Protection Agency
panel granted a petition for writ of mandamus brought by
environmental groups seeking to compel the United States
Environmental Protection Act ("EPA") to act upon a
rulemaking petition it granted years ago concerning dust-lead
hazard and lead-paint standards.
panel held that it had jurisdiction to consider the mandamus
petition because three of the petitioners were California
residents, and they challenged a final EPA rule.
panel held that the EPA was under a duty stemming from the
Toxic Substances Control Act and the Residential Lead-Based
Pain Hazard Reduction Act of 1992 to update lead-based paint
and dust-lead hazard standards in light of the obvious need,
and a duty under the Administrative Procedure Act to fully
respond to petitioners' rulemaking petition.
panel held that in cases seeking mandamus, the issue of
whether the agency unreasonably delayed is evaluated under
the factors outlined in Telecomms. Research & Action
Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984)
("TRAC"). The panel held that the clear
balance of the TRAC factors favored issuance of the
writ. The panel further held that D.C. Circuit cases
buttressed this conclusion. The panel, accordingly, granted
the petition for a writ of mandamus.
panel turned to the question of the contents of the writ. The
panel ordered (1) that EPA issue a proposed rule within
ninety days of the date that this decision became final; (2)
that EPA promulgate the final rule within one year after the
promulgation of the proposed rule; and (3) that the deadlines
for both the proposed rule and final rule would only be
modified if EPA presented new information showing
modification was required.
court retained jurisdiction for purposes of ensuring
compliance until EPA issued a final order subject to judicial
N. R. Smith dissented because he would hold that neither the
Toxic Substances Control Act and the amendments in the Paint
Hazard Act nor the Administrative Procedures Act mandated the
EPA to act, and the majority therefore improperly granted a
writ of mandamus.
SCHROEDER, CIRCUIT JUDGE.
case is about the hazards of lead paint in home environments
that have been found by scientists to be more dangerous to
childrens' health than earlier supposed. It is an action
in the form of an original petition for writ of mandamus to
compel the Environmental Protection Agency ("EPA")
to act upon a rulemaking petition it granted eight years ago.
The agency does not challenge the science supporting
Petitioners' concerns, but contends its only duty under
the statute is to begin a rulemaking proceeding, and that it
has no responsibility to make any decisions within a
reasonable time or ever. The issues before us are essentially
two: whether the agency has a duty to act and, if so, whether
the delay has been unreasonable.
determining these issues, we look to the relevant statutory
provisions, the controlling law of this circuit and the more
developed law of the District of Columbia Circuit. All
strongly support granting the petition.
1992, Congress set out a comprehensive scheme to regulate,
and eventually eliminate, the risk of lead poisoning in
children from pre-1978 structures, those built before
lead-based paint was banned for consumer use. Residential
Lead-Based Paint Hazard Reduction Act of 1992, Pub L.
102-550, 106 Stat. 3672 ("Paint Hazard Act"). As
part of this program, Congress identified two types of lead
risks that needed to be regulated, lead-based paint itself,
and dust-lead hazards.
delegated to the EPA sole authority to establish national
actionable dust-lead hazard standards. 15 U.S.C. § 2683.
Congress established an initial standard for lead-based
paint, and then divided authority between EPA and the
Department of Housing and Urban Development ("HUD")
to adjust the standard lower as needed in the future, with
HUD given jurisdiction to set standards for "target
housing, " i.e., public housing, and EPA given
jurisdiction for all other locations. Id. §
2681(9). The initial definition of lead-based paint was paint
that contained "1.0 milligrams [of lead] per centimeter
squared or 0.5 percent by weight." Id.
EPA was instructed by statute to issue its initial rules
identifying dust-lead hazards within eighteen months of
October 28, 1992, the rules were not finalized until 2001,
when EPA identified the dust lead hazard for all
"[c]hild-occupied facilities." It did so in terms
of micrograms per square foot, abbreviated as
"ìg/ft2." EPA established standards for
floors and window sills as "40 ìg/ft2 on floors
or 250 ìg/ft2 on interior window sills." 40
C.F.R. § 745.65(b). Based on then available science, EPA
estimated that those standards would result in a one to five
percent chance of a child developing a blood lead level of 10
micrograms per deciliter ("ìg/dL"), which
was then believed to be the safe blood lead level.
Identification of Dangerous Levels of Lead, 66 Fed. Reg.
1206, 1215 (Jan. 5, 2001).
January of 2001, scientific research has further advanced our
understanding of the dangerousness of lead, yet the EPA's
standards have not changed. In 2007, EPA's Clean Air
Scientific Advisory Committee informed the agency that the
dust-lead hazard standards were "insufficiently
protective of children's health." In 2012, the
Center for Disease Control ("CDC") acknowledged
that there is no known safe blood lead level. CDC determined
that 5 ìg/dL, or half EPA's target level, should
be sufficient to trigger a public health response, what they
described as the "level of concern." The American
Academy of Pediatrics has said that the current dust-lead
hazard standards allow some fifty percent of all children to
have a blood lead level above the level of concern, and that
EPA's current standards are obsolete. The lead-based
paint standard set out originally by Congress also appears to
be too high to provide a sufficient level of safety. EPA does
not appear to dispute the factual record developed by
Petitioners showing that, according to modern scientific
understanding, neither the dust-lead hazard standard nor the
lead-based paint standard are sufficient to protect children.
Since the petition was filed, HUD has published guidelines
lowering the acceptable dust-lead hazard standard in public
housing for floors and window sills to the levels Petitioners
asked for in this case.
those worried about environmental hazards to childrens'
health were concerned that the standards were too lenient. Of
the eight current Petitioners, four (Healthy Homes
Collaborative, New Jersey Citizen Action, Sierra Club, and
United Parents Against Lead) filed an administrative petition
with the EPA on August 10, 2009. The petition asked the EPA
to use its rulemaking authority to "more adequately
protect . . . children, " specifically by lowering the
dust-lead hazard standards to 10 ìg/ft2 for floors and
100 ìg/ft2 for window sills, and to lower the standard
for lead-based paint to 0.06 percent lead by weight. After a
notice and comment period on the petition, EPA sent the
Petitioners a letter on October 22, 2009, "grant[ing]
[their] request" for a rulemaking, though without a
commitment to a specific rulemaking outcome (e.g., adoption
of the standards sought by Petitioners) or a specific date
certain for promulgation of the rule. EPA noted that because
it shared jurisdiction with HUD over lead-based paint, it
would work with HUD on that aspect of the petition. This
letter is the last direct communication any of the
Petitioners received from EPA prior to their filing this
meantime, both publicly and privately, however, EPA appears
to have done some work. In 2010, EPA formed a Science
Advisory Board Lead Review Panel ("SAB Panel") to
provide advice on the process. EPA sent the SAB Panel a
proposed methodology for dust-lead hazard standards in June
2010, and soon received comments noting that the approach was
reasonable. In November of 2010, EPA sent the SAB Panel an
updated proposed methodology which the SAB Panel again signed
off on. In 2011, EPA performed a literature review which
determined that technology was developed and feasible for
detecting lower levels of dust lead. The EPA also coordinated
with HUD to develop a survey of target housing to determine
whether lower lead clearance levels were feasible. The survey
was developed by June of 2012, authorized in May of 2014, and
completed in October of 2015. The survey indicated that lower
lead clearance levels were in fact feasible. EPA acknowledges
it received the survey results, but that appears to have been
the last action that EPA has taken.
filed this mandamus petition about nine months later, in
August of 2016, asking this court to hold that EPA has
unreasonably delayed promulgation of the promised rule, and
asking that this court compel EPA to issue a proposed and
final rule in the near future. EPA responded that it has been
working diligently and that mandamus is unnecessary. EPA