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National Multi Housing Council v. EPA

ELR Citation: 32 ELR 20715
Nos. 01-1159, 292 F.3d 232/(D.C. Cir., 06/07/2002)

The court denies housing industry associations' petition to review the U.S. Environmental Protection Agency's (EPA's) decision to include all hazardous lead-containing dust and soil, regardless of source, within a Toxic Substances Control Act (TSCA) rule—known as the Lead Rule—that requires the disclosure of lead-based paint hazards. The associations claim that EPA acted arbitrarily and capriciously and contrary to congressional intent by including dust and soil contaminated by sources other than lead-based paint dust within the Lead Rule's disclosure requirements. The court first holds that Congress did not unambiguously express their intent to limit lead-based paint hazards to contamination the source of which is lead paint. The Lead-Based Paint Hazard Reduction Act, which amended TSCA, requires EPA and the U.S. Department of Housing and Urban Development to take action to protect the public from lead-based paint hazards by reducing such hazards and by requiring owners of housing built before 1978 to disclose any lead-based hazards. The Lead-Based Paint Hazard Reduction Act defines "lead-based paint hazard" as any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, or lead-contaminated paint or surfaces that would adversely impact human health. The Act does not define lead-contaminated dust and lead-contaminated soil to require the lead contamination in each to be derived from paint. The court also holds that EPA's interpretation of lead-based paint hazards to include lead-contaminated dust and lead-contaminated soil from sources other than lead paint is a permissible construction of the statute. EPA explained that its decision to cover lead in dust or soil regardless of the source of the lead was based on the fact that there is no good technical basis to determine how much lead in dust or soil in a specific room or dwelling originated from lead paint. The court then holds that in light of the associations' concession that current technology cannot ascertain where lead contamination derives from, EPA reasonably required disclosure of all lead-contaminated soil and dust regardless of source.

Counsel for Petitioners
J. Marks Moore III
West & Moore
409 Washington Ave., Ste. 1010, Baltimore MD 21204
(410) 296-4655

Counsel for Respondent
Jon M. Lipshultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Henderson, J., before Tatel and Garland, JJ.