Court orders EPA to fix outdated lead hazard standards

The 2-1 decision by the U.S. Court of Appeals for the 9th Circuit directs the EPA to propose a new rule regulating lead-contaminated indoor dust and lead-based paint within 90 days and issue a final ruling one year later. 

The EPA in a statement Thursday did not say whether the agency plans to appeal the decision. The agency said it is reviewing the decision.

The EPA finalized its current lead hazard rule back in 2001 based on then-available research, but since that time, the understanding of the dangers of lead exposure in children has advanced while EPA's standards have not changed, the 9th Circuit Court ruled.

After years of delay under President Barack Obama, the EPA under the Trump administration has said it needs until 2023 to finalize a new rule. 

The 9th Circuit Court on Wednesday sided with environmental and health groups that first petitioned the EPA in 2009 to tighten its rules on lead in dust, soil and paint. Groups asked the courts in August 2016 to decide whether the EPA "unreasonably delayed" the rule change. 

In issuing its decision, the court determined EPA delayed despite mounting scientific research establishing no safe level of lead exposure is acceptable for children.

“We are mindful of the need for EPA to issue a well-conceived rule, and not merely a rule … We must observe, however, that EPA has already taken eight years, wants to delay at least six more, and has disavowed any interest in working with petitions to develop an appropriate timeline through mediation,” the ruling said.

Soil cleanup standards

Wednesday's ruling did not specifically address EPA's soil cleanup standards of 400 parts per million, first set in 2001.

However, the agency has repeatedly said it needs to address its soil standards and, earlier this year, EPA Region 5 acting Administrator Robert Kaplan said EPA had not ruled out additional cleanups in East Chicago if residential standards are lowered.

Kaplan is being replaced as acting head of EPA Region 5 by Trump-pick Cathy Stepp. 

Maritza Lopez, a Superfund homeowner, welcomed the court order but added residents need a strong voice in any rule changes.

"If it's done, it needs to be done right," she said. 

Any local impacts are not immediately clear, but this new development may play a role in January as residents argue their case before a federal judge for say in negotiations between the EPA and polluters held financially responsible for the contamination.  

Lopez, who is arguing for intervention, said the court order Wednesday could be favorable for them because it shows a need to hold the agency accountable and increase protections at the site. 

Nearly half of the 102 Superfund homes tested by the EPA this year had evidence of lead paint. Lead-contaminated dust has also been found. 

Debbie Chizewer, an attorney working pro bono for residents, said the 9th Circuit's decision "is a long overdue and big win for children."

"There is no disagreement on the science. No level of lead is safe. EPA's current lead dust standards are insufficient," Chizewer said. "In that spirit, we hope that EPA Region 5 will recognize that its current protocol for evaluating and abating indoor lead dust at the USS Lead Site is also inadequate, and pose a severe risk to children. It need not wait for EPA's court-required final rule to update its approach based on available science."

Cleanup costs have nearly quadrupled to $84.9 million and do not include costs for indoor dust removal and cleanup of the West Calumet property.