B. Federal Lead-Based Paint Enforcement Bench Book - National ...

2. Requirements
EPA must make three seminal determinations to invoke Section 7003:
• A person 480 has contributed or is contributing to the handling, storage, treatment, transportation, or
disposal of a “solid waste.”
The statute defines “solid waste” to include “refuse . . . and other discarded material,” 481 and this
term has been liberally construed. 482 EPA determined that lead dust and deteriorated LBP
constituted RCRA solid waste in 17 th Street Trust and Fall River.
• The potential endangerment stems from the past or present “handling, storage, treatment, transportation,
or disposal” of the solid waste.
EPA need only show that one of these activities has occurred or is occurring, 483 and need not
necessarily distinguish which one. (In 17 th Street Trust and Fall River, the Agency made no
distinction.) “Handling” has been construed liberally – and “storage,” “transportation,” and
“disposal” also may apply to a LBP case. 484
• The condition “may present an imminent and substantial endangerment to human health or the
environment.”
EPA determines whether a situation may present an “imminent and substantial endangerment” on a
case-by-case basis. An “endangerment” may be actual or potential harm. An endangerment is
“imminent” even if not realized for years; and is “substantial” if there is reasonable cause for concern
of serious harm to health or the environment. 485
In deciding whether an imminent and substantial endangerment exists, EPA considers several
factors, such as the sensitivity of the at-risk population, bioaccumulation, the exposure pathway, and
the level of contaminant. 486 Federal lead hazard standards provide a basis for the determination of
an imminent and substantial endangerment, since they establish the concentration levels at which the
presence of lead constitutes a hazard. 487
Typically, the Agency uses Section 7003 in response to natural resource contamination. 488 In 17 th
Street Trust and Fall River, however, EPA found an imminent and substantial endangerment where
LBP hazards had caused, or likely would cause, childhood lead poisoning.
480 42 U.S.C. § 6903(15)(e.g., individual, trust, company, association, state or federal entity).
481 42 U.S.C. § 6903(27).
482 RCRA Section 7003 Guidance, section IV and citations therein, supra note 476.
483 Id.
484 Id. “Treatment” is generally inapplicable to LBP hazards, since this term usually applies to hazardous waste Treatment,
Storage, and Disposal facilities. Id.
485 See id.
486 RCRA Section 7003 Guidance, at 11 and citations therein, supra note 476.
487 40 C.F.R. Part 745, Subpart D. See Part II.B of this book, Toxic Substances Control Act – Lead Hazard Standard.
488 RCRA 7003 has been used to respond to lead shot in wildlife; leakage of landfill leachate, chemicals, and waste into soil
and water. See e.g., RCRA Section 7003 Guidance, at 11-12 and citations therein, supra note 476.
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