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

federal lead hazard standard is 40 µg/ft 2 for dust on floors – and for soil is 400 ppm in play areas, and
1200 ppm elsewhere in a yard. 509 )
Conclusions of Law
EPA concluded as a matter of law that:
• The respondents were persons under RCRA.
• The lead dust constituted “solid waste.”
• The solid waste “has been and/or is currently being handled, stored, treated, or disposed of” at the
property.
• Conditions at the property “may present an imminent and substantial endangerment to health and
the environment” arising from the “past or present handling, storage, treatment or disposal of lead
dust.”
• One respondent had been and was “currently contributing to the handling and/or storage, treatment
and/or disposal” of the solid waste.
• The actions required by EPA’s order were consistent with RCRA, and necessary to protect health
and/or the environment. 510
Actions Ordered
EPA ordered the respondent to abate the lead at the property, beginning with the dance studio. The
abatement was to include lead dust on all interior surfaces and furniture, lead contaminated debris and
equipment, and other objects contaminated with lead dust. The UAO also required the respondent to
perform related measures, including occupant protection, clearance testing, and reporting to EPA. 511
D. Citizen Suits
Section 7002 of RCRA allows any person to initiate a civil action against a person “who has contributed or is
contributing to the past or present handling, storage, treatment, transportation, or disposal” of a solid waste
(or hazardous waste) which “may present an imminent and substantial endangerment to health or the
environment.” 512 Since Sections 7003 and 7002 contain an endangerment standard and many other
identical terms, analysis of the requirements for a Section 7003 action is instructive in construing Section
7002. 513
Section 7002 differs significantly from Section 7003 in that a person may not commence a Section 7002
action:
• If EPA (or the state) has commenced and is “diligently prosecuting” an action in court to require
compliance with RCRA; or
• Unless the person has provided 90 days prior notice to EPA, the violator, and the state in which the
alleged violation occurs. 514
509 40 C.F.R. § 745.65(b)-(c).
510 Fall River UAO, supra note 478, section I.
511 Fall River UAO, supra note 478, section II.
512 42 U.S.C. § 6972(a)(1)(B). For an example of the use of RCRA Section 7002 to address LBP, see Neltner, supra note 479.
513 See e.g., RCRA Section 7003 Guidance, at 5 and citations therein, supra note 476.
514 42 U.S.C. § 6972(b). Private actions also may be possible under state and/or local laws, including common law claims for
negligence or breach of contract where a child has been poisoned by LBP in rental property.
NATIONAL CENTER FOR HEALTHY HOUSING www.nchh.org 69