The U.S. Environmental Protection Agency is seeking to insulate itself from statutory requirements that it implement lead-safe housing rules that were due by law a decade ago. In a recent court filing, EPA claims that once six years have elapsed it can no longer be compelled to comply with the law. EPA struck this novel legal posture in a motion to dismiss a lawsuit brought by Public Employees for Environmental Responsibility (PEER) and a coalition of public health and community organizations.

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By law, EPA was supposed to adopt lead-safe regulations for repairs and renovations in older housing by October 28, 1996. Up until 2005, EPA claimed that, while tardy, it was still working to develop the rules. That year, however, PEER discovered the EPA public statements were false and that the agency had made a secret decision to abandon the rules altogether. PEER filed suit against EPA in December 2005. healthren.com

In its initial reply, EPA did not raise the issue of timeliness but, in a motion filed on August 31, 2006, EPA contends that the PEER suit is too late: “PEER was required to bring its claim by October 28, 2002.”

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“EPA is wrong on the law and is morally wrong in shirking its clear public health responsibility to protect children,” stated PEER General Counsel Richard Condit, who filed the suit. “Every day that goes by without the lead-safe rules in place, EPA commits a new violation; its legal obligations do not lapse.”

The law at issue requires all remodeling in buildings constructed before 1978 be performed by certified contractors and workers trained in lead-safe practices. According to EPA, each year, approximately 7 million home renovations produce hazardous quantities of lead dust exposing tens of thousands of American children who suffer irreversible damage, such as lost IQ points and developmental disabilities. In Chicago, for example, one in five children under age 5 has dangerously elevated blood-lead levels.

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“The implications of EPA’s latest position are just appalling – the agency can run out the clock by assuring everyone that it is working on compliance and then suddenly claim that is immune from suit,” stated PEER Senior Counsel Paula Dinerstein, who co-authored PEER’s reply brief filed today in federal district court in the District of Columbia. “Congress does not write laws in ink that evaporate after six years.” healthren.com

Under pressure from U.S. Senator Barack Obama and other Democrats, EPA finally proposed a lead-based paint renovation rule earlier this year that would apply only to housing occupied by children under age 6. This proposed rule omits protections for day-care centers; housing occupied by pregnant women or children over age 6; as well as vacant buildings that could later house families with young children.

At the same time, the Senate is considering the nomination of Roger Martella to serve as EPA General Counsel. Martella, as EPA’s Deputy General Counsel, presumably approved this latest filing.

“If this eleventh hour assertion of immunity is the sort of legal tactic we can expect from Mr. Martella, the public would not be well-served by promoting him,” Condit added. healthren.com