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(c) 2018 Jon L Gelman, All Rights Reserved.

Friday, December 29, 2017

2018 May Bring Reduced Lead Exposure in the Workplace

Lead paint exposure and resulting illness in the workplace may be reduced following a Federal 9th Circuit Court of Appeals decision this week. The Court mandated that the United States Environmental Protection Agency act upon a rulemaking petition concerning dust-levels and lead-paint standards.

The panel held that the EPA was under a duty stemming from the Toxic Substances Control Act and the Residential Lead-Based Paint 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. 

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.


Facts:


“This 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.” In re a Community Voice v U.S. Environmental Protection Agency, No, 16-72816, Decided December 27, 2017 (9th Cir 2017).


Opinion:


“Under the TSCA and the Paint Hazard Act, Congress set EPA a task, authorized EPA to engage in rulemaking to accomplish that task, and set up a framework for EPA to amend initial rules and standards in light of new information. The new information is clear in this record: the current standards for dust-lead hazard and leadbased paint hazard are insufficient to accomplish Congress’s goal, thereby creating an “obvious need, apparent to [the EPA.]” See Pub. Citizen Health Research Grp., 702 F.2d at 1154. Furthermore, because the EPA granted the Petitioners’ rulemaking petition, it came under a duty to conclude the rulemaking proceeding within a reasonable time. See id.; In re Int’l Chem. Workers Union, 958 F.2d at 1150.”

“We thus conclude the EPA is under a duty stemming from the TSCA and the Paint Hazard Act to update lead-based paint and dust-lead hazard standards in light of the obvious need, and a duty under the APA to fully respond to Petitioners’ rulemaking petition. A writ of mandamus is appropriate if Petitioners have made a showing that the delay has been unreasonable.”

“Having determined that Petitioners are entitled to mandamus, we now turn to the question of the contents of the writ. Petitioners ask that we order EPA to issue a proposed rule within ninety days and a final rule within six months. EPA does not provide an alternative timeline, other than itsvague intention to issue a proposed rule in four years and a final rule in six, a timeline we hold to be unreasonable.”


Analysis:


Workers are exposed to lead paint while working in older homes and it can result in the latent manifestation of an occupational illness. Stricter US EPS rules have the potential of reducing exposure in the workplace and future occupational illness.

“The worker becomes exposed to lead when dust and fumes are inhaled and when lead is ingested through contamination on hands, water, food, and clothing. When lead enters the respiratory and digestive tracts of the human body it is released into the blood and distributed throughout the system. More than 90% of the body's lead is accumulated in the bones where it is stored for many years. The bones then release the lead back into the bloodstream and re-expose the system long after the original occupational exposure has ceased.” Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 9.24 (Thomson-Reuters 2017).

“Lead damages the blood-brain barrier and subsequently damages brain tissue. Workers exposed to lead may experience fatigue, irritability, insomnia, headaches and other subtle effects of mental and intellectual decline. Prolonged exposure to lead may present symptoms such as anemia. Lead inhibits the synthesis of heme and damages the ion transport system in the red blood cell membranes. Chronic high exposure to lead may result in chronic nephropathy and in some extreme cases, kidney failure.” Id.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.