The Regulation of Lead-Based Paint

**in Air Force Housing**

# Major Thomas F. Zimmerman\*

### I. INTRODUCTION

Childhood lead poisoning has been referred to as the "silent
epidemic"[^1] and characterized as "the most common environmental
disease of young children . . . eclipsing all other environmental health
hazards found in the residential environment."[^2] Approximately 8.9
percent of all children in America under the age of six have blood lead
levels in excess of toxic levels (10 μg/dL).[^3] Lead in the bloodstream
at low levels has been associated with decreased intelligence, impaired
neurobehavioral development, decreased growth, decreased hearing acuity,
and reduced weight at birth.[^4] Part II of this article discusses lead
poisoning in-depth. The most common cause of elevated blood lead levels
in children is lead-based paint.[^5] As with many other environmental
hazards, lead-based paint falls within the regulatory scope of a number
of environmental statutes, including the Lead-Based Paint Poisoning
Prevention Act,[^6] the Residential Lead-Based Paint Hazard Reduction
Act of 1992,[^7] the Resource Conservation and Recovery Act (RCRA),[^8]
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA),[^9] and state environmental statutes. This article
analyzes the regulation of lead-based paint in Air Force housing.

The current Air Force lead-based paint program[^10] was initiated in
1993 and requires installations to identify, evaluate, control and
eliminate lead-based paint hazards. These requirements presently exceed
all federal statutory and regulatory requirements. Part III of this
article identifies federal lead-based paint requirements which are
applicable to Air Force housing. In addition, Part III recommends that
the implementation of the current Air Force lead-based paint program be
modified in the forthcoming Air Force Instruction and Air Force Manual.
In essence, the Air Force Instruction and Air Force Manual should
clearly distinguish between lead-based paint requirements (imposed by
federal law or Air Force policy) and information which is merely
provided for guidance. After clarifying the distinction between
requirements and guidance, the Instruction and Manual should allow each
installation the discretion to determine how to best identify, evaluate,
control and eliminate lead-based paint hazards in Air Force housing.
Part IV looks at the relationship between lead-based paint activities
and RCRA. Part V discusses the applicability of CERCLA to residential
lead-based paint hazards and concludes that CERCLA is broad enough to
encompass such hazards. However, the Environmental Protection Agency\'s
(EPA) failure to apply CERCLA to private residential lead-based paint
hazards precludes the statute's application to federal lead-based paint
hazards. Finally, Part VI examines the lead-based paint waiver of
sovereign immunity, the tort implications of the waiver, as well as the
lead-based paint programs of Massachusetts, Illinois and California.

### II. LEAD POISONING

### A. Physiological Effect

"Lead is a poison that affects virtually every system in the body."[^11]
Lead primarily affects the body by binding to numerous enzymes and
preventing them from functioning properly.[^12] Lead also affects the
translation of DNA codes in certain protein structures.[^13] Symptoms of
lead poisoning in adults may include lethargy, nausea and vomiting,
abdominal colic, and peripheral neuropathy.[^14] While lead poisoning
may affect all ages, young and unborn children are the most susceptible
portion of the population because lead has a particularly harmful effect
on a child's developing brain and nervous system.[^15] In children, high
blood lead levels (greater than 80 μg/dL) may cause convulsions, comas,
or even death.[^16] At levels as low as 10 μg/dL, lead poisoning has
been associated with decreased intelligence, impaired neurobehavioral
development, decreased growth, decreased hearing acuity, and reduced
weight at birth.[^17] Although blood lead levels may be reduced through
treatment, the neurological damage is permanent.[^18]

Lead plays no normal physiological role in the human body.[^19]
Therefore, the optimum blood lead level is zero.[^20] However, in an
industrial society, exposure to lead is inevitable. Faced with this
reality, the medical profession has continually tried to determine an
acceptable blood lead level. "Until 1943, it was widely believed that if
a child did not die of lead toxicity, there were no lasting
\[effects\]."[^21] However, in 1943, a study established that children
who had recovered from lead poisoning had a higher incidence of learning
disorders and behavior problems.[^22] The study demonstrated that
non-fatal blood lead levels may result in permanent adverse health
effects. By the mid-1960s, physicians recognized a blood lead level of
60 μg/dL as sufficiently hazardous to require treatment.[^23] In 1975,
the Centers for Disease Control (CDC) recommended 30 μg/dL as the
threshold for intervention.[^24] The CDC subsequently reduced the
intervention threshold level to 25 μg/dL in 1985 and then to 10 μg/dL in
1991.[^25] Although no safe level of blood lead has been identified,
harmful effects below 10 μg/dL have not been definitively
established.[^26]

### B. Lead Poisoning and Lead-Based Paint

The toxic effects of lead have been known for centuries. "A report by
Hippocrates in approximately 600 B.C. is believed to be the first
clinical description of lead toxicity. The Romans were also aware of the
toxic effects of lead on the human system. Pliny, Paulus Aegineta and
Vitruvius all comment on the clinical syndrome of lead poisoning."[^27]
Even Benjamin Franklin described the pernicious effects of lead in
tinkers, typesetters and painters.[^28] However, it was not until the
turn of the century that childhood lead poisoning was first described
and linked to lead-based paint.[^29] In 1908, A.J. Turner, a pioneer in
lead poisoning research, wrote that millions of houses are still "poison
traps for children's fingers, and every year furnished its quota of
ill-health and suffering, crippling and hopelessness."[^30]

Even though the risks associated with lead-based paint were well
documented early in the century, lead-based paint still remains the
major source of lead poisoning in the United States.[^31] In the United
States, it is estimated that 3.8 million homes occupied by young
children contain lead-based paint in poor or deteriorated
condition.[^32] Young children ingest lead-based paint primarily through
normal hand-to-mouth activity.[^33] Children may either ingest the
lead-based paint chips directly or ingest dust or soil that has been
contaminated by lead-based paint.[^34] As such, the dangers associated
with lead-based paint are not limited to the paint itself. Instead,
lead-based paint hazards also include lead-contaminated dust and
lead-contaminated soil.

### C. Lead Poisoning in Air Force Housing

While, as noted earlier, it is estimated that 8.9 percent of American
children under the age of six have blood lead levels greater than 10
μg/dL, the incidence of elevated blood lead levels for children residing
in Air Force housing is drastically less. In fiscal years 93-95, the Air
Force tested 30,560 children who lived on Air Force installations for
elevated blood lead levels.[^35] Of the children tested, 219 (0.7
percent) had elevated blood lead levels traceable to lead-based paint in
housing. Of the 219 children with elevated blood lead levels, 197
children had blood lead levels from 10-19 μg/dL. Twenty-two children had
blood lead levels from 20-44 μg/dL. No child had a blood lead level
higher than 45 μg/dL. While lead-based paint is a significant hazard
nationwide, this does not seem to be the case for the Air Force.

### III. LEAD-BASED PAINT LEGISLATION

In 1992, Congress passed the Residential Lead-Based Paint Hazard
Reduction Act to overhaul and "expand significantly the commitment of
the federal government to reduce and eliminate lead-based paint hazards
in older housing."[^36] In response to the new statute, the Air Force
developed an extensive, lead-based paint program to protect residents of
Air Force installations from lead-based paint hazards.[^37] The Air
Force program has been remarkably successful, as noted earlier, with a
0.7 percent incidence rate in children as compared to the national
average of 8.9 percent. The purpose of this section is to identify the
legal requirements related to lead-based paint in military housing so
that the Air Force can take advantage of the flexibility it has been
afforded and make informed decisions about how to best manage its
residential lead-based paint program.[^38]

The Residential Lead-Based Paint Hazard Reduction Act made a number of
sweeping changes to the nation's lead-based paint laws. However, the
statute added only two new requirements applicable to Air Force housing:
the disclosure rule,[^39] and the requirement to use certified personnel
for lead-based paint activities.[^40] The requirements concerning the
sale of federally owned housing[^41] are not new as the 1973 amendments
to the Lead-Based Paint Poisoning Prevention Act required "procedures to
eliminate the hazards of lead based paint poisoning in all federally
owed properties prior to the sale of such properties."[^42]

## A. Statutory Review

The first federal statute to address residential lead-based paint was
the Lead-Based Paint Poisoning Prevention Act of 1971.[^43] The Act has
been amended numerous times. The most recent amendments were included in
the Residential Lead-Based Paint Hazard Reduction Act of 1992.[^44] The
Residential Lead-Based Paint Hazard Reduction Act of 1992 is commonly
referred to as "Title X" because it is Title X of the Housing and
Community Development Act of 1992. Title X consists of five subtitles:

> Subtitle A: The primary purpose of Subtitle A (§ 1011 to § 1018) is
> the reduction of residential lead-based paint hazards by establishing
> a grant program for state and local governments, by mandating various
> new lead-based paint requirements, and by creating a lead-based paint
> task force. Only § 1012, *Evaluation and Reduction of Lead-Based Paint
> Hazards in Federally Assisted Housing*, and §1013*, Disposition of
> Federally Owned Housing*, amend the Lead-Based Paint Poisoning
> Prevention Act of 1971.
>
> Subtitle B: Subtitle B consists of one section (§ 1021) and amends the
> Toxic Substances Control Act (TSCA).[^45] Section 1021 primarily adds
> twelve sections to TSCA (§ 401 through § 412).[^46] These sections are
> known as TSCA, subchapter IV, or as the Lead-Based Paint Exposure
> Reduction Act.[^47]
>
> Subtitle C: Subtitle C (§ 1031 to § 1033) addresses worker safety and
> primarily amends the Occupational Safety and Health Act of 1970.[^48]
> The requirements of Subtitle C are beyond the intended scope of this
> article.
>
> Subtitle D: Subtitle D (§1051 to §1053, §1056) requires continuing HUD
> research on lead-based paint hazards and also requires two reports
> from the General Accounting Office.
>
> Subtitle E: Subtitle E (§1061) requires HUD to submit an annual report
> to Congress concerning its lead-based paint program.

For the purposes of this article, the Lead-Based Paint Hazard Reduction
Act of 1992 will be referred to as "Title X."

### B. History of Lead-Based Paint Legislation

*1. Lead-Based Paint Poisoning Prevention Act of 1971*

Even though the scientific community was aware of the hazards of
residential lead-based paint since the turn of the century,[^49]
Congress did not address the nation's residential lead-based paint
problem until 1971. The Lead-Based Paint Poisoning Prevention Act was a
very modest first step toward reducing the hazards posed by residential
lead-based paint. The most noteworthy portion of the statute prohibited
the use of lead-based paint in residential structures constructed or
rehabilitated by the federal government.[^50] The Consumer Product
Safety Commission's ban on the manufacture of lead-based paint for
residential use did not take effect until February 27, 1978.[^51] The
Lead-Based Paint Poisoning Prevention Act also contained grant
provisions for states to "detect and treat incidents of lead-based paint
poisoning"[^52] and "to develop and carry out programs to eliminate the
hazards of lead-based paint poisoning."[^53] In addition, the Secretary
of Housing and Urban Development (HUD) was required to investigate the
"nature and extent of the problem of lead-based paint in the United
States."[^54]

*2. Amendments of 1973, 1976 and 1978*

The 1973 Amendments[^55] to the Lead-Based Paint Poisoning Prevention
Act required, *inter alia*, the Secretary of HUD to "implement
procedures to eliminate the hazards of lead-based paint poisoning in all
federally owned properties prior to the sale of such properties when
their use is intended for residential habitation."[^56] In addition, the
1973 Amendments required the Secretary of HUD "to eliminate as far as
practicable the hazards of lead based paint poisoning with respect to
any existing housing which may present such hazards and which is covered
by an application for mortgage insurance or housing assistance payments
under a program administered by the Secretary."[^57] As such, Congress
intended to eliminate (as far as practicable) lead-based paint hazards
in housing covered by mortgage insurance and in housing receiving
assistance payments, but did not intend to eliminate lead-based paint
hazards in housing owned by federal agencies (unless it was to be sold).
Congress' practice of imposing different lead-based paint requirements
on federally owned housing and on federally assisted housing began in
1973 and continues to the present.[^58]

The 1976[^59] and 1978[^60] Amendments to the Lead-Based Paint Poisoning
Prevention Act mainly concerned grant programs and did not impact
federally owned housing.

3\. *The Amendments of 1988*

The Lead-Based Paint Poisoning Prevention Act was amended twice in 1988.
The first amendment[^61] is significant because it is a source of
possible confusion regarding the requirements applicable to federally
owned property. That amendment adds a new subsection (c) to 42 U.S.C. §
4822 entitled "Inspection Requirements" which states: "\[t\]he Secretary
shall require the inspection of all intact and nonintact interior and
exterior painted surfaces of *housing subject to this section* for
lead-based paint using an approved x-ray fluorescence analyzer or
comparable approved sampling or testing technique."[^62] The amendment
also required the results of the inspection be "provided to any
potential purchaser or tenant of the housing."[^63] The possible
confusion arises because § 4822(c) applies to "housing subject to this
section" and § 4822 establishes requirements for both federally assisted
housing (*e.g*., eliminate as far as practicable lead based paint
hazards in federally assisted housing) and federally owned housing
(*i.e*., abate lead-based paint hazards in federally owned housing prior
to sale).[^64] Arguably, since both federally assisted and federally
owned housing are subject to § 4822 requirements, both types of housing
are subject to the inspection and disclosure requirements of § 4822(c).
The House of Representatives Report[^65] and the Conference Report[^66]
on the amendment do not clarify the "subject to this section" portion of
the statute. However, the implementing regulation interprets § 4822(c)
as only referring to HUD associated housing.[^67] As a result, housing
owned by other federal agencies is not affected by § 4822(c)'s
inspection and reporting requirements.

Title X did not appreciably change § 4822(c). The only changes that were
made were substituting the word "certified" for "qualified" and
inserting the phrase "or 0.5 percent by weight."[^68] As a result, the
inspection and reporting requirements of 42 U.S.C. § 4822(c) are
essentially unchanged since 1988 and not applicable to Air Force owned
housing.

The second 1988 amendment[^69] to the Lead-Based Paint Poisoning
Prevention Act mainly clarifies the first 1988 amendment.[^70] However,
the clarifications concern a provision which explicitly refers only to
public housing and does not affect Air Force owned housing. However, the
second amendment also adds subsection (g) to 42 U.S.C. § 4822 which
states that "\[t\]his section may not be construed to affect the
responsibilities of the Environmental Protection Agency with respect to
the protection of the public health from hazards posed by lead-based
paint."[^71] The purpose of the provision was to clarify that
"\[s\]ection 302 of the Lead-Based Paint Poisoning Prevention Act may
not be construed to affect the responsibilities of the Environmental
Protection Agency with respect to \[lead-based paint hazards\]."[^72] 42
U.S.C. § 4822(g) is an important provision relating to the issue of
whether the EPA can regulate residential lead-based paint under CERCLA.
This issue is discussed in Part V of this article.

### C. Applicable Requirements of Title X

*1. Disclosure Rule*

Section 1018 of Title X requires HUD and EPA to jointly "promulgate
regulations under this section for the disclosure of lead-based paint
hazards in target housing which is offered for sale or lease."[^73] The
final regulations were promulgated on March 6, 1996,[^74] and require
sellers and lessors to:

> \(a\) Provide purchasers and lessees with an EPA-approved lead hazard
> information pamphlet;
>
> \(b\) Disclose to purchasers and lessees (and their agents) known
> lead-based paint and lead-based paint hazards. In addition, any
> available information concerning known lead-based paint or lead-based
> paint hazards (*e.g*., basis for determinations, location of
> lead-based paint, the condition of the painted surface) must be
> disclosed;
>
> \(c\) Provide purchasers and lessees all available records or reports
> pertaining to lead-based paint or lead-based paint hazards;
>
> \(d\) Provide purchasers with an opportunity to conduct a risk
> assessment or an inspection for the presence of lead-based paint; and,
>
> \(e\) Provide purchasers and lessees with a lead warning
> statement.[^75]

The disclosure rule applies anytime the Air Force sells or leases target
housing.[^76] A seller is defined as any entity, including government
agencies, that transfers legal title to target housing.[^77] The Air
Force is most likely to sell housing in the context of base realignment
and closure. A lessor is defined as any entity, including government
agencies, which leases, rents or subleases target housing.[^78]

Although assigning military family housing to an Air Force member is not
commonly thought of as a "lease," it has all the trappings of a lease.
When an Air Force member accepts housing, he or she is entering into a
binding agreement with the Air Force which is governed by an established
set of terms, including the forfeiture of the member's housing
allowance. The agreement to provide military family housing is currently
treated by the Air Force as a lease for the purposes of Title X.[^79]

One significant aspect of the disclosure rule is that it does not
require the evaluation, inspection, or abatement of lead-based
paint.[^80] The Air Force is only required to provide known information
concerning lead-based paint and lead-based paint hazards. Although this
may be a daunting and onerous task for large housing areas, it is purely
an administrative task and does not require any on-site investigation.

Another aspect of the disclosure rule is that it requires disclosure of
both lead-based paint and lead-based paint hazards. In other words, if
the Air Force were to abate by permanent containment or encapsulation
every lead-based paint hazard in Air Force housing, the housing would
still be subject to the disclosure rule because lead-based paint is
still present in the home. The only way to avoid the disclosure rule
when leasing target housing is to have the property declared lead-free
by a certified inspector.[^81] This exemption makes sense because
lead-based paint, even if not a current hazard, could become a hazard
through deterioration or through renovation activities and, therefore,
it would be prudent to warn tenants. However, the rationale offered by
HUD and EPA is inadequate. HUD and EPA "believe that the exemption will
provide a valuable incentive to building owners to conduct inspections
and remove lead-based paint where present."[^82] In essence, HUD and EPA
are hoping that the disclosure rule is so burdensome that it will force
lessors to remove lead-based paint regardless of whether it presents a
health hazard. [^83]

Unlike lessors, sellers may not escape the disclosure rule by being
declared lead-free by a certified inspector.[^84]

*2. Lead-based Paint Activities - Training and Certification*

Toxic Control Substance Act (TSCA) § 402, added by § 1021 of Title X,
requires EPA to "promulgate regulations governing lead-based paint
activities to ensure that individuals engaged in such activities are
properly trained; that training programs are accredited; and that
contractors engaged in such activities are certified."[^85] The
regulations implementing TSCA § 402 will be codified at 40 C.F.R.
Subpart L[^86] and require, *inter alia*, all lead-based paint
activities (*i.e*., inspection, risk assessment and abatement) in target
housing and child-occupied facilities be conducted by certified
individuals or firms, with a limited exception for individuals
performing work on their own dwellings.[^87]

The lead-based paint waiver of sovereign immunity codified in TSCA §
408[^88] and discussed in Part V, subjects federal agencies to federal
requirements regarding lead-based paint activities. As such, Air Force
personnel and contractors must be trained and certified under the
provisions of 40 C.F.R. Subpart L if they engage in "lead-based paint
activities." However, the phrase "lead-based paint activities" is
somewhat limited in scope and only includes lead-based paint
inspections,[^89] risk assessments[^90] and abatement activities.[^91]
40 C.F.R. Subpart L is "not intended to regulate all activities that
involve or disturb lead-based paint . . . \[and\] would not regulate a
renovation contractor that incidentally disturbs lead-based paint or an
individual who samples paint on a kitchen cabinet to determine if the
paint contains lead."[^92] The regulation primarily limits the
applicability of the training and certification requirements by
restricting the definition of abatement. The definition of abatement
specifically excludes "renovation, remodeling, landscaping or other
activities, when such activities are not designed to permanently
eliminate lead-based paint hazards, but, instead, are designed to
repair, restore, or remodel a given structure or dwelling, even though
these activities may incidentally result in a reduction or elimination
of lead-based paint hazards."[^93] In addition, "interim controls,
operations and maintenance activities, or other measures and activities
designed to temporarily, but not permanently, reduce lead-based paint
hazards"[^94] are not included in the definition of abatement. As such,
the lead-based paint training and certification requirements do not
affect normal day-to-day repair and maintenance activities in Air Force
housing. The Air Force should not require contractors or personnel to be
certified before performing actions involving lead-based paint unless
those actions are included within the narrow definitions of inspection,
risk assessment or abatement.[^95]

Although the EPA is responsible for the lead-based paint training and
certification program, TSCA § 404 allows states to administer and
enforce the requirements of the program.[^96] The regulations
authorizing state-run training and certification programs will be
codified at 40 C.F.R. Subpart Q.[^97] Because state programs may be more
stringent than the federal program,[^98] Air Force installations must be
cognizant of local requirements prior to proceeding with any work that
may disturb lead-based paint.

As with the disclosure rule, nothing in the lead-based paint training
and certification program "requires that the owner or occupant undertake
any particular lead-based paint activity."[^99]

*3. Disposition of Federally Owned Housing*

Section 1013 (which applies only to federally owned housing that is
being sold) is the only provision in Title X that requires the Air Force
to inspect or abate the lead-based paint hazards in housing.[^100]
However, even these requirements are not absolute because "\[i\]n the
absence of appropriations sufficient to cover the costs \[of § 1013\],
these requirements shall not apply to the affected agency or
agencies."[^101]

Section 1013 requires the inspection and abatement of lead-based paint
hazards in federally owned target housing if the housing was constructed
prior to 1960 and the housing is being disposed of by the federal
agency.[^102] The proposed regulation implementing § 1013 explains that
the term "disposal" means "sale."[^103] Federally owned housing
constructed from 1960 to 1978 need only be inspected for lead-based
paint and lead-based paint hazards. The results of the inspection must
be made available to prospective purchasers.[^104] Thus, under federal
law, the Air Force is only required to abate lead-based paint hazards if
it is selling housing constructed prior to 1960. The Air Force is only
required to inspect for lead-based paint if it is selling housing
constructed prior to 1978.

These requirements are not altogether new. The 1973 Amendments to the
Lead-Based Paint Poisoning Prevention Act required the Secretary of HUD
to "establish and implement procedures to eliminate the hazards of lead
based paint poisoning in all federally owned property prior to the sale
of such properties when their use is intended for residential
habitation."[^105] Section 1013 was intended "to clarify the
responsibility of federal agencies with regard to lead-based paint
hazards in housing sold or transferred to private owners."[^106] In
fact, Title X decreases the requirements imposed on federal agencies
when selling housing. Under Title X, federal agencies are only required
to abate lead-base paint hazards in housing constructed prior to 1960.
Under the 1973 Amendments, federal agencies were required to abate such
hazards in all residential housing constructed prior to 1978.[^107]
Another difference between Title X and the 1973 Amendments is that Title
X applies to "target housing" and the 1973 Amendments applied to
"properties intended for residential habitation". The scope of the 1973
Amendments was broader than Title X because the 1973 Amendments not only
applied to housing, but also applied to non-dwelling facilities commonly
used by children under seven years of age, such as a child care
centers.[^108] Although the main purpose of § 1013 was to clarify
federal responsibilities with regard to lead-based paint hazards in
housing, it also reduced those responsibilities.

In implementing the abatement provisions of § 1013, the Air Force
commonly tries to transfer the abatement requirement to the purchaser as
a condition of sale.[^109] Title X is silent as to which party should
conduct abatement activities. The statute merely states that the
implementing regulations "shall require the inspection and abatement of
lead-based paint hazards in all federally owned target housing
constructed prior to 1960."[^110] The legislative history is also silent
as to which party should conduct abatement activities.[^111] However,
the proposed implementing regulation requires the federal agency to
"conduct abatement of all identified lead-based paint hazards."[^112]
However, this proposed regulation lists one exception: "In the case of a
sale to a \[non-occupant purchaser\],[^113] abatement may be made a
condition of sale with sufficient funds escrowed."[^114] Provided the
proposed rule is not drastically changed when it is promulgated as a
final rule, the Air Force should be able to transfer the § 1013
abatement requirement to the purchaser so long as the escrow requirement
is fulfilled and the Air Force is not selling directly to the ultimate
occupant of the home.

*4. Lead-based Paint Guidance from the House Appropriations Committee*

In 1991, the House of Representatives' Committee on Appropriations
became concerned that lead-based paint in military housing posed a
health threat to children.[^115] The Appropriations Committee directed
the Department of Defense (DOD) to screen children of military personnel
for elevated blood lead levels and to form a task force on lead-based
paint hazards in military housing.[^116] The task force was to "develop
a comprehensive plan for identifying lead-based hazards in military
housing, designate a representative to participate in the Federal
interagency task force, and coordinate DOD funding of \$1,000,000 to
help support the government-wide interagency effort to develop safe,
effective, and economical cleanup methods."[^117] The Appropriations
Committee did not direct DOD to inspect or abate lead-based paint in
military housing, but rather directed DOD to study the potential hazard
via a task force. It is interesting to note that two years later, the
Committee on Appropriations criticized DOD for not coordinating with EPA
and HUD and for hiring consultants to "reinvent the same wheel."[^118]
The Appropriations Committee subsequently directed "DOD to follow EPA
regulations and HUD guidelines related to lead-based paint in
housing."[^119]

Although the Appropriations Committee's recommendations do not have the
effect of law, the recommendations are given great deference by DOD. The
*Air Force Policy and Guidance on Lead-Based Paint in Facilities* lists
the Report from the Committee on Appropriations as its first reference
(ahead of binding laws and regulations) and acknowledges that "Congress
directed the . . . DOD to take a more active role in ensuring military
dependent children are not affected by \[lead-based paint\] health
hazards."[^120] Even though the Appropriations Committee's directions do
not establish any legally binding requirements, they merit mentioning
because they appear to have had a significant influence on the Air
Force's lead-based paint policy.

#### D. HUD Guidelines for Lead-Based Paint Activities

Section 1017 of Title X requires HUD, after consultation with EPA, the
Department of Labor, and the Centers for Disease Control, to issue
guidelines for the conduct of federally supported work involving
lead-based paint hazards.[^121] Federally supported work includes "any
lead hazard evaluation or reduction activities conducted in federally
owned or assisted housing."[^122] As such, the HUD guidelines,[^123]
which were issued in June, 1995, are applicable to lead-based paint
activities conducted in Air Force housing. However, the guidelines do
not impose any mandatory requirements on federal agencies. The
guidelines "are not enforceable by law unless a Federal, State, or local
statute or regulation requires adherence to \[them\]."[^124] Title X and
the proposed implementing regulations do not require federal agencies to
comply with the HUD guidelines when conducting lead-based paint
activities in federally owned housing.[^125] As such, the HUD guidelines
merely provide more complete guidance "on *how* activities related to
lead-based paint should be carried out and *why* certain measures are
recommended."[^126]

Although the HUD guidelines are not mandatory, they should not be
ignored. The forthcoming Air Force Instruction and Air Force Manual
should use the guidelines as a baseline because they "are based on the
most current scientific research"[^127] and provide detailed, technical
information for identifying and controlling lead-based paint hazards.
However, the Air Force Instruction and Manual should allow installations
the flexibility to deviate from the guidelines if such deviations are
consistent with sound engineering principles and practice.

### E. The Air Force Lead-Based Paint Program

Although federal requirements for the Air Force's lead-based paint
program are limited to the disclosure rule, the use of trained and
certified personnel for lead-based paint activities, and various
requirements associated with the sale of Air Force housing, the Air
Force lead-based paint program is much more comprehensive. Air Force
policy requires that each installation develop a lead-based paint
management plan that identifies, evaluates, controls and eliminates
lead-based paint hazards.[^128] Lead-based paint hazards are typically
identified through lead-based paint inspections, routine facility
inspections, fire and safety inspections, and occupant reports.[^129]
The condition of the paint and the age of housing occupants are used to
evaluated the health risk posed by the lead-based paint.[^130] Based on
the degree of risk presented, an appropriate response is taken, such as
"closing off the area, occupant relocation, in-place management,
abatement and/or cleanup."[^131] In-place management is emphasized to
control lead-based paint hazards.[^132] Installations are to
"\[c\]onsider abatement of lead-based paint as part of the normal
facility renovation and upgrade program when it is cost
effective."[^133] The Air Force approach to lead-based paint hazards
also includes testing of children for elevated blood lead levels,[^134]
guidance on the disclosure rule[^135] and guidance on closing
facilities.[^136]

While the Air Force policy of identifying, evaluating, controlling and
eliminating lead-based paint hazards has proven to be effective, this
policy could be improved in the forthcoming Air Force Instruction and
Air Force Manual by clearly distinguishing between applicable
requirements and information provided for guidance. The Air Force
lead-based paint policy lists 13 references but fails to indicate which
portions of those references are legally applicable to Air Force
housing.[^137] For example, the policy lists Title X as a reference but
fails to indicate that a vast majority of Title X's provisions are not
applicable to the Air Force. This lack of clarity leads to confusion and
is a disservice to those trying to comply with federal and Air Force
requirements. A better approach would be to specifically list applicable
provisions and clearly indicate whether those provisions are
requirements or merely guidance. For example, the Air Force should
specifically state whether it wants installations to abide by HUD's
*Guidelines for the Evaluation and Control of Lead-Based Paint Hazards
in Housing*. If the Air Force wants all installations to follow the HUD
guidelines, the Air Force Instruction or Air Force Manual should so
state. If the Air Force wants base-level engineers to have flexibility
in addressing lead-based paint hazards, the Air Force Instruction or the
Air Force Manual should make that clear as well. Not clarifying issues
(such as the applicability of HUD guidelines) sows seeds for future
confusion.

When developing the new Air Force Instruction and Air Force Manual, the
Air Force should take advantage of the flexibility that it has been
afforded under federal law. Congress has chosen not to impose many
restrictions on Air Force housing regarding the management of lead-based
paint hazards. This flexibility should be passed on to Air Force
installations. The forthcoming Air Force Instruction and Air Force
Manual should clearly state the policy of identifying, evaluating,
controlling and eliminating lead-based paint in Air Force housing. These
publications should allow installations the flexibility to develop
prudent, cost-effective methods of implementing that policy.

### IV. RCRA AND THE REGULATION OF LEAD-BASED PAINT

### A. Waste from Lead-Based Paint Abatement

Title X requires the Air Force to abate lead-based paint hazards in
housing constructed prior to 1960 that is being sold.[^138] In addition,
the Air Force may abate lead-based paint hazards in base housing due to
public health concerns, a waiver of sovereign immunity, or the threat of
tort liability.[^139] Depending on the process selected, the abatement
of lead-base paint hazards may generate a variety of wastes, including
lead-based paint residues (paint chips and dust), paint-covered debris
(woodwork, plaster, bulky components, etc.), and soil contaminated by
lead-based paint (sludge from stripping paint, wash water, rags, High
Efficiency Particle Air (HEPA) vacuum filters, respirator filters, and
plastic sheeting to cover floors).[^140] Each of these types of wastes
must be properly handled in accordance with the provisions of the
Resource Conservation and Recovery Act (RCRA).[^141]

Congress enacted RCRA to provide a comprehensive program to manage the
nation's solid and hazardous wastes. Solid wastes are subject to the
requirements of RCRA Subtitle D.[^142] Hazardous wastes are managed from
"cradle to grave" pursuant to RCRA Subtitle C.[^143] Under RCRA Subtitle
C, those who generate, transport, treat, store or dispose of hazardous
waste, are stringently regulated. If lead-based paint abatement wastes
are merely solid waste, regulatory oversight is limited. However, if
these wastes are considered hazardous, the panoply of RCRA Subtitle C
regulations will drastically increase the complexity and the cost of
lead-based paint abatement.

Although the focus of RCRA is primarily prospective, various provisions
regulate the remediation of past releases of hazardous wastes and
hazardous constituents. These provisions encompass the RCRA corrective
action program.[^144] Although the RCRA corrective action program
principally uses permit conditions for the remediation of past releases,
EPA does have the authority to respond to past releases from solid
wastes that pose an imminent and substantial threat to human health or
the environment. Because of RCRA's corrective action provisions, Air
Force installations may be required to remediate past releases of
lead-based paint wastes if such releases have not been properly
controlled.

1.  *Solid Waste*

> To be regulated under RCRA, lead-based paint wastes must fall within
> the statutory definition of "solid waste."[^145] Under RCRA, solid
> waste is defined as "any garbage, refuse . . . and other discarded
> material, including solid, liquid, semisolid, or contained gaseous
> material resulting from industrial, commercial, mining, and
> agricultural operations, and from community activities."[^146] RCRA's
> definition of solid waste is extremely broad[^147] and would encompass
> the wastes generated by lead-based paint abatement. Although there are
> a few exclusions from the definition of solid waste (*e.g*., domestic
> sewage, irrigation return flows, and special nuclear or by-product
> material),[^148] none of the exclusions are likely applicable to
> lead-based paint wastes. As a result, the Air Force must ensure that
> the land disposal of lead-based paint wastes at a minimum complies
> with the provisions of RCRA Subtitle D.[^149] The Subtitle D
> implementing regulations, known as "Subtitle D Criteria," regulate
> solid waste disposal facilities[^150] and municipal solid waste
> landfills.[^151] The Subtitle D Criteria are designed to reduce,
> *inter alia*, dangers at landfills associated with flooding,[^152]
> disease,[^153] surface and groundwater contamination,[^154] and air
> pollution.[^155]

*2. Hazardous Waste*

Although RCRA addresses both solid and hazardous waste, its primary
focus is the management of hazardous waste. Hazardous wastes are solid
wastes[^156] that: "(A) cause, or significantly contribute to an
increase in mortality or an increase in serious irreversible, or
incapacitating reversible, illness; or (B) pose a substantial present or
potential hazard to human health or the environment when improperly
treated, stored, transported, or disposed of, or otherwise
managed."[^157] Hazardous wastes are either specifically listed[^158] by
the EPA or are solid wastes which exhibit a specified regulatory
hazardous characteristic.[^159]

Under RCRA, a "generator" is defined as "any person, by site, whose act
or process produces hazardous waste identified or listed in \[40 C.F.R.
§ 261\] or whose act first causes a hazardous waste to become subject to
regulation."[^160] One of the initial obligations of a generator is
determining whether his waste is considered hazardous waste.[^161] A
generator may make the hazardous waste determination by using either an
EPA approved testing method[^162] or by "applying knowledge of the
hazard characteristic of the waste in light of the materials or the
processes used."[^163] At Air Force housing, lead-based paint abatement
would most likely be conducted by in-house personnel or contractors. In
either case, if the waste is hazardous, the Air Force would be
considered a generator because it caused, either directly or indirectly,
the hazardous waste to be generated. If a contractor is involved in the
abatement work, the Air Force and the abatement contractor would be
considered co-generators as both parties contribute to the generation of
the waste.[^164]

*a. Classifying Waste from Lead-Based Paint Abatement*

Depending on how lead-based paint is abated, either listed or
characteristic hazardous waste may be generated. If a solvent is used to
remove lead-based paint, the spent solvent may be a F listed
(non-specific source) hazardous waste or the unused, discarded solvent
may be a P listed (off-specification or discarded commercial products)
hazardous waste. In addition, under RCRA's mixture rule, if any solid
waste is mixed with one or more listed hazardous wastes, the resulting
mixture will be considered a hazardous waste as well.[^165] As a result,
any rags or other material contaminated with a listed hazardous waste
during the lead-based paint abatement process may be considered
hazardous. As such, the mixture rule has the potential to drastically
expand the amount of waste subject to RCRA Subtitle C regulation.

A solid waste may also be considered hazardous waste if it exhibits a
hazardous characteristic.[^166] For wastes associated with lead-based
paint abatement, the hazardous characteristic of concern is toxicity for
lead. A solid waste is considered toxic for lead if the lead content of
the leachate from a representative sample of the waste exceeds 5 mg/L
using the Toxicity Characteristic Leaching Procedure (TCLP) test.[^167]
According to HUDs *Interim Guidelines for Hazard Identification and
Abatement in Public and Indian Housing*, test data from a HUD lead-based
paint demonstration project indicated that it is unlikely that large
debris, such as doors, will be classified as hazardous.[^168] The
interim guidelines however also state that "paint chips, HEPA vacuum
filters, and certain wash waters are likely to fail the toxicity
test."[^169] EPA conducted similar tests on waste from lead-based paint
abatement and concluded:

> \(i\) Filtered wash-water, disposable work clothes and respirator
> filters, and rugs and carpets are non-hazardous and may be disposed of
> as solid waste.
>
> \(ii\) Paint chips, HEPA vacuum debris, dust from air filters, paint
> dust sludge from stripping, unfiltered liquid waste, rags, sponges,
> mops, HEPA filters, air monitoring cartridges, scrapers and other
> materials used for testing, abatement and cleanup may be hazardous or
> not, depending on the abatement conditions . . . .
>
> \(iii\) "Solid" wastes such as old woodwork, plaster, doors and
> similar bulky components were found generally to be hazardous when the
> lead level in the paint exceeded 4 mg/cm2, as determined by a
> laboratory analysis. The same types of waste may be disposed of as
> solid waste provided they are covered with paint containing lower lead
> levels.
>
> \(iv\) Plastic sheeting and tape used to cover floors during abatement
> may be hazardous, depending on the methods used.[^170]

Both the HUD and EPA studies demonstrate that wastes generated by
lead-based paint abatement may be hazardous under RCRA. Prior to
beginning any lead-based paint abatement project, the Air Force should
consider the possibility that some of the waste generated may be
hazardous.

It should be noted that "EPA intends to issue a separate rulemaking
specifically addressing the disposal of architectural debris waste from
lead-based paint abatements."[^171] The purpose of the rulemaking would
be to "minimize potential regulatory impediments to conducting and
financing lead-based paint abatements."[^172] Such a rulemaking is long
overdue. Lead-based paint is the most common environmental disease in
young children[^173] and EPA has acknowledged "that the costs associated
with managing debris is impeding progress in reducing lead-based paint
hazards."[^174] Yet, EPA has failed to even issue a draft regulation.
Such inattention is inexcusable. In addition, the scope of the proposed
rulemaking will purportedly address only architectural debris rather
than all wastes generated by the most common types of lead-based paint
abatement. A regulation which excludes certain lead-based paint
abatement wastes from Subtitle C regulation would eliminate a
significant barrier to the abatement of lead-based paint. However, until
such a regulation is promulgated, the current RCRA regulations will
continue to apply.

b\. Household Hazardous Waste Exclusion for Lead-Based Paint Abatement

When Congress enacted RCRA in 1976, EPA was required to "promulgate
criteria for identifying the characteristics of hazardous waste, and for
listing hazardous waste, which should be subject to \[RCRA Subtitle C
requirements\]."[^175] Even though the statute does not provide for the
exclusion of household wastes, the implementing regulation specifically
excluded household wastes from the definition of hazardous waste.[^176]
EPA excluded household wastes from RCRA to implement Congressional
intent as expressed in the legislative history.[^177] In 1984, EPA
clarified the household hazardous waste exclusion by stating that the
applicability of the household hazardous waste exclusion depends on the
following two criteria being met: (1) the waste must be generated by
homeowners on the premises of a household; and, (2) the waste must be
composed primarily of materials found in the wastes generated by
consumers in their homes.[^178] EPA further clarified the household
hazardous waste exclusion by stating that wastes from building
construction, renovation or demolition, even if generated at a
household, are not covered under the household waste exclusion.[^179]
EPA later backed away from the first requirement which stated that
household wastes must be generated by a homeowner. In Office of Solid
Waste and Emergency Response (OSWER) Directive No. 9441.1990(09),
*Applicability of the Household Hazardous Waste Exclusion to Waste
Generated by Contractors,* EPA stated that the applicability of the
household hazardous waste exclusion is based on the type of waste
generated and the place of generation, and that "EPA does not
distinguish between waste generated at a household by a homeowner and
waste generated at a household by a person other than the homeowner
\[*e.g*., a contractor\]."[^180]

OSWER Directive No. 9443.1994(03) addressed the applicability of the
household hazardous waste exclusion to wastes generated by lead-based
paint abatement. The Directive states:

> Under EPA's current reading of the household waste exemption, LBP
> waste is not similar to the waste typically generated by household
> (e.g., household trash comprising of discarded consumer goods), and
> should therefore, be evaluated for its potential to be RCRA hazardous
> waste. However, solid waste generated by a homeowner, resident, or a
> contractor at a home as part of routine residential maintenance (as
> opposed to building construction, renovation, and demolition) would be
> part of the household waste stream, and thus would be covered under
> the RCRA household waste exemption.[^181]

Apparently, if the purpose of an activity is the abatement of lead-based
paint, the activity is considered renovation and the resulting wastes
are not included in the household hazardous waste exclusion. However, if
during routine maintenance (*e.g*., the chipping and sanding of old
paint prior to the repainting), any lead-based paint is abated, the
resulting wastes are not considered hazardous under RCRA. In practice,
differentiating between routine maintenance and renovation may require
the making of some fine distinctions. As such, it would be prudent to
coordinate with EPA (or the appropriate state agency) prior to beginning
any routine maintenance that may involve the abatement of lead-based
paint.

Although current direction from EPA's Office of Solid Waste and
Emergency Response does not include wastes from lead-based paint
abatement in the household hazardous waste exclusion, such was not
always the case. OSWER Directive No. 9443.1987(28), *Lead-Based Paint
Residues and Lead Contaminated Residential Soil For Public/Private
Housing Units*, published in 1987, stated

> \[p\]aint wastes are exempt from regulation as a hazardous waste if
> they are generated at individual households by the houseowner doing
> his own removal.[^182] On the other hand, if the removal at an
> individual residence is done by a contractor, the residues are solid
> wastes and must be evaluated with respect to their hazardousness (EP
> Toxicity) and must be disposed of according to hazardous waste
> regulations if found to be hazardous."[^183]

Thus, until 1994, lead-base paint abatement wastes were included in the
household waste exclusion and RCRA was not a barrier to lead-based paint
abatement. However, in 1994, OSWER Directive No. 9443.1994(03)
eliminated the household hazardous waste exclusion for lead-based paint
abatement wastes. What is disturbing about this policy change is the
lack of explanation. One would think that a significant policy change
such as this (*i.e*., a change which makes it more difficult and
expensive to address the number one environmental health hazard facing
young children) would be accompanied by a thoughtful, well-reasoned
analysis. Instead, the OSWER Directive No. 9443.1994(03) restates the
same precedents that justified the 1987 Directive, then summarily
concludes that "\[u\]nder EPA's current reading of the household waste
exemption, LBP is not similar to the waste typically generated by \[a\]
household."[^184] Absent a compelling, scientifically-based reason or a
clear policy rationale, it is irresponsible for EPA to erect a
formidable barrier to the abatement of residential lead-based paint by
making it subject to RCRA Subtitle C regulation without any
explanation.[^185]

##### c. Soil Contaminated with Lead-Based Paint

Soil contaminated with lead-based paint may or may not be covered under
EPA's current interpretation of RCRA's household hazardous waste
exclusion. If routine residential maintenance, or the weathering or
chalking of lead-based paint is the source of lead contamination in
soil, "then the lead-contaminated soil in residential yards would be
part of the household waste stream as defined in the household waste
exclusion."[^186] As such, the soil is not regulated under RCRA Subtitle
C and could be disposed of off-site in accordance with RCRA Subtitle D
or managed in place.[^187]

If the lead contaminated soil resulted from lead-based paint abatement
activities, the soil must be evaluated for toxicity. If the soil is
found to be toxic for lead, "RCRA subtitle C regulation would apply to
the generation, transportation, treatment, storage, or disposal of \[the
soil\] (absent another exemption)."[^188] However, even though the soil
is regulated under RCRA Subtitle C, the Air Force may engage in certain
on-site, risk reducing activities without such activities being
considered generation, treatment, storage or disposal of hazardous
waste.[^189] For example, according to OSWER Directive No.
9441.1995(08), *Applicability of the Household Waste Exclusion to
Lead-Contaminated Soil*, "covering soils with sod, mulch, or gravel
would not constitute the generation, transportation, treatment, storage,
or disposal of hazardous waste."[^190] As a result, the Air Force may
use these risk reducing measures as a low cost means of mitigating the
health hazards associated with lead-contaminated soil without being
subject to RCRA Subtitle C regulation.[^191]

*3. Liability under CERCLA*

In determining the appropriate method for disposing of wastes from
lead-based paint abatement, the Air Force should evaluate potential
CERCLA liability as well as RCRA requirements. Even if lead-based paint
wastes are disposed of in accordance with the requirements of RCRA, the
Air Force may still be liable under CERCLA should the disposal site
subsequently pose a threat to human health or the environment.[^192]
Because liability under CERCLA may be joint and several,[^193] the
potential liability is staggering for the disposal of any hazardous
substance, including lead contaminated wastes. Thus, even though the Air
Force could dispose of some lead-based paint abatement wastes as solid
waste, a careful evaluation of the potential CERCLA liability is
warranted to determine if such disposal is in the Air Force's long-term
best interest. The CERCLA ramifications for lead-based paint will be
discussed more fully in Part V.

**B. RCRA Corrective Action**[^194]

OSWER Directive No. 9502.1995(02), *Corrective Action Authorities*,
lists five statutory provisions which authorize EPA to take corrective
action:[^195] RCRA § 3004(u)[^196] (corrective action at permitted
treatment, storage, and disposal (TSD) facilities); RCRA § 3004(v)[^197]
(corrective action beyond the boundary of the facility); RCRA §
3008(h)[^198] (corrective action at interim status facilities); RCRA §
3005(c)(3)[^199] (corrective action using RCRA's omnibus permitting
authority); and RCRA § 7003 (corrective action for imminent and
substantial endangerment). The RCRA corrective action program addresses
releases from interim status facilities, permitted facilities, as well
as releases which pose an imminent and substantial threat to health and
the environment.

*1. Interim Status Facilites*[^200]

To protect human health or the environment, EPA may require corrective
action at interim status facilities under RCRA § 3008(h) if "there is or
has been a release of hazardous waste into the environment."[^201] The
term release has been broadly interpreted to include "any spilling,
leaking, pumping, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing into the environment."[^202] If
lead-based paint abatement activities at an interim status facility
result in the release of hazardous waste into the environment, EPA may
require a corrective action depending on the severity of the
release.[^203] However, if lead-based paint was released into the
environment due to weathering, chalking or routine household
maintenance, EPA may not require corrective action under RCRA § 3008(h)
because there has not been a release of a hazardous waste (*i.e*., in
these circumstances, the lead-based paint would not be a hazardous waste
due to the household hazardous waste exclusion).

*2. Permitted Facilities*[^204]

###### a. Corrective Action Within a Facility

Unlike interim status facilities, corrective action at permitted
facilities is required when hazardous waste or hazardous constituents
are released from solid waste management units. Under RCRA § 3004(u),
EPA "shall require corrective action for all releases of hazardous waste
or constituents from any solid waste management unit at a treatment,
storage, or disposal facility seeking a permit under \[RCRA\] regardless
of the time at which waste was placed in such a unit."[^205] As such,
corrective action at permitted facilities is much broader than at
interim status facilities because it includes hazardous constituents.
Because lead is a hazardous constituent,[^206] waste from lead-based
paint abatement could be included in RCRA corrective action at permitted
facilities.[^207]

Under RCRA § 3004(u), only releases from solid waste management units
(SWMUs) are subject to corrective action. However, the term "solid waste
management unit" is not defined in the statute or in the implementing
regulations.[^208] However, in the preamble for the 1985 final Hazardous
Waste Management System rule, EPA referred to legislative history and
developed the following working definition of a SWMU: "any unit at the
facility 'from which hazardous constituents might migrate, irrespective
of whether the units were intended for the management of solid and/or
hazardous wastes.'"[^209] Courts which have addressed the definition of
SWMU have also referred to the legislative history and adopted a similar
definition.[^210] As such, the definition of SWMU is quite broad and
would seem to include any location where there has been a spill of a
hazardous waste or hazardous constituent. However, EPA has narrowed the
definition in subsequent guidance by stating a SWMU does not include a
one-time spill of hazardous waste.[^211]

Given the broad definition of SWMU and the fact that lead is a hazardous
constituent, it is possible that EPA could consider residential soil
that has repeatedly been contaminated by the chipping, peeling or
chalking of lead-based paint a SWMU. As such, Air Force installations
may be required to remediate the lead-base paint hazards as a condition
of their TSD permits. OSWER Directive No. 9355.4-12, *Revised Interim
Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action
Facilities*, contemplates just such an eventuality. Directive 9355.4-12
recommends a screening level of 400 ppm for lead in residential
soils.[^212] If the lead contamination exceeds the screening level and
poses a health risk, the Directive recommends that it be addressed under
the RCRA corrective action program.[^213]

###### b. Corrective Action Outside a Facility

Under RCRA § 3004(v), EPA may require the owner or operator of a
permitted facility to take corrective action beyond the boundary of the
facility "where necessary to protect human health and the
environment."[^214] However, an owner or operator will not be required
to perform corrective action outside of the facility if he can
demonstrate that he was unable to obtain the necessary permission to
undertake such action. Although RCRA corrective action may extend beyond
the boundary of a facility, this situation is not likely to occur in
connection with residential lead-based paint abatement. Unless a home is
close to a property line and the paint is being removed via a sand
blasting technique, it is unlikely that the waste will migrate across an
installation's boundary.

*3. Imminent and Substantial Harm*

RCRA § 7003 gives EPA considerable authority to address "past or present
handling, storage, treatment, transportation or disposal of any solid or
hazardous waste \[which\] may present an imminent and substantial
endangerment to health or the environment."[^215] EPA "may bring suit on
behalf of the United States in the appropriate district court[^216] . .
. \[or\] after notice to the affected State, take other action under
this section . . . as may be necessary to protect public health and the
environment."[^217] Because EPA may bring suit under RCRA § 7003, this
provision is often considered an enforcement action rather that
corrective action. However, EPA also lists RCRA § 7003 as a corrective
action authority because its broad powers can be used to remedy past
releases of solid and hazardous waste.[^218]

Because RCRA § 7003 authority encompasses both solid and hazardous
wastes, waste from lead-based paint located on an Air Force installation
could be the subject of a RCRA § 7003 order.[^219] However, EPA would
have to demonstrate that the lead-based paint waste constitutes an
imminent and substantial endangerment to health or the
environment.[^220]

### C. RCRA Conclusion

Under EPA's current interpretation of RCRA's household hazardous waste
exclusion, the abatement of lead-based paint hazards cannot be
accomplished without regard for RCRA Subtitle C. As such, the Air Force
must take RCRA Subtitle C into account when selecting an appropriate
lead-based paint abatement method. If the Air Force selects an abatement
method which may generate hazardous waste, great care should be taken to
separate the hazardous waste from the non-hazardous waste to minimize
the volume, and consequently the cost of the abatement. Failure to
account for the possible generation of hazardous waste when abating
lead-based paint could result in cost overruns and possible RCRA
violations.

V. CERCLA AND THE REGULATION OF LEAD-BASED PAINT IN AIR FORCE HOUSING

Like many hazardous substances, lead-based paint is regulated by a
number of environmental statutes, including the Lead-Based Paint
Poisoning Prevention Act, Title X, and RCRA. In addition, the Air Force
may have an obligation to address residential lead-based paint hazards
under the CERCLA. For example, at the Presidio of San Francisco, a
closing Army installation where there are allegedly "high levels of lead
contamination in soil in areas surrounding residential and
non-residential structures," the EPA is asserting that soil contaminated
with residential lead-based paint should be remediated under
CERCLA.[^221] However, the Department of the Army disagrees.[^222] This
article will explore the application of CERCLA to Air Force residential
lead-based paint hazards.[^223]

A.  **CERCLA at Department of Defense Facilities**

CERCLA was made expressly applicable to federal facilities[^224] by
CERCLA § 120.[^225] Under CERCLA § 120(a)(1), each federal department,
agency and instrumentality is required to comply both procedurally and
substantively with the provisions of CERCLA to the same extent as any
nongovernmental entity.[^226] Section 120(a)(1) explicitly states that
federal facilities should be subject to CERCLA "in the same manner and
to the same extent" as private facilities.[^227] As then Representative
Fazio, one of the primary authors of CERCLA § 120, stated on the eve of
Superfund Amendments and Reauthorization Act (SARA) passing the House of
Representatives, "a State cannot create special rules for federal
facilities that are not otherwise applicable to similar situations at
private sites and then expect these rules to be enforced under
Superfund."[^228] Thus, while Congress intended federal facilities to
comply with CERCLA, Congress did not intend for federal facilities to be
subject to a double standard.

However, there are provisions in CERCLA which are only applicable to
federal facilities. For example, DOD facilities have an affirmative duty
to look for potential CERCLA sites,[^229] are required to sign an
interagency agreement with EPA for National Priority List (NPL)
sites,[^230] and are not required to comply with "any requirements
relating to bonding, insurance, or financial responsibility."[^231] In
addition, DOD, not EPA, has been designated by the President as the lead
agency for DOD sites.[^232] Pursuant to Executive Order 12580, the
President has delegated CERCLA § 104 response authority to the Secretary
of Defense "with respect to releases or threatened releases, where
either the release is on or the sole source of the release is from any
facility or vessel under the jurisdiction, custody or control of \[the
department\]."[^233]

As the lead agency, DOD is responsible for planning and implementing
response actions in accordance with the National Contingency Plan
(NCP).[^234] Response actions may include, *inter alia*, preliminary
assessments,[^235] site inspections,[^236] remedial
investigations,[^237] feasibility studies,[^238] and remedial
designs/remedial actions.[^239] At DOD NPL sites, DOD and EPA jointly
select the remedy.[^240] If DOD and EPA are unable to agree, EPA selects
the final remedy.[^241] At non-NPL sites, DOD selects the appropriate
response actions.[^242]

Even though DOD is the lead agency with respect to DOD sites, EPA
guidelines, rules, regulations and criteria are still applicable.[^243]
In addition, DOD "may not adopt or utilize any . . . guidelines, rules,
regulations, or criteria which are inconsistent with the guidelines,
rules, regulations, and criteria established by the Administrator under
\[CERCLA\]."[^244] Thus, while DOD is the lead agency at DOD CERCLA
sites, its actions are constrained by EPA guidance.[^245]

**B. Response Authority under Cercla § 104**

CERCLA § 104 establishes the scope of the President's response authority
under CERCLA. CERCLA § 104(a)(1) states: "Whenever (A) any hazardous
substance is released or there is a substantial threat of such a release
into the environment . . . the President is authorized to act . . . to
remove . . . and provide for remedial action relating to such hazardous
substance."[^246] As such, the President (or his delegate) may not
respond to an environmental concern (including lead-based paint hazards)
under CERCLA unless the following three conditions are met: (1) a
hazardous substance; (2) has been released or there is a threat of such
a release; (3) into the environment. Absent one of these elements, the
President is not authorized to respond under CERCLA.

*1. Hazardous Substance*

Under CERCLA, hazardous substances are primarily designated by referring
to other environmental statutes (*i.e*., the Clean Water Act, the Solid
Waste Disposal Act, the Clean Air Act, the Toxic Substances Control
Act).[^247] However, EPA may also designate hazardous substances
pursuant to CERCLA § 102.[^248] CERCLA § 102 authorizes EPA to
"promulgate and revise as may be appropriate, regulations designating as
hazardous substances . . . such elements, compounds, mixtures,
solutions, and substances which, when released into the environment may
present substantial danger to the public health or welfare or the
environment."[^249] EPA used its authority under CERCLA § 102 to list
lead as a hazardous substance.[^250] Because lead is a component of
lead-based paint, lead-based paint is considered a hazardous substance
under CERCLA.[^251]

*a. Threshold Quantity*

CERCLA and its implementing regulations do not list a threshold quantity
or a minimum concentration for hazardous substances. Faced with this
silence, courts have declined to impose such a limit.[^252] In *Amoco
Oil Co. v. Borden, Inc*.,[^253] the Court of Appeals for the Fifth
Circuit did not impose a quantitative requirement for radium-222
(radium-222 was designated as a hazardous substance pursuant to CERCLA §
102).[^254] The Fifth Circuit held that "the plain statutory language
fails to impose any quantitative requirement on the term hazardous
substance and we decline to imply that any is necessary."[^255] The
Court of Appeals for the Third Circuit in *United States v. Alcan
Aluminum Corp.*,[^256] agreed with the Fifth Circuit and held that
CERCLA's definition of hazardous substance "does not, on its face,
impose any quantitative requirement or concentration level on the
definition of 'hazardous substances.'"[^257] The Third Circuit went on
to observe that "courts that have addressed this issue have almost
universally held that CERCLA liability does not depend on the existence
of a threshold quantity of a hazardous substance."[^258] Because courts
have declined to impose a quantity or concentration limit on the term
"hazardous substance," the mere presence of lead-based paint on the
interior or exterior of a home or in the soil satisfies CERCLA's
"hazardous substance" requirement.

*2. Release or Threatened Release*

*a. Release*

In CERCLA, the term "release" is defined as "any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment (including the
abandonment or discarding of barrels, containers, and other closed
receptacles containing any hazardous substance or pollutant or
contaminant) . . . ."[^259] Faced with this expansive definition, courts
have justifiably given the term "release" a broad interpretation.[^260]
In *United States v. Northernaire Plating Co*.,[^261] the United States
brought suit against the Northernaire Plating Company under CERCLA to
recover response costs associated with a removal action. The United
States District Court for the Western District of Michigan concluded
that evidence which showed that cyanide, lead, cadmium and other
hazardous substances were found in the soil at the Northernaire site was
sufficient to demonstrate that a "release did occur."[^262] In *HRW
Sys., Inc. v. Washington Gas Light Co*.,[^263] the United States
District Court of Maryland was even more expansive in its interpretation
of the term release. In *HRW Systems*, the plaintiff brought suit under
CERCLA to recover response costs for coal-tar that had become located on
its property. Regarding the issue of a release, the court held that
given "the breadth of the definitional language in CERCLA, it seems
virtually impossible to conceive of a situation where hazardous
substances are found in the soil and not *ipso facto* 'released' into
the environment."[^264] In light of the broad interpretation of the term
"release," it is likely a court would conclude that the presence of
lead-based paint in soil constitutes a release under CERCLA.

###### b. Threatened Release

One court has addressed the issue of whether the flaking of lead-based
paint constitutes a threatened release of a hazardous substance. In *ABD
Assoc. Ltd. Partnership v. American Tobacco Co*.,[^265] the plaintiff
brought suit under CERCLA to recover, *inter alia,* the response costs
associated with the cleanup of lead-based paint from the exterior of
several buildings.[^266] The District Court for the Middle District of
North Carolina concluded that, assuming lead-based paint existed on the
property, "there was no genuine issue of material fact as to whether
there was a release or threatened release"[^267] because the plaintiff
introduced uncontroverted evidence "that the lead-based paint could
enter the environment or be emitted into the air."[^268] In this case,
the court acknowledged lead-based paint was a hazardous substance under
CERCLA and went on to conclude that the mere presence of lead-based
paint on the exterior of a building constituted a threatened release
into the environment.

*c. Threshold Quantity*

The definition of "release," like the definition of "hazardous
substance," does not contain a quantitative limit and courts have been
equally reluctant to imply one.[^269] In *Burlington Northern R.R. Co.
v. Woods Indus.*, *Inc*.,[^270] the United States District Court for the
Eastern District of Washington held, "nothing in the definition of the
term 'release' can be construed to require proof of some threshold
quantity."[^271] In *Stewman v. Mid-South Wood Prod. of Mena,
Inc.*,[^272] the Court of Appeals for the Eighth Circuit held "that
there is no minimum quantitative requirement to establish a release or
threat of a release of a hazardous substance under CERCLA."[^273] As
such, a release or threatened release of any quantity or any
concentration of a hazardous substance, constitutes a release or
threatened release under CERCLA.

*3. Release into the Environment*

The final requirement for a response action under CERCLA § 104 is a
release "into the environment."[^274] Under CERCLA, the term
"environment" includes "land surface or subsurface strata or ambient air
within the United States or under the jurisdiction of the United
States."[^275] As such, the flaking, chipping or chalking of lead-based
paint into soil or into the ambient air would be considered a release
"into the environment."[^276]

However, the phrase "into the environment" does not include the interior
of a building.[^277] In *G.L. Leasing Co. v. Union Electric Co*.,[^278]
the Court of Appeals for the Seventh Circuit held that "the release of
asbestos inside a building, with no leak outside ... is not governed by
CERCLA."[^279] In *Reading Co. v. City of Philadelphia*,[^280] the
United States District Court for the Eastern District of Pennsylvania
observed that "\[c\]ase law exists supporting the contention that the
environment referred to by CERCLA includes the atmosphere external to a
building, but not the air within a building."[^281] As a result, it is
unlikely a court would extend CERCLA response authority to include the
remediation of interior lead-based paint.

*4. Limitation of CERCLA §104*

CERCLA § 104(a)(3)(B) limits the President's response authority by
prohibiting a response action under circumstances where there has been a
release or threatened release "from products which are part of the
structure of, and result in exposure within, residential buildings or
business or community structures."[^282] The provision is clear on its
face and courts have interpreted it to preclude a response action under
CERCLA when a release from a structure results in exposure within that
structure.[^283] In *United States v.* *N.L. Indus., Inc.*,[^284] the
United States District Court for the Southern District of Illinois
acknowledged that CERCLA § 104(a)(3)(B) prevented EPA from remediating
lead-based paint in homes at a NPL site even though EPA was remediating
residential soil that had been contaminated by lead from a
smelter.[^285] Thus, CERCLA § 104(a)(3)(B) prohibits response actions
for interior lead-based paint but does not preclude response actions for
exterior lead-based paint and soil contaminated with lead-based paint.

In the context of exterior lead-based paint and soil contaminated by
residential lead-based paint, the language of CERCLA § 104(a)(3)(B) is
significant because of what it does not say. CERCLA § 104(a)(3)(B) was
added by Congress in the Superfund Amendments and Reauthorization Act
(SARA) of 1986.[^286] The purpose of this provision was to limit the
scope of CERCLA. The Senate Report concerning CERCLA § 104(a)(3) states,
"CERCLA response authorities are extremely broad, but there are
nevertheless situations, some of which may be life-threatening, which
are not within the scope of the law's scope."[^287] The Senate Report
also states that CERCLA § 104(a)(3) "makes more explicit the fact that
certain circumstances which may present genuine threats to human health,
welfare or the environment are not within the scope of CERCLA."[^288] It
is clear that Congress intended CERCLA § 104(a)(3) to limit the scope of
CERCLA. However, prior to SARA being enacted, there was a disagreement
between the Senate and House of Representatives regarding the extent to
which the scope of CERCLA should be limited. The Senate version of
CERCLA § 104(a)(3) was eventually adopted.

The House of Representatives version of CERCLA § 104(a)(3) contained a
much broader limitation to CERCLA response authority by prohibiting the
Administrator[^289] from responding under CERCLA § 104 if there was a
"release or threat of a release of a hazardous substance or pollutant or
contaminant from residential dwellings or businesses or community
structures where such dwellings or structures are not used for the
deposition, storage, processing, treatment, transportation, or disposal
of hazardous substances."[^290] Under the House of Representatives
version of CERCLA § 104(a)(3), the Administrator would have no authority
to respond to a release of hazardous substances from a residential
dwelling regardless of whether such a release occurred inside or outside
the dwelling. As a result, if Congress had adopted the House of
Representatives version, the Administrator would have been precluded
from responding under CERCLA to internal or external lead-based paint
hazards as well as to soil contaminated by residential lead-based paint.

The Conference Committee, in reconciling the Senate and House of
Representatives versions of SARA, adopted the Senate version of §
104(a)(3) over the House of Representatives version.[^291] In
reconciling the two competing versions of the statutory provision, the
Conference Committee had to squarely address the issue of whether CERCLA
should apply to releases of hazardous substances from residential
dwellings. The Conference Committee chose the narrower limitation which
only precluded CERCLA response actions for releases within buildings
from products within the structure of the building. The choice of the
Conference Committee was subsequently adopted by the Congress and
indicates that Congress intended CERCLA to regulate releases of
hazardous substances from residential dwellings that are not part of the
dwelling and not contained within the dwelling. As such, the legislative
history of CERCLA § 104(a)(3) supports the interpretation that CERCLA
may be used to regulate exterior lead-based paint as well as soil
contaminated by residential lead-based paint.

**C. Liability Under CERCLA § 107**

To establish liability under CERCLA §107, a plaintiff must prove four
elements:[^292] (1) that the defendant is one of the four classes of
persons described in CERCLA § 107(a);[^293] (2) the site on which the
hazardous substance is located is a "facility";[^294] (3) a release or
threatened release of a hazardous substance has occurred from the
facility; and, (4) the release or threatened release has caused the
plaintiff to incur response costs that were necessary and consistent
with the National Contingency Plan (NCP).[^295]

At Air Force housing, it is likely that the Air Force will be the only
potentially responsible party under CERCLA § 107 for response costs
associated with the remediation of residential lead-based paint hazards
because it is unlikely that there are other past "owners" and
"operators" who could share liability. In addition, it is unlikely that
the vendors who sold the lead-based paint to the military would be
liable because they "arranged for the disposal" of a hazardous
substance. Courts have refused to extend CERCLA § 107 liability this
far, generally concluding that the "sale of a product which contains a
hazardous substance cannot be equated to the disposal of the hazardous
substance itself or even the making of arrangements for its subsequent
disposal. \[Otherwise\] the sale of an automobile would be the disposal
of a hazardous substance."[^296] Under CERCLA § 107, DOD is likely to be
the sole potentially responsible party. However, liability for
lead-based paint hazards is not a foregone conclusion, as some
provisions of CERCLA limit the scope of CERCLA § 107.

1.  *Facilities and Consumer Products*

There is a split among United States Courts of Appeals regarding what
constitutes a release or threatened release from a "facility" when such
a release involves a consumer product, like lead-based paint. The
definition of "facility" specifically excludes "any consumer product in
consumer use."[^297] In *Electric Power Bd. of Chattanooga v.
Westinghouse Elec. Corp*.,[^298] the United States District Court for
the Eastern District of Tennessee used the consumer products exemption
to dismiss a CERCLA § 107 claim even though a hazardous substance
(*i.e*., PCBs) had been released into the environment.[^299] The court
held that the transformer which leaked PCBs when a nearby piece of
electrical equipment exploded was a commercial product in commercial
use, and therefore not a "facility."[^300] Because the PCBs were not
released from a facility, there was no liability under CERCLA § 107.

In asbestos cases, courts are split concerning whether structures
containing asbestos are "facilities" under CERCLA. Some courts have
concluded they are not. In *Kane v. United States*,[^301] the plaintiff
sued the United States under CERCLA after discovering the house which
they purchased from the Veteran's Administration contained
asbestos.[^302] The Court of Appeals for the Eighth Circuit held that
the plaintiff's property was not a facility because it "was a consumer
product in consumer use and thus exempt under CERCLA."[^303] In *Dayton
Indep. School Dist. v. U.S. Mineral Prod. Co*.,[^304] the Court of
Appeals for the Fifth Circuit held that the building "into which the
asbestos-containing material \[was\] installed, constitute\[s\] 'useful
consumer products' within the meaning of the statute" and therefore was
not a facility.[^305]

Other courts have reached the opposite conclusion.[^306] In *California
v. Blech*,[^307] a tenant brought suit against the landlord for costs of
cleaning up asbestos dust accidentally released during a fire.[^308]
Although ultimately dismissing the suit, the Court of Appeals for the
Ninth Circuit held that "structures containing asbestos building
material as distinguished, for example, from containers of such
materials for consumer use, satisfy the broad definition of 'facility'
in CERCLA section 101(9)."[^309] In *C.P. Holdings, Inc. v.
Goldberg-Zoino and Assocs., Inc*.,[^310] the United States District
Court for New Hampshire held that the defendant's "second argument, that
the building itself is a consumer product for the purposes of CERCLA is
equally without merit."[^311]

Based on the foregoing case law, it is uncertain whether a house painted
with lead-based paint would be considered a "facility." If a court
follows the reasoning in *Dayton Indep. School Dist.* and *Kane*, a
house painted with lead-based paint would be considered a consumer
product in consumer use and therefore not a facility. As such, any
release or threatened release of lead-based paint from a home would not
constitute a release or threatened release from a facility and therefore
no liability would attach under CERCLA §107. However, if a court follows
the reasoning in *Blech* and *CP Holding*, a house would be a facility
(*i.e*., not a consumer product) and CERCLA § 107 liability would
attach. In *ABD Assocs. Ltd. Partnership*, the United States District
Court for the Middle District of North Carolina did not analyze the
issue of whether a building coated with lead-based paint was a consumer
product. Instead, the court summarily concluded that it "is undisputed
that the site in question is a 'facility' as defined by 42 U.S.C. §
9601(9)."[^312]

*2. Threshold Quantity*

Although courts have not imposed a threshold quantity or concentration
limit for the terms "hazardous substance" and "release" under CERCLA §
104, some courts have held that the "necessary response cost" language
of CERCLA § 107 does impose such a requirement.[^313] In *Amoco Oil Co.,
Inc.. v. Borden, Inc.,*[^314] the Court of Appeals for the Fifth Circuit
held that response costs are necessary only if they remediate "a release
threatening the public health or the environment."[^315] The court went
on to explain that any release threatens the public health and the
environment if it violates "any applicable state or federal
standard."[^316] Response costs for releases which do not violate a
federal or state standard are not necessary and therefore not
recoverable under CERCLA § 107. For lead-based paint hazards, EPA's
screening level for lead concentration in residential soil is 400
ppm.[^317] There is no generally applicable, quantitative federal
standard which requires the remediation of interior or exterior
lead-based paint.

####### D. EPA Guidance

EPA's guidance concerning lead-based paint hazards has been somewhat
contradictory. Two EPA guidance documents indicate that soil
contaminated by lead-based paint may be remediated under CERCLA.[^318]
However, one guidance document implies just the opposite.[^319]

*1. OSWER Directive No. 9355.4-12: Revised Interim Soil Lead Guidance
for CERCLA Sites and RCRA Corrective Action Facilities*.

OSWER Directive No. 9355.4-12, dated July 14, 1994, is EPA's current
guidance on lead contaminated soils at NPL sites, and it recommends a
screening level of 400 ppm for residential land use.[^320] For lead
contamination below this level, a response under CERCLA is generally not
recommended.[^321] However, for lead concentrations which are greater
than 400 ppm and pose a health risk, Directive No. 9355.4-12 recommends
that the soil be remediated.[^322] This recommendation does not consider
the source of the lead in the soil. If lead is present in the soil at an
NPL site in concentrations greater than 400 ppm, Directive No. 9355.4-12
recommends that it be addressed under CERCLA. Directive No. 9355.4-12
does not distinguish between soil contaminated by lead-based paint and
soil contaminated by another source of lead.

Directive No. 9355.4-12 also asserts that EPA has authority to remediate
exterior lead-based paint under CERCLA. However, the Directive states
that exterior lead-based paint should be remediated "only in conjunction
with soil."[^323] The reason for this limitation is not provided in the
text. On one hand, EPA is clearly indicating that it has authority under
CERCLA to address exterior lead-based paint. However, EPA is also
clearly recommending that this authority not be exercised to the maximum
extent possible. This constraint may be based on EPA's reluctance to
take enforcement actions against owners of residential property.[^324]

Finally, the Directive acknowledges that "interior exposures from
interior paint generally are not within the jurisdiction of . . .
CERCLA." [^325]

*2. Guidance on Identification of Lead-Based Paint Hazards*[^326]

Under Title X, EPA is required to identify residential lead-based paint
hazards.[^327] On July 14, 1994,[^328] EPA issued interim guidance
concerning these hazards and explicitly stated that the guidance was
"not to be applied in addressing potential threats from lead at CERCLA
and RCRA Corrective Action sites. Guidance developed by the Office of
Solid Waste and Emergency Response is the appropriate tool for
addressing these types of sites."[^329] Thus, the interim guidance for
Title X also acknowledges EPA's authority under CERCLA to address
lead-based paint hazards at NPL sites.

3\. OSWER Directive No. 9360.0-19, Guidance on Non-NPL Removal Actions
Involving Nationally Significant or Precedent-Setting Issues.

Headquarters EPA issued OSWER Directive No. 9360.0-19 to the Regional
Offices to control nationally significant or precedent-setting removal
actions at non-NPL sites. Directive No. 9360.0-19 required Headquarters
EPA concurrence before a Regional Office could proceed with certain
categories of removal actions. One such category was "\[r\]emoval
actions at sites involving releases from consumer products in consumer
uses (*e.g*., lead-contaminated soil resulting from peeling lead-based
paint on houses)."[^330] Directive No. 9360.0-19 went on to explain that
"\[Head Quarter\] concurrence will ensure that the Agency avoids a
commitment to the cleanup of widespread non-point source contamination
that is beyond the intended scope of CERCLA."[^331] Directive No.
9360.0-19 clearly implies that EPA, in 1989,considered the remediation
of soil contaminated by residential lead-based paint beyond the scope of
CERCLA.[^332]

**E. Past Practices - Records of Decisions (ROD)**

According to EPA, "\[l\]ead is commonly found at hazardous waste sites
and is a contaminant of concern at approximately one-third of the sites
on the National Priority List."[^333] Yet, a search of LEXIS' ENVIRN-ROD
database and WESTLAW's EDR-ROD database revealed no RODs addressing
exterior lead-based paint or soil contaminated by residential lead-based
paint.[^334] One ROD specifically excluded soil which had been
contaminated by residential lead-based paint. The Commencement Bay -
Nearshore/Tideflats ROD, dated June 1993, addressed an NPL site
encompassing an area of approximately one mile radius around a lead
smelter.[^335] The NPL site was primarily residential and included
approximately 1,820 housing units.[^336] In response to a public comment
concerning the cleanup of lead contamination in soils, the ROD stated:

> It is possible that some exceedances of 500 ppm soil lead may occur in
> the Study Area unrelated to releases from the Asarco smelter. Under
> this remedial action, EPA will take or compel remedial actions at the
> site that address current contamination from smelter operations and
> releases, but not similar contamination resulting from other sources,
> such as lead-based paints or automotive emissions, that are
> widespread. The Superfund law limits the extent to which EPA can
> address releases from these other sources (see CERCLA § 101(22) and §
> 104(a)(3)).[^337]

In this ROD, Region X stated that a response action for soils
contaminated with residential lead-based paint was outside the scope of
CERCLA. This assertion is consistent with OSWER Directive No. 9360.0-19
but contrary to the legal position outlined the following year in OSWER
Directive No. 9355.4-12. Obviously, one of the two legal positions is
mistaken concerning the intended scope of CERCLA.

####### F. Specific Statute Excluding a General Statute

As a general rule of statutory construction, "when two statutes arguably
apply to the same subject matter, the more specific statute applies to
the exclusion of the general statute."[^338] Because the Lead-Based
Paint Poison Prevention Act (as amended by Title X) and CERCLA
potentially apply to Air Force residential lead-based paint hazards, it
is arguable the specific lead-based paint statute excludes the general
statute. However, the aforementioned rule of statutory construction is
contrary to "the cardinal principle of statutory construction that
repeals by implication are not favored."[^339] As a result, "\[t\]he
courts are not at liberty to pick and choose among congressional
enactments, and when two statutes are capable of co-existence, it is the
duty of the courts, absent a clearly expressed congressional intent to
the contrary, to regard each as effective."[^340] Thus, absent clear
congressional intent, courts are required to regard both the Lead-Based
Paint Poisoning Prevention Act and CERCLA as applicable to Air Force
lead-based paint hazards.

However, courts need not struggle with the doctrine of repeal by
implication in the context of residential lead-based paint hazards.
Congress has explicitly allowed EPA to regulate lead-based paint hazards
by stating "\[t\]his section may not be construed to affect the
responsibilities of the Environmental Protection Agency with respect to
the protection of the public health from hazards posed by lead-based
paint."[^341] Thus, even though the provisions of the Lead-Based Paint
Poison Prevention Act and CERCLA may at times overlap, the plain
language of the Lead-Based Paint Poisoning Prevention Act makes it
unlikely that a court will conclude that Congress intended it to
preclude the application of CERCLA to residential lead-based paint
hazards.

####### G. CERCLA Conclusion

Based on the broad statutory language of CERCLA and the expansive
interpretation given to it by federal courts, it appears CERCLA § 104
response authority (and possibly CERCLA § 107 liability) extends to
exterior lead-based paint and soil contaminated by residential
lead-based paint. However, it is also appears that EPA has been
extremely reluctant to use this authority. Until Region IX singled out
the Department of the Army at the Presidio, EPA has never tried to use
CERCLA to address residential lead-based paint hazards at NPL sites. The
question becomes whether the Air Force, as the lead agency at Air Force
sites, should do so now.

OSWER Directive No.9355.4-12, *Revised Interim Soil Lead Guidance for
CERCLA Sites and RCRA Corrective Action Facilities*, and the interim
guidance for Title X both recommend that lead-based paint hazards be
addressed under CERCLA at NPL sites. Because EPA guidance is applicable
to the Air Force via CERCLA § 120(a), it would appear the Air Force
should use CERCLA to address residential lead-based paint hazards at NPL
sites.

However, CERCLA § 120(a) also states that federal agencies "shall be
subject to, and comply with \[CERCLA\] in the same manner and to the
same extent, both procedurally and substantively, as any
non-governmental entity."[^342] When Congress enacted CERCLA § 120, it
was clearly concerned about federal facilities being held to a double
standard. Yet, EPA is apparently promoting this type of double standard.
EPA appears to be trying to hold federal facilities to a higher standard
regarding the remediation of residential lead-based paint hazards at NPL
sites. The Air Force, as the lead agency, has an obligation to resist
the imposition of double standards and should try to ensure that federal
facilities comply with CERCLA to the same extent as any non-governmental
entity. As such, the Air Force should not follow EPA guidance documents
which recommend addressing residential lead-based paint hazards under
CERCLA at NPL sites, but instead follow the precedent established by
years of EPA enforcement. The Air Force should not use CERCLA to
remediate residential lead-based paint hazards until EPA consistently
uses CERCLA to address residential lead-based paint hazards at
non-governmental NPL sites. Instead, the Air Force should continue to
identify, evaluate, control and eliminate lead-based paint hazards in
accordance with its established lead-based paint policy[^343] as this
policy has proven to be effective.

### VI. STATE LEAD-BASED PAINT PROGRAMS

In 1978, President Carter signed Executive Order No. 12,088[^344] which
required all federal facilities to comply with "applicable pollution
control standards," including state and local pollution control
standards.[^345] As a result of Executive Order No. 12,088, federal
facilities are required to comply with state and local lead-based paint
laws. According to Executive Order No. 12,088, if an Executive agency is
notified by a state or local agency that it is in violation of a
pollution control standard, "the Executive agency shall promptly consult
with the notifying agency and provide for its approval a plan to achieve
and maintain compliance with the applicable pollution control
standard."[^346] However, Executive Order No. 12,088 is not enforceable
by any party, including federal or state agencies, and does not provide
for sanctions for noncompliance.[^347] As a result, federal facilities
did not vigorously implement the Executive Order. Regardless of whether
Executive Order No. 12,088 is enforceable, federal facilities are still
obligated to abide by its provisions and comply with state and local
lead-based paint laws.[^348]

Although state and local agencies may not enforce Executive Order No.
12,088, such agencies may enforce their laws and regulations against
federal facilities if Congress has enacted a valid waiver of sovereign
immunity.

### A. Sovereign Immunity

The doctrine of sovereign immunity has been traced to the English
concept of royal supremacy, *i.e*., "the king can do no wrong."[^349]
Because the king could do no wrong, he could not be sued under English
common law without his consent.[^350] Courts in the United States
adopted the doctrine of sovereign immunity even though the country has
never had a sovereign.[^351] Courts did so by imputing the king's
sovereignty "to the United States government because \[the government\]
is the institutional descendant of the Crown."[^352] As such, the United
States government, including its departments, agencies and
instrumentalities, may not be sued without a valid waiver of sovereign
immunity. However, "\[w\]riting an effective waiver of sovereign
immunity is one of Congress' more daunting challenges."[^353] The
"Supreme Court has repeatedly taken the position that any such waivers
must be 'clear and unequivocal'[^354] in their statutory text[^355] with
any ambiguity being resolved in favor of the government (*i.e.* that
there is no waiver).\" [^356] For example, in *United States Department
of Energy v. Ohio*, the Supreme Court narrowly interpreted the waiver of
sovereign immunity in the Resource Conservation and Recovery Act (RCRA)
and held that the statute did not waive sovereign immunity for punitive
fines.[^357] In response, Congress, in an effort to make the waiver of
sovereign immunity "as clear and unambiguous as humanly possible,"[^358]
passed the Federal Facilities Compliance Act of 1992[^359] which, *inter
alia*, broadened RCRA's waiver of sovereign immunity to include punitive
fines.[^360] The waiver of sovereign immunity in RCRA was apparently
used as a pattern for the waiver of sovereign immunity in Title X.

### B. Sovereign Immunity and Lead-Based Paint

Title X includes a waiver of sovereign immunity which subjects both
federal property and federal actions[^361] to "all Federal, State,
interstate, and local requirements, both substantive and procedural . .
. respecting lead-based paint, lead-based paint activities, and
lead-based paint hazards in the same manner, and to the same extent as
any nongovernmental entity is subject to such requirements."[^362] While
the lead-based paint waiver of sovereign immunity was patterned after
RCRA's waiver, it is different in that it does not require federal
facilities to be treated in the same manner as state or local
governmental agencies.[^363] The lead-based paint waiver only requires
federal facilities to be treated as any other "nongovernmental entity."
As such, state or local governments may exempt themselves from certain
lead-based paint provisions and yet still require federal agencies to
comply with those provisions.

The lead-based paint waiver of sovereign immunity is applicable to
federal agencies "(1) having jurisdiction over any property or facility,
or (2) engaged in any activity resulting, or which may result, in a
lead-based paint hazard."[^364] Because the Air Force has jurisdiction
over its housing, Air Force housing falls squarely within the scope of
the lead-based paint waiver of sovereign immunity. As such, the Air
Force is subject to sanctions for not complying with state and local
requirements regarding "lead-based paint, lead-based paint activities
and lead-based paint hazards."[^365] Such requirements may be
substantive or procedural and may include any requirement for
certification, licensing, record keeping or reporting.[^366] As a
result, it is difficult to imagine a generally applicable state or local
lead-based paint program which would not be included in this expansive
waiver of sovereign immunity.

**C. State Lead-Based Paint Programs**[^367]

Faced with possible fines and injunctions, Air Force installations must
be cognizant of state and local lead-base paint programs. States have
responded to the hazards associated with lead-based paint with a variety
of programs. Although some states have failed to enact any laws
regarding residential lead-based paint,[^368] most states regulate
residential lead-based paint in some manner. However, state lead-based
paint programs vary widely and range from comprehensive programs
requiring abatement, to programs which merely provide information to the
general public concerning the dangers posed by residential lead-based
paint. The lead-based paint laws from Massachusetts, Illinois and
California are discussed below as a representative sample of state
lead-based paint programs which may affect Air Force installations.

1.  *The Massachusetts Lead-Based Paint Program*[^369]

Massachusetts has one of the oldest and most comprehensive lead-based
paint programs in the country. Massachusetts enacted its first
lead-based paint statute in 1971.[^370] The statute established a
lead-based paint program that was broad in scope and required, *inter
alia*, reporting by physicians of lead poisoning in children,[^371] a
public information program to promote awareness concerning the danger of
lead poisoning,[^372] a program to detect the sources of lead
poisoning,[^373] and the establishment of a state laboratory to test
samples and specimens for lead.[^374] The program also required that
"\[w\]henever a child or children under six years of age resides in any
residential premises in which any paint, plaster or other accessible
materials contain dangerous levels of lead ...the owner shall remove or
cover said paint, plaster or other material so as to make it
inaccessible to children under six years of age."[^375] The statute
specifically excluded repainting with non-lead-based paint as a means of
complying with the statute.[^376] By requiring abatement or covering of
lead-based paint hazards in private homes, Massachusetts' program
greatly exceeded any federal requirement. However, Massachusetts'
program did not have the far reaching impact intended. For example,
"between 1981 and 1986, only 2260 of 450,339 lead-contaminated units in
the selected area were abated. The limited success of the regulatory
program \[was\] attributed to 'organized opposition from real estate
interests and limited funding for enforcement.'"[^377] Even though most
owners of property were not complying with Massachusetts law, in fiscal
years 1992 and 1993, Hanscom Air Force Base, Massachusetts, removed all
lead-based paint in base housing at a cost of \$6.3 million.[^378]

In 1993, Massachusetts amended and expanded its lead-based paint
program.[^379] However, the most notable change scaled back the
abatement provisions and allowed owners to "contain" lead-based paint
hazards by painting over such hazards with non-lead-based paint which
had been approved by the state for such use.[^380]

Massachusetts' current lead-based paint program requires sellers to
notify prospective purchasers of lead-based paint hazards,[^381]
requires the use of state certified contractors for lead-based paint
abatement,[^382] requires owners to notify the local board of health
before beginning lead-based paint abatement work,[^383] and requires a
licensed inspector to perform a post-abatement inspection and issue a
letter of full compliance.[^384] In addition, Massachusetts' program
imposes strict liability on the owner of any premises for damages to a
child under six years of age for lead-poisoning caused by failure to
comply with the lead-based paint abatement provisions.[^385]

*2. The Illinois Lead-Based Paint Program*[^386]

The Illinois lead-based paint program is not as extensive as the
Massachusetts program. Illinois' program was first enacted in 1973[^387]
and significantly amended in 1991[^388] and 1995.[^389] The most
important facet of Illinois' program is the requirement that physicians
"screen children 6 months to 6 years of age for lead poisoning who
reside in an area defined as high risk."[^390] If a child is found to
have an elevated blood lead level, the physician must make a report to
the Illinois Department of Public Health.[^391] Upon receipt of such a
report, representatives from the Department of Public Health may inspect
the child's dwelling.[^392] If the inspection identifies a lead
hazard,[^393] the owner is required to mitigate the hazard.[^394] A lead
hazard is deemed to have been mitigated if "the surface identified . . .
is no longer in a condition that produces a hazardous level of leaded
chips, flakes, dust . . . that can be ingested or inhaled by
humans,"[^395] or the lead coated surface is removed, covered or is no
longer accessible by children.[^396]

Illinois' program does not require the inspection or abatement of
lead-based paint in housing unless a child has been identified as having
an elevated blood lead level. This general approach has been referred to
as the "canary in the coal mine" approach and has been criticized for
using children as the indicator species.[^397] However, Illinois'
program also tries to prevent lead poisoning rather than merely react to
it by providing information to the general public about the hazards
associated with lead-based paint.[^398]

In addition, Illinois law provides that failure to remove a lead hazard
which has been identified by the Department of Public Health is *prima
facie* evidence of negligence.[^399] This provision should be of concern
to Air Force installations because the United States may be liable under
the Federal Tort Claims Act for damages caused by the negligent acts or
omissions of its employees.[^400]

*3*. *California's Residential Lead-Based Paint Program*[^401]

California enacted its first lead poisoning prevention act in
1986.[^402] Although the program was amended in 1989[^403] and
recodified in 1995, it has changed little since 1986. California's
program does not require the inspection or abatement of lead-based paint
hazards. Instead, the program focuses on studying California's lead
poisoning problem,[^404] developing a blood lead screening
program,[^405] and requiring laboratories to report elevated blood
levels.[^406] However, the California statute does allow for the
promulgation of regulations which would govern "the abatement of lead
paint in and on housing, including, but not limited to, standards for
enforcement, testing, abatement and disposal."[^407] These regulations
have not been promulgated as of yet. If these regulations are ever
promulgated, they may have a significant impact on abatement activities
at Air Force installations located in California.

**D. Tort Implications**

Under the Federal Tort Claims Act (FTCA), the United States may be
liable for damages caused by the negligent acts or omissions of its
employees acting within the scope of their employment.[^408] However,
the waiver of sovereign immunity in the FTCA is subject to the
discretionary function exception.[^409] Under the discretionary function
exception, the United States may not be liable for damages resulting
from a decision that is committed to the discretion of a federal agency
or employee.[^410] The FTCA does not define "discretionary function."
However, the Supreme Court in *United States v. Gaubert*[^411] outlined
a two-part test to determine the applicability of the discretionary
function exception.[^412] First, the discretionary function "exception
covers only acts that are discretionary in nature, acts that
'involv\[e\] an element of judgment or choice.'"[^413] Second, the
action must be "of the kind that the discretionary function exception
was designed to shield. . . . \[That is,\] legislative and
administrative decisions grounded in social, economic, and political
policy."[^414] If a federal action satisfies both parts of the *Gaubert*
test, the discretionary function exemption precludes the United States
from being held liable under the FTCA.

In 1996, in *Angle v. United States*,[^415] the Court of Appeals for the
Sixth Circuit, in an unpublished opinion, relied on the discretionary
function exception and held that the Air Force was not liable under the
FTCA for "failure to remove lead-based paint from military housing or to
warn residents of the dangers of such paint."[^416] The court found that
the base commander's decision to control lead-based paint hazards by
encapsulation (*i.e*., painting over lead-base paint with non-lead
paint) was a policy decision that fell within the discretionary function
exemption.[^417] While the *Angle* decision was a clear victory for the
Air Force, it has little value in current lead-based paint
litigation[^418] because the cause of action in *Angle* arose prior to
the enactment of Title X and the implementation of the current Air Force
lead-based paint policy.[^419] Both Title X and the current Air Force
lead-based paint policy may negate the discretionary function exception
in lead-based paint cases.

To fall within the first part of the discretionary function test, agency
action must "involve\[\] an element of judgment or choice."[^420]
"\[W\]hen a federal statute, regulation or policy specifically
prescribes a course of action for an employee to follow,"[^421] the
discretionary function exception does not apply.[^422] The lead-based
paint waiver of sovereign immunity prescribes just such a course of
action by requiring federal agencies to "comply with all Federal, State,
interstate, and local requirements . . . respecting lead-based paint,
lead-based paint activities, and lead-based paint hazards."[^423]
Because the lead-based paint waiver of sovereign immunity imposes a
specific, mandatory duty to abide by state lead-based paint laws,
failure to do so may negate the discretionary function exception and
subject the Air Force to tort suits under the FTCA.

In addition, the Air Force lead-based paint policy establishes mandatory
duties regarding lead-based paint which may also negate the
discretionary function exception. In *Pierre v. United States*,[^424]
the United States District Court for Massachusetts held that HUD was
liable for failing to remove lead-based paint from a home as required by
HUD regulations.[^425] The court found that the decision not to remove
the lead-based paint from the home was not a discretionary decision
beyond the reach of the FTCA.[^426] The court stated that

> the decision by the Secretary of HUD to implement a particular policy
> of lead-based paint removal falls within the discretionary function
> exemption of the FTCA. . . . \[But\], \[t\]he regulations and manuals
> which implement HUD's lead-based paint removal policy do not
> contemplate a policy-making discretionary function for those at the
> operational or implementational level."[^427]

As such, failure to properly implement the Air Force lead-based paint
policy may eliminate the discretionary function exception and subject
the Air Force to tort actions under the FTCA.

The lead-based paint waiver of sovereign immunity and the Air Force
lead-based paint policy may have eliminated the discretionary function
exception for many lead-based paint tort cases. As such, the Air Force
may be liable for negligent acts or omissions involving lead-based paint
if those acts or omissions violate state law or Air Force policy.

### E. Review of State Lead-Based Paint Programs

State lead-based paint programs range from stringent to non-existent and
are subject to change at any time by the state legislature. As such, the
impact of state lead-based paint programs on Air Force installations
will vary from state to state over time. However, the expansive
lead-based paint waiver of sovereign immunity necessitates that Air
Force installations be mindful of state and local lead-based paint
programs to avoid the possible imposition of sanctions as well as
potential tort liability.

### VII. CONCLUSION

Residential lead-based paint has been the subject of federal legislation
since 1971. Yet, despite numerous statutes and amendments regulating
lead-based paint, Air Force housing which is currently in use by Air
Force personnel is only subject to RCRA, the disclosure rule, the
training and certification rule for personnel engaged in lead-based
paint activities, and applicable state requirements. Air Force housing
which is being sold may be subject to additional inspection and
abatement requirements. Despite the overall lack of federal regulation,
the Air Force has developed an effective program to manage lead-based
paint hazards. The incidence rate of elevated blood lead levels for
children living on Air Force installations is 0.7 percent, well below
the national average of 8.9 percent. Despite the adage "it is best not
to fix things which are not broken," clearly implementation of the Air
Force lead-based paint program could be improved. The forthcoming Air
Force Instruction and Air Force Manual should distinguish between
requirements and guidance, then allow each installation the flexibility
to adopt a lead-based paint management plan which is best suited to its
particular circumstances. In this way, installations will be given the
information they need to develop effective, cost-conscious lead-based
paint management plans.

[^1]: \*Major Zimmerman (B.S., United States Air Force Academy; J.D.,
    University of Virginia; LL.M., George Washington University) is an
    environmental litigation attorney assigned to the Environmental Law
    & Litigation Division, Rosslyn, Virginia. He is a member of the
    Pennsylvania Bar.

    ^?^ Martha Mahoney, *Four Million Children at Risk: Lead Paint
    Poisoning Victims and the Law*, 9 [Stan. Envtl. L.J.]{.smallcaps},
    46, 46 (1990).

[^2]: 61 Fed. Reg. 29170, 29170 (1996) (citing Centers for Disease
    Control*, Strategic Plan for the Elimination of Lead Poisoning*
    (1991) and Agency for Toxic Substances and Disease Registry, *The
    Nature and Extent of Lead Poisoning in Children in the United
    States: A Report to Congress* (1988)).

[^3]: For an explanation of exactly how lead levels are measured and the
    prevalence of unacceptable levels, *see* [U.S. Department of Housing
    and Urban Development, Guidelines for the Evaluation and Control of
    Lead-Based Paint Hazards in Housing]{.smallcaps} (1995)
    \[hereinafter HUD [Guidelines]{.smallcaps}\].

[^4]: Herbert L. Needleman, *Low Level Lead Exposure: A Continuing
    Problem*, 19:3 [Pediatric Annuals]{.smallcaps} 208, 209-10 (Mar.
    1990) \[hereinafter *Low Level Exposure*\].

[^5]: [Centers for Disease Control, Preventing Lead Poisoning in Young
    Children, A Statement by the Centers for Disease
    Control]{.smallcaps} 18 (1991) \[hereinafter [Preventing Lead
    Poisoning]{.smallcaps}\].

[^6]: 42 U.S.C. §§ 4821-46 (1994).

[^7]: Pub. L. No. 102-550 §§ 1001-1061, 106 Stat. 3672, 3897-3927
    (1992).

[^8]: 42 U.S.C. §§ 6901-6992k (1994).

[^9]: 42 U.S.C. §§ 9601-9675 (1994).

[^10]: Letter from Air Force Chief of Staff, Air Force Policy and
    Guidance on Lead-Based Paint in Facilities (May 24, 1993)
    \[hereinafter A.F. Lead Paint Policy\].

[^11]: [Preventing Lead Poisoning]{.smallcaps}, *supra* note 5, at 7.

[^12]: *Low Level Exposure*, *supra* note 4, at 209-10.

[^13]: *Id*. at 210.

[^14]: Anil Minocha*, NUTRITION: Lowering the Risks of Lead Toxicity*, 3
    F[or Kids' Sake 2, 2 (]{.smallcaps}Summer 1985).

[^15]: [Preventing Lead Poisoning]{.smallcaps}, *supra* note 5, at 7.

[^16]: *Id*. at 9.

[^17]: *Low Level Exposure*, *supra* note 4, at 210.

[^18]: Lorne Garrettson, *SILENT MENACE: Lead as a Cause of Retardation
    and Learning Disabilities,* 3 F[or Kids' Sake 1, 1
    (]{.smallcaps}Summer 1985).

[^19]: [Herbert]{.smallcaps} L. [Needleman]{.smallcaps}, H[uman Lead
    Exposure]{.smallcaps} 36 (1992) \[hereinafter [Human Lead
    Exposure]{.smallcaps}\].

[^20]: *Statement on Childhood Lead Poisoning*, 79
    [Pediatrics]{.smallcaps} 457, 457 (1987).

[^21]: *Low Level Exposure*, *supra* note 4, at 208.

[^22]: *Id*.

[^23]: [Preventing Lead Poisoning]{.smallcaps}, *supra* note 5, at 7.

[^24]: *Id*. at 8.

[^25]: *Id*.

[^26]: *Id*. at 2.

[^27]: Sim S. Galazka, *Lead Poisoning in Children: A Multidimensional
    Hazard*, 36 P[ediatric Basics (]{.smallcaps}March 1984).

[^28]: *Low Level Exposure*, *supra* note 4, at 208.

[^29]: *Id*. In Australia, A.J. Turner and J.L. Gibson established that
    the cause of lead poisoning in children was white lead-based paint
    on the porches and railings of the children's homes. *Low Level
    Exposure*, *supra* note 4 at 209.

[^30]: [Human Lead Exposure,]{.smallcaps} *supra* note 19, at 39.

[^31]: [Preventing Lead Poisoning]{.smallcaps}, *supra* note 5, at 17.

[^32]: *Id.* at 18.

[^33]: *Statement on Childhood Lead Poisoning*, 79 P[ediatrics
    457,]{.smallcaps} 460 (1987).

[^34]: [Preventing Lead Poisoning]{.smallcaps}, *supra* note 5, at 18
    (Soil and dust may also be contaminated by leaded gas emissions or
    industrial sources, *e.g*., smelters.).

[^35]: All Air Force statistics cited in this section were provided by
    HQ AFCESA/CESE, 139 Barnes Drive, Suite 1, Tyndall Air Force Base,
    Florida, 32403-5319.

[^36]: [S. Rep. No.]{.smallcaps} 332, 102d Cong.(1992).

[^37]: A.F. Lead Paint Policy, *supra* note 10.

[^38]: This is important as the Air Force is currently developing an Air
    Force Instruction and an Air Force Manual to clarify its lead-based
    paint policy. Letter from the Office of The Civil Engineer, Director
    of Environment, Policy and Guidance on Lead-Based Paint (LBP) Final
    Disclosure Rule (Aug. 19, 1996).

[^39]: Disclosure of Information Concerning Lead Upon Transfer of
    Residential Property, 42 U.S.C. § 4852d (1994).

[^40]: Lead-Based Paint Activities Training and Certification, 15 U.S.C.
    § 2682 (1994).

[^41]: Requirements for Housing Receiving Federal Assistance, 42 U.S.C.
    § 4822(a)(3) (1994).

[^42]: Lead-Based Paint Poisoning Act of 1971, Pub. L. No. 93-151 §
    4(a)(1), 87 Stat. 566 (1973). The author does not consider the
    lead-based paint waiver of sovereign immunity a new requirement.
    Although the waiver of sovereign immunity, 15 U.S.C. § 2688 (1996),
    is a significant new provision in the statute and is discussed in
    Part VI, it does not add any new requirements because it merely
    subjects the Air Force to sanctions for failing to abide by
    applicable federal, state and local laws.

[^43]: Pub. L. No. 91-695 § 301, 84 Stat. 2078 (1971).

[^44]: Pub. L. No. 102-550, 106 Stat. 3672 (1992).

[^45]: Pub. L. No. 104-66 § 1061, 109 Stat.719, 728 (1995).

[^46]: 15 U.S.C. §§ 2681-92 (1994).

[^47]: Pub. L. No. 102-550 §1021(c), 106 Stat. 3672, 3924 (1992).

[^48]: Pub. L. No. 91-596 § 2, 84 Stat.1590 (1970).

[^49]: Australia had passed a law in the 1920s which restricted the use
    of lead-based paint in dwellings. *Low Level Exposure*, *supra* note
    4, at 208.

[^50]: Pub. L. No. 91-695 § 401, 84 Stat. 2078, 2079 (1971) (Lead-based
    paint was defined as paint containing 1 percent lead by weight in
    the non-volatile content of the paint or in the dried film of the
    paint. Pub. L. No. 91-695, § 501(3), 84 Stat. 2078, 2080 (1971). The
    definition of lead-based paint is currently 0.5 percent lead by
    weight. 42 U.S.C. § 4851b(14) (1994); 15 U.S.C. § 2681(9) (1994)).

[^51]: 16 C.F.R. § 1303.4 (1996) (For the purpose of the ban on the
    manufacture of lead-based paint, CPSC defines lead-based paint as
    paint containing lead or lead compounds in excess of .06 percent of
    the total non-volatile content of the paint or the weight of the dry
    paint film. Thus, Title X's definition and CPSC's definition of
    lead-based paint are significantly different.).

[^52]: Pub. L. No. 91-695 § 101, 84 Stat. 2078, 2078 (1971).

[^53]: *Id.* § 201.

[^54]: *Id.* § 301.

[^55]: Pub. L. No. 93-151, 87 Stat. 565 (1973).

[^56]: *Id*.

[^57]: *Id*.

[^58]: In 1988, Congress directed HUD to provide tenants and purchasers
    of federally assisted housing with a brochure describing the hazards
    associated with lead-based paint. Tenants of federally owned housing
    were not required to receive the same brochure. Housing and
    Community Development Act of 1987, Pub. L. No. 100-242, § 566, 101
    Stat. 1815, 1945 (1988). In 1992, under Title X, Congress required
    that lead-based paint risk assessments be performed on federally
    assisted housing. 42 U.S.C. § 4822(a) (1996). In addition, Congress
    required interim lead-based paint controls be implemented at
    federally assisted housing. *Id*. Interim controls are "a set of
    measures designed to reduce temporarily human exposure or likely
    exposure to lead-based paint hazards." 42 U.S.C. § 4851b(13) (1996).
    Congress has not required risk assessments or interim controls for
    all federally owned housing.

[^59]: National Consumer Health Information and Health Promotion Act of
    1976, Pub. L. No. 94-317 § 204, 90 Stat. 695, 705 (1976).

[^60]: Health Services and Centers Amendments of 1978, Pub. L. No.
    95-626 § 316(b), 92 Stat. 3551, 3588 (1978).

[^61]: Housing and Community Development Act of 1987, Pub. L. No.
    100-242 § 566, 101 Stat. 1815, 1945 (1988).

[^62]: 42 U.S.C. § 4822(c) (1994) (emphasis added).

[^63]: *Id*.

[^64]: *Id.* § 4822(a) (1994).

[^65]: [H.R. Rep. No.]{.smallcaps} 122, 100th Cong., 1st Sess. 92-3
    (1987).

[^66]: [H.R. Conf. Rep. No. 426,]{.smallcaps} 100th Cong., 1st Sess.
    243-4 (1987).

[^67]: 53 Fed. Reg. 20790, 20798 (1988).

[^68]: The two changes to 42 U.S.C. § 4822(c) made by Title X are found
    in Pub. L. No. 102-550, § 1012, 106 Stat. 3672, 3905 (1992).

[^69]: Stewart B. McKinney Homeless Assistance Amendments Act of 1988,
    Pub. L. No. 100-628 § 1088, 102 Stat. 3224, 3280 (1988).

[^70]: [H.R. Conf. Rep. No.]{.smallcaps} 1089, 100th Cong., 2d Sess. 108
    (1988).

[^71]: Stewart B. McKinney Homeless Assistance Amendments Act of 1988 §
    1088(h).

[^72]: [H.R. Conf. Rep. No.]{.smallcaps} 1089, 100th Cong., 2d Sess. 110
    (1988).

[^73]: 42 U.S.C. § 4851d (1994). Target housing means "any housing
    constructed prior to 1978, except housing for the elderly or persons
    with disabilities (unless any child who is less than 6 years of age
    resides or is expected to reside in such housing for the elderly or
    persons with disabilities) or any 0-bedroom dwelling." 42 U.S.C. §
    4851b (27) (1994).

[^74]: 61 Fed. Reg. 9064 (1996).

[^75]: 24 C.F.R. §§ 35.88, 35.90, 35.92 (1996); 40 C.F.R. §§ 745.107,
    745.110, 745.113 (1996).

[^76]: 42 U.S.C. § 4851d (1994).

[^77]: 24 C.F.R. §35.86 (1996); 40 C.F.R. §745.103 (1996).

[^78]: *Id.*

[^79]: Letter from the Office of The Civil Engineer, Director of
    Environment, Policy and Guidance on Lead-Based Paint (LBP) Final
    Disclosure Rule (Aug. 19, 1996).

[^80]: 24 C.F.R. § 35.88(a) (1996); 40 C.F.R. § 745.107(a) (1996). Both
    sections state: "\[n\]othing in this section implies a positive
    obligation on the seller or lessor to conduct any evaluation or
    reduction activities."

[^81]: 24 C.F.R. § 5.82(b) (1996); 40 C.F.R. § 745.101(b) (1996).

[^82]: 61 Fed. Reg. 9064, 9067 (1996).

[^83]: This rationale is contrary to the focus of Title X which
    emphasizes efficiency and cost-effectiveness when reducing the
    hazards associated with lead-based paint. [S. Rep. No.]{.smallcaps}
    332, 102d Cong., 2d Sess. 111 (1992). The choice is to comply with
    burdensome regulations or abate lead-based paint which does not pose
    a health hazard (*i.e.* eliminate a non-existent health risk).

[^84]: 61 Fed. Reg. 9064, 9067 (1996). This restriction makes little
    sense. The rationale offered by HUD and EPA for not allowing sellers
    the opportunity to avoid the disclosure rule is that a purchaser
    might be denied the opportunity to conduct a lead-based paint risk
    assessment or inspection, a statutory right established by Title X.
    This rationale is weak at best. A better approach would be to only
    require the seller to allow purchasers the opportunity to conduct a
    risk assessment or inspection if the housing is declared lead-free
    by a certified inspector. It is senseless to impose a laundry list
    of requirements to protect one statutory inspection right. This is
    especially true if the laundry list of requirements being imposed
    pertains to lead-based paint and the house has been declared
    lead-free.

[^85]: 15 U.S.C. § 2682(a) (1994). To become a certified lead-based
    paint abatement worker, a person must complete an accredited
    training program. 61 Fed. Reg. 45778, 45820 (1996) (to be codified
    at 40 C.F.R. § 745.226(c)).. An accredited training program for
    abatement workers "shall last a minimum of 16 training hours, with a
    minimum of 8 hours devoted to hands-on training activities." *Id*.
    at 45816 (to be codified at 40 C.F.R. § 745.225(c)(6)(v)). The
    curriculum for the training program shall include information
    regarding: the role and responsibilities of the abatement worker;
    the adverse health affects of lead; federal, state and local
    lead-based paint regulations; lead-based paint recognition and
    control; and, methods to abate and reduce lead-based paint hazards.
    *Id*. at 45817 (to be codified at 40 C.F.R. § 745.225(d)(5)).

[^86]: 61 Fed. Reg. 45778, 45813-45825 (1996) (to be codified at 40
    C.F.R. §§ 745.220-745.239).

[^87]: 61 Fed. Reg. 45778, 45813-5 (1996) (to be codified at 40 C.F.R. §
    745.220 & § 745.223). Persons performing lead-based paint activities
    in their own home need not be trained or certified. Also,
    individuals performing lead-based paint activities in a home where a
    child has been identified with elevated blood lead levels need not
    be trained or certified.

[^88]: 15 U.S.C. § 2688 (1994).

[^89]: Inspection is defined as "a surface-by-surface investigation to
    determine the presence of lead-based paint and the provision of a
    report explaining the results of the investigation." 61 Fed. Reg.
    45778, 45815 (1996) (to be codified at 40 C.F.R. § 745.223).

[^90]: Risk assessment is defined as: "(1) an on-site investigation to
    determine the existence, nature, severity, and location of
    lead-based paint hazards, and (2) the provision of a report by the
    individual or the firm conducting the risk assessment, explaining
    the results of the investigation and options for reducing lead-based
    paint hazards." 61 Fed. Reg. 45778, 45815 (1996) (to be codified at
    40 C.F.R. § 745.223).

[^91]: 61 Fed. Reg. 45778, 45813-4 (1996) (to be codified at 40 C.F.R. §
    745.223).

[^92]: *Id.*

[^93]: *Id.*

[^94]: *Id*.

[^95]: As a cautionary note, the Air Force must be careful that
    performance of the contract will not require a certified lead-based
    paint contractor. If a non-certified contractor subsequently
    discovers that a lead-based paint certification is required to
    perform the contract, the Air Force may incur substantial cost to
    modify or terminate the contract.

[^96]: 15 U.S.C. § 2684(a) (1994).

[^97]: 61 Fed. Reg. 45778, 45825-30 (1996) (to be codified at 40 C.F.R.
    §§ 745.320-745.339).

[^98]: 15 U.S.C. § 2684(e) (1994).

[^99]: 61 Fed. Reg. 45778, 45813 (1996) (to be codified at 40 C.F.R. §
    745.220).

[^100]: 15 U.S.C. § 4822(a)(3) (1994).

[^101]: *Id.*§ 4822(a)(3)(C).

[^102]: *Id.* § 4822(a)(3)(A).

[^103]: 61 Fed. Reg. 29170, 29179 & 29209 (1996).

[^104]: 42 U.S.C. § 4822(a)(3)(B) (1994).

[^105]: Pub. L. No. 93-151, 87 Stat. 566 (1973).

[^106]: [S. Rep. No.]{.smallcaps} 332, 102d Cong., 2d Sess. 195 (1992).

[^107]: 24 C.F.R. § 35.56(a) (1991).

[^108]: 24 C.F.R. § 35.3 (1991).

[^109]: Interview with Major John W. Coho, Environmental Program
    Manager, Installations and Logistics, Headquarters United States Air
    Force (May 15, 1997).

[^110]: 15 U.S.C. § 4822(a)(3)(A) (1994).

[^111]: [S. Rep. No.]{.smallcaps} 332, 102d Cong., 2d Sess. 118-9
    (1992). However, the legislative history is clear that the abatement
    must be performed. "While the Committee is aware that agencies
    including HUD have been known to require purchasers to waive their
    rights under this provision, the Committee views waivers and other
    tactics to avoid enforcement of the provision as contrary to the
    intent of the LPPPA as written." *Id*. at 118.

[^112]: 61 Fed. Reg. 29170, 29209 (1996).

[^113]: In the original text, the phrase was "non-owner occupant
    purchaser." However, this makes no sense as a "purchaser" cannot be
    a "non-owner." The phrase should read "non-occupant purchaser" to be
    consistent with language used earlier in the proposed rule. 61 Fed.
    Reg. 29170, 29179 (1996).

[^114]: 61 Fed. Reg. 29170, 29209 (1996).

[^115]: [H.R. Rep. No.]{.smallcaps} 95, 102d Cong., 1st Sess. 86 (1991).

[^116]: *Id*.

[^117]: *Id*.

[^118]: [H.R. Rep. No.]{.smallcaps} 129, 103d Cong., 1st Sess. 288
    (1993).

[^119]: *Id*.

[^120]: A.F. Lead Paint Policy, *supra* note 10, Attach. 1, ¶ 4.

[^121]: 42 U.S.C. § 4852(c) (1994).

[^122]: 42 U.S.C. § 4851b(9) (1994).

[^123]: [HUD Guidelines]{.smallcaps}, *supra* note 3.

[^124]: *Id*. at xix.

[^125]: 61 Fed. Reg. 29170, 29209 (1996).

[^126]: [HUD Guidelines]{.smallcaps}, *supra* note 3, at xix.

[^127]: *[I]{.smallcaps}d* at preface.

[^128]: A.F. Lead Paint Policy, *supra* note 10, Attach. 1, ¶ 6.a.

[^129]: *Id.* Attach. 2, ¶ 7.

[^130]: *Id*. Attach. 2, ¶ 8.c.

[^131]: *Id*.

[^132]: *Id*. Attach. 2, ¶ 6.e. In-place management is defined as
    "\[i\]nterim measures which reduce an LBP hazard to acceptable
    levels. They include monitoring the condition of painted surfaces
    and reducing dust by high-phosphate detergent washing or top coating
    by painting or wall coverings, repairing deteriorating by painting,
    and performing cleanup activities." *Id.*

[^133]: *Id*. Attach. 2, ¶ 6.f. Abatement is defined as "\[l\]ong-term
    or permanent measures which eliminate the possibility of hazardous
    exposure by replacement of building components (doors, cabinets,
    molding, etc.), encapsulation with drywall or siding, and removal."
    *Id.*

[^134]: Letter from Air Force Medical Operations Agency, Child Blood
    Lead Screening Program (Apr. 2, 1993).

[^135]: Letter from the Office of The Civil Engineer, Director of
    Environment, Policy and Guidance on Lead-Based Paint (LBP) Final
    Disclosure Rule (Aug. 19, 1996).

[^136]: Letter from Principal Assistant Deputy Under Secretary of
    Defense (Environmental Security), Asbestos, Lead Paint and Radon
    Policies at BRAC Properties (Oct. 31, 1994).

[^137]: A.F. Lead Paint Policy, *supra* note 10, Attach. 1, ¶ 1.

[^138]: 42 U.S.C. § 4822(a)(3) (1994). Abatement is defined as the
    removal, containment or encapsulation of lead-based paint and the
    removal or covering of lead contaminated soil. 42 U.S.C. § 4851b(1)
    (1994).

[^139]: *See, e.g*., Pierre v. United States, 741 F.Supp. 306 (D. Mass.
    1990) (holding HUD liable for negligently repainting house which
    contained lead-based paint that was sold to plaintiff); Brooks v.
    United States, 712 F.Supp. 667 (N.D. Ill. 1989) (explaining although
    judgment entered in favor of United States, court acknowledged that
    United States could be liable under the Federal Tort Claims Act for
    injuries caused by lead-based paint).

[^140]: Suzette Brooks, *Legal Considerations of Disposal of
    Lead-Contaminated Construction Debris*, N.Y.L.J., Jul. 19, 1993, at
    1.

[^141]: 42 U.S.C. §§ 6901-6992k (1994). Lead-based paint wastes must
    also be handled in accordance with state law. State hazardous waste
    programs vary from state to state because states may administer and
    enforce their own hazardous waste programs subject to EPA approval.
    *Id*. § 6926(a).

[^142]: *Id.* §§ 6941-49a.

[^143]: *Id.* §§ 6921-39e.

[^144]: OSWER Directive No. 9502.1995(02), Corrective Action Authorities
    (1995). The RCRA corrective action program includes 42 U.S.C. §
    6924(u) (permitted treatment, storage and disposal (TSD)
    facilities), § 6924(v) (action beyond the boundary of the facility),
    § 6928(h) (interim status facilities), § 6925(c)(3) (omnibus
    permitting authority), and § 6973 (imminent and substantial
    endangerment).

[^145]: 42 U.S.C. § 6903(27) (1994).

[^146]: *Id*.

[^147]: "Solid Waste is a very broad term covering all solid and liquid
    forms, and some gaseous forms, of household trash, discarded
    industrial materials, sludge from mining operations, etc. With the
    exception of wastes regulated under other laws (e.g., nuclear
    materials), RCRA's definition of solid waste covers just about
    everything encompassed by a 'common sense' definition of waste." 55
    Fed. Reg. 14556, 14604 (1990).

[^148]: 42 U.S.C. § 6903(27) (1994); 40 C.F.R. § 261.4(a) (1996).

[^149]: As will be discussed below, the wastes may also have to comply
    with the more rigorous requirements of RCRA Subtitle C, 42 U.S.C. §
    6921-39e (1994).

[^150]: 40 C.F.R. Part 257 (1996).

[^151]: 40 C.F.R. Part 258 (1996).

[^152]: 40 C.F.R. §§ 257.3-1, 258.11 (1996).

[^153]: 40 C.F.R. §§ 257.3-6, 258.22 (1996).

[^154]: 40 C.F.R. §§ 257.3-3, 257.3-4, 258.26, 258.27, 258.50-59 (1996).

[^155]: 40 C.F.R. §§ 257.3-7, 258.24 (1996).

[^156]: 40 C.F.R. § 261.2 (1996). Hazardous wastes must be solid wastes
    under the regulatory definition of solid waste. Solid waste is
    defined in 40 C.F.R. § 261.2 as discarded material that is not
    excluded or granted a variance. A discarded material is any material
    which is abandoned, recycled or inherently waste-like.

[^157]: 42 U.S.C. § 6903(5) (1994).

[^158]: "Listed" hazardous wastes are set out in 40 C.F.R. §§ 261.30-35
    (1996). There are four lists of hazardous waste: F listed waste
    (from non-specific sources), K listed waste (from specific sources,
    usually manufacturing and processing), and P and U listed waste
    (off-specification or discarded commercial chemical products).

[^159]: To be considered a "characteristic" hazardous waste, a solid
    waste must be ignitable (for a liquid, it must have a flash point
    less than 140 degrees Fahrenheit; for a solid, it is capable of
    causing a fire through friction, absorption of moisture or
    spontaneous chemical change. 40 C.F.R. § 261.21 (1996)); corrosive
    (ph less than or equal to 2, or ph greater than or equal to 12.5. 40
    C.F.R. § 261.22 (1996)); reactive (unstable and readily undergoes
    violent change without detonating, reacts violently with water, or
    when mixed with water, generates toxic gases. 40 C.F.R. § 261.23
    (1996)); or toxic (40 C.F.R. § 261.24 (1996)).

[^160]: 40 C.F.R. § 260.10 (1996). There are three classes of generators
    based on the quantity of hazardous waste generated in a calendar
    month: Conditionally exempt small quantity generators (generate no
    more than 100 kg of hazardous waste per month, 40 C.F.R. § 261.5
    (1996)); Small quantity generators (generate more than 100 kg but
    less than 1000 kg, 40 C.F.R. § 262.44 (1996)); and, Large quantity
    generators (generates 1000 kg or more). A typical Air Force
    installation is a large quantity generator.

[^161]: 40 C.F.R. § 262.11 (1996).

[^162]: 40 C.F.R. § 262.11(c)(1) (1996).

[^163]: 40 C.F.R. § 262.11(c)(2) (1996).

[^164]: 61 Fed. Reg. 45778, 45798 (1996).

[^165]: 40 C.F.R. § 261.3(a)(2)(ii), (iii) (1996). However, if a solid
    waste is mixed with a listed waste that is listed only because it
    exhibits a hazardous characteristic, the resulting mixture is not
    considered hazardous waste if the resulting mixture no longer
    exhibits the hazardous characteristic. Mixed wastes (except wash
    water) are still subject to the Land Ban (40 C.F.R. subpart 268)
    even if they no longer exhibit a hazardous characteristic at the
    point of land disposal.

[^166]: 40 C.F.R. § 261.20.

[^167]: 40 C.F.R. § 261.24.

[^168]: 55 Fed. Reg. 14556, 14604 (1990).

[^169]: *Id*.

[^170]: Brooks, *supra* note 140.

[^171]: 61 Fed. Reg. 45778, 45798 (1996).

[^172]: *Id*.

[^173]: 61 Fed. Reg. 29170, 29170 (1996).

[^174]: 61 Fed. Reg. 45778, 45798 (1996).

[^175]: Pub. L. No. 94-580, § 3001, 90 Stat. 2795, 2806 (1976) (codified
    at 42 U.S.C. § 6921(a) (1994)).

[^176]: 40 C.F.R. §261.4(b) (1996). "The following solid wastes are not
    hazardous wastes: (1) Household waste, including household waste
    that has been collected, transported, stored, treated, disposed,
    recovered . . . or reused." *Id.*

[^177]: 45 Fed. Reg. 33084, 33098-99 (1980) (citing [S. Rep.
    No]{.smallcaps}. 94-988, 94th Cong., 2d Sess. 16 (1976) ("The
    hazardous waste program is not to be used to control the disposal of
    substances used in households or to extend control over general
    municipal wastes based on the presence of such substances.").

[^178]: 49 Fed. Reg. 44978, 44978 (1984).

[^179]: *Id*.

[^180]: OSWER Directive No. 9441.1990(09), Applicability of the
    Household Hazardous Waste Exclusion to Waste Generated by
    Contractors (1990).

[^181]: OSWER Directive No. 9443.1994(03) (1994).

[^182]: The guidance concerning contractors was superseded by OSWER
    Directive No. 9441.1990(09), Applicability of the Household
    Hazardous Waste Exclusion to Waste Generated by Contractors (1990).

[^183]: OSWER Directive No. 9443.1987(28), Lead-Based Paint Residues and
    Lead Contaminated Residential Soil For Public/Private Housing Units
    (1987).

[^184]: OSWER Directive No. 9443.1994(03) (1994).

[^185]: Returning to the 1987 interpretation of the household hazardous
    waste exclusion regarding wastes generated by lead-based paint
    abatement would obviate the need for the rulemaking noted in
    paragraph IV.A(2)(b).

[^186]: OSWER Directive No. 9441.1995(08), Applicability of the
    Household Waste Exclusion to Lead-Contaminated Soil (1995).

[^187]: *Id*.

[^188]: *Id.*

[^189]: *Id*.

[^190]: *Id*.

[^191]: Under RCRA, "treatment" is defined as "any method, technique or
    process, including neutralization, designed to change the physical,
    chemical or biological character or composition of any hazardous
    waste so as . . . to render such waste . . . less hazardous." 40
    C.F.R. § 260.10 (1996). It would appear that adding a soil, mulch or
    gravel cap to contaminated soil might satisfy the definition of
    treatment because it is arguably changing the physical character of
    the soil to make it less hazardous. However, for the purposes of
    lead-based paint, EPA interprets the definition of treatment
    narrowly. This narrow interpretation appears to be motivated by a
    desire to avoid the need for a RCRA permit for on-site abatement
    activities involving soil contaminated by lead-based paint.

[^192]: Compliance with environmental laws is not a defense under CERCLA
    § 107, 42 U.S.C. § 9607 (1994). United States v. Pretty Products,
    Inc., 780 F.Supp. 1488 (S.D. Ohio 1991); United States v. Marisol,
    Inc., 725 F.Supp. 833 (M.D. Pa. 1989). However, there is a narrow
    exception for federally permitted releases. 42 U.S.C. § 9607(j)
    (1994).

[^193]: Unless the harm is divisible, CERCLA liability is joint and
    several. United States v. R.W. Meyer, Inc., 889 F.2d 1497 (6th Cir.
    1989), *cert. denied*, 494 U.S. 1057 (1990); O'Neil v. Picillo, 883
    F.2d 176 (5th Cir. 1989); United States v. Chem-Dyne Corp., 572
    F.Supp. 802 (S.D. Ohio 1983).

[^194]: The RCRA corrective action process is not codified in the Code
    of Federal Regulations. However, the steps outlined in EPA's
    proposed Hazardous Waste Corrective Action Program, 55 Fed. Reg.
    30798 (1990), are used as guidance and are common to most RCRA
    corrective actions. The corrective action process generally
    includes: a facility assessment (identification of releases or
    potential release sites to determine if further information is
    required); a facility investigation (characterize the nature and
    extent of contamination at a facility); a corrective measures study
    (identify a solution for the problem at the site); and corrective
    measures implementation (implement the solutions). Interim measures
    may also be required to address sites which pose a threat to human
    health and the environment or to prevent migration. *Id.* at
    30801-2.

[^195]: OSWER Directive No. 9502.1995(02), Corrective Action Authorities
    (1995).

[^196]: 42 U.S.C. § 6924(u) (1994).

[^197]: *Id.* § 6924(v).

[^198]: *Id.* § 6928(h).

[^199]: *Id*. § 6925(c)(3).

[^200]: *Id*. § 6925(e).

[^201]: *Id*. § 6928(h).

[^202]: The term "release" is defined in CERCLA § 101(22), 42 U.S.C.
    §9601(22)(1994). However, the CERCLA definition is applicable in
    RCRA because "release" is considered a term of art in environmental
    law. Center for Creative Studies v. Aetna Life and Casualty Co., 871
    F.Supp. 941 (E.D. Mich. 1994).

[^203]: OSWER Directive No. 9355.4-12, Revised Interim Soil Lead
    Guidance for CERCLA Sites and RCRA Corrective Action Facilities
    (recommends a screening level of 400 ppm for residential soils).

[^204]: 42 U.S.C. § 6925 (1994).

[^205]: 42 U.S.C.§ 6924(u) (1994). Instead of using 42 U.S.C. § 6924(u),
    EPA could use its omnibus permitting authority, 42 U.S.C. §
    6925(c)(3) (1994).

[^206]: 40 C.F.R. Part 261, app. VIII (1996).

[^207]: Because RCRA § 3004(u) corrective action includes hazardous
    constituents, it is irrelevant that some lead-based paint waste may
    be excluded from regulation under RCRA Subtitle C by the household
    waste exclusion. As long as abatement waste contains a hazardous
    constituent (*i.e*., lead), it is potentially subject to RCRA §
    3304(u) corrective action.

[^208]: In 1990, EPA proposed the following definition: "Any discernible
    unit at which solid wastes have been placed at any time,
    irrespective of whether the unit was intended for the management of
    solid or hazardous waste. Such units include any area at a facility
    at which solid wastes have been routinely and systematically
    released." 55 Fed. Reg. 30798, 30808 (1990). However, this
    definition was not incorporated into the Code of Federal Regulation.

[^209]: 50 Fed. Reg. 28702, 28712 (1985) (citing H.R. Rep. No. 198, 98th
    Cong., 1st Sess., Part 1, 60 (1983)).

[^210]: Owen Elec. Steel Co. of South Carolina, Inc. v. Browner, 37 F.3d
    146 (4th Cir. 1994); National-Standard Co. v. Adamkus, 881 F.2d 352
    (7th Cir. 1989).

[^211]: OSWER Directive No. 9502.1995(02), Corrective Action Authorities
    (1995).

[^212]: OSWER Directive No. 9355.4-12, Revised Interim Soil Lead
    Guidance for CERCLA Sites and RCRA Corrective Action Facilities.

[^213]: *Id*.

[^214]: 42 U.S.C. §6924(v) (1994).

[^215]: 42 U.S.C. § 6973 (1994).

[^216]: This is not meant to imply that EPA may bring suit against the
    Air Force as such a suit would violate the "Unitary Executive
    Theory." *Federal Facilities Hazardous Waste Compliance Manual*,
    OSWER Directive 9992.4 (1990).

[^217]: 42 U.S.C. § 6973 (1994).

[^218]: United States v. Rohm and Haas Co., 2 F.3d 1265 (3rd Cir. 1993).

[^219]: McClellan Ecological Seepage Situation (MESS) v. Cheney, 763
    F.Supp. 431, 435 (E.D. Cal. 1988) ("The Government acknowledges that
    federal facilities are subject to \[RCRA §§3004(u), 3008(h) and
    7003\].").

[^220]: Price v. United States Navy, 39 F.3d 1011, 1019 (9th Cir. 1994)
    (explaining "a finding that an activity may present an imminent and
    substantial harm does not require actual harm."); Dague v. City of
    Burlington, 935 F.2d 1343, 1355 (2nd Cir. 1991) (stating "\[a\]
    finding of 'imminency' does not require a showing that actual harm
    will occur immediately so long as the risk of threatened harm is
    present."); United States v. Waste Indus. Inc., 734 F.2d 159, 167
    (4th Cir. 1984) (holding "\[t\]he EPA need not prove that an
    emergency exists to prevail under section 7003, only that the
    circumstance may present an imminent and substantial
    endangerment.").

[^221]: *Lead-Based Paint Pits EPA Against Army on National Policy
    Question*, [Def. Environ. Alert]{.smallcaps} (Jan. 29, 1997).

[^222]: *Id*. *See also, Dispute Over Lead in Soil Cleanup Could Trigger
    New Cleanup Procedures,* [Def. Environ. Alert]{.smallcaps} (Jan. 28,
    1998) (The State of Indiana and EPA assert that lead-based paint in
    residential soil at Fort Benjamin Harrison, a closing Army base in
    Indiana, should be remediated under CERCLA. The Army disagrees.).

[^223]: DOD and EPA are cooperating to develop a guide book that will
    address how to remediate lead-contaminated soil. The guide book will
    apparently rely on Title X standards and procedures for cleanup
    rather than CERCLA. If so, EPA will be backing away from its
    previous assertion that CERCLA is the appropriate vehicle to address
    the cleanup of lead-contaminated soil. *See, In Attempt to Lift
    Deadlock, DOD, EPA Developing Guidance for Lead in Soil,* [Def.
    Environ. Alert]{.smallcaps} (Feb. 11, 1998).

[^224]: Section 211 of the Superfund Amendments and Reauthorization Act
    (SARA) of 1986, Pub. L. No. 99-499 § 211, 100 Stat. 1613, 1719,
    codified the Defense Environmental Restoration Program (DERP) (10
    U.S.C. §§ 2701-2708 (1994)). Under DERP, the Secretary of Defense is
    given primary responsibility for all response actions with respect
    to releases of hazardous substances at facilities or sites owned,
    leased to, or otherwise possessed by the DOD, and at facilities or
    sites owned, leased to, or otherwise possessed by the DOD at the
    time of actions leading to contamination by hazardous substances. 10
    U.S.C. § 2701(c)(1) (1994). Response actions must be carried out
    "subject to, and in a manner consistent with, section 120 (relating
    to federal facilities) of \[CERCLA\]" and "in consultation with the
    Administrator of the Environmental Protection Agency." 10 U.S.C. §§
    2701(a)(2) & (3) (1994). In addition, DERP incorporates the CERCLA
    definitions for "release," "facility," "person," "environment" and
    "hazardous substance." 10 U.S.C. § 2707(1) (1994). Because the DERP
    must be consistent with CERCLA § 120 and incorporates the
    definitions contained in CERCLA, a separate analysis regarding DOD's
    obligation to address residential lead-based paint hazards under
    DERP is not warranted.

[^225]: 42 U.S.C. § 9620 (1994) (CERCLA § 120 was added by SARA, Pub. L.
    No. 99-499 § 120, 100 Stat. 1613, 1666 (1986)).

[^226]: 42 U.S.C. § 9620(a)(1) (1994).

[^227]: *Id*.

[^228]: 132 Cong. Rec. 29,756 (1986).

[^229]: 42 U.S.C. § 120(d) (1994) (Preliminary assessments were to be
    completed by April 17, 1988.).

[^230]: 42 U.S.C. § 9620(e)(2) (1994).

[^231]: 42 U.S.C. § 9620(a)(3) (1994).

[^232]: *See*, Exec. Order No. 12580, 3 C.F.R. 193 (1988).

[^233]: *Id*. ¶ 2.d.

[^234]: 40 C.F.R. § 300.5 (1996) (To recover response costs under CERCLA
    § 107, federal agency response costs must not be inconsistent with
    the NCP. 42 U.S.C. § 9607(a)(4)(A) (1994)).

[^235]: 40 C.F.R. §§ 300.410(b) & 300.420(b) (1996).

[^236]: *Id*. §§ 300.410(d) & 300.420(c).

[^237]: *Id*. § 300.430(d).

[^238]: *Id.* § 300.430(e).

[^239]: *Id.* § 300.435(b).

[^240]: 42 U.S.C. § 9620(e)(4) (1994).

[^241]: *Id*.

[^242]: Exec. Order No. 12,580, ¶ 2.d., 3 C.F.R. 193, 195 (1988)
    (delegating authority under CERCLA § 104(a)).

[^243]: 42 U.S.C. § 9620(a)(2) (1994).

[^244]: *Id*.

[^245]: DOD is not subject to EPA guidance concerning removal actions.
    42 U.S.C. § 9620(a)(2) (1994).

[^246]: 42 U.S.C. § 9604(a)(1) (1994).

[^247]: *Id.* § 9601(14).

[^248]: *Id*.

[^249]: *Id.* § 9602(a) (1994).

[^250]: 40 C.F.R. § 302.4 (1996).

[^251]: Louisiana-Pacific Corp. v. ASARCO Inc., 24 F.3d 1565 (9th Cir.
    1994) (stating that if product is not specifically listed as
    hazardous substance, but its components include hazardous
    substances, product is regulated by CERCLA), *cert. denied*, 513
    U.S. 1103 (1995); United States v. New Castle County, 769 F.Supp.
    591, 596 (D. Del. 1991) (explaining that "\[w\]hen a defendant's
    waste is a mixture, like lead-based paint, the dissociation of the
    hazardous substance from the waste can be presumed and the party
    disposing of the mixture should be held liable under CERCLA.");
    United States v. Carolawn Co., 14 Envtl. L. Rep. 20, 696 (D. S.C.
    1984) (rejecting the defendant\'s argument that water-based paint
    was not a hazardous substance because water-based paint "is not
    specifically listed as a hazardous substance under any of the
    statutory provisions referenced in CERCLA Section 101(14)." The
    court said, "whether a material is hazardous under CERCLA depends on
    the character of its constituents. If a waste material contains
    hazardous substances, then the waste material is itself a hazardous
    substance for the purposes of CERCLA.").

[^252]: B. F. Goodrich v. Betkoski, 99 F.3d 505 (2d Cir. 1996) (holding
    that in determinations whether a substance is hazardous under CERCLA
    § 101(14), quantity or concentration are not factors); Dedham Water
    Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146 (1st Cir. 1989)
    (noting that listing establishes that a substance is hazardous);
    United States v. Wade, 577 F.Supp. 1326 (E.D. Pa. 1983) (explaining
    a listed substance is hazardous regardless of the concentration or
    amount).

[^253]: 889 F.2d 664 (5th Cir. 1989).

[^254]: *Id*. at 669.

[^255]: *Id*.

[^256]: 964 F.2d 252 (3rd Cir. 1992).

[^257]: *Id*. at 260.

[^258]: *Id*.

[^259]: 42 U.S.C. § 9601(22) (1994).

[^260]: Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989)
    (holding the definition of "release" should be broadly construed);
    Washington v. Time Oil Co., 687 F.Supp. 529, 531 (W.D. Wash. 1988)
    (explaining "the presence of hazardous substances on the Time Oil
    property has resolved to the court's satisfaction that there clearly
    has been a 'release' within the meaning of CERCLA . . . . It is
    enough that the substances are there, and it is not necessary for
    the purposes of this motion to trace their release to one entity or
    another."); United States v. Bliss, 667 F.Supp. 1298, 1305 (E.D. Mo.
    1987) (stating that "the presence of dioxin and TCP in soil at the
    six sites constitute a release at the six sites.").

[^261]: 670 F.Supp. 742 (W.D. Mich. 1987) *aff'd*, 889 F.2d 1497 (6th
    Cir. 1989), *cert. denied*., 494 U.S. 1057, 110 S.Ct. 1527, 108
    L.E.2d 767 (1990).

[^262]: *Id*. at 746-47.

[^263]: 823 F.Supp. 318 (D. Md. 1993).

[^264]: *Id*. at 341.

[^265]: 1995 U.S. Dist. LEXIS 11094 (M.D. N.C. 1995).

[^266]: *Id*. at 10.

[^267]: *Id*. at 18.

[^268]: *Id*.

[^269]: Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989)
    (holding that "the plain statutory language fails to impose any
    quantitative requirement on the term 'release.'"); Mid Valley Bank
    v. North Valley Bank, 764 F.Supp. 1377, 1386 (E.D. Cal. 1991)
    (explaining "CERCLA imposes no quantitative requirement on the term
    'release.'"); United States v. Western Processing Co., Inc., 734
    F.Supp. 930, 936 (W.D. Wash. 1990) (stating that the statutory
    definition of "release" \[does not\] contain a threshold
    requirement).

[^270]: 815 F.Supp. 1384 (E.D. Wash. 1993).

[^271]: *Id*. at 1390.

[^272]: 993 F.2d 646 (8th Cir. 1993).

[^273]: *Id*. at 648.

[^274]: The phrase "into the environment" is redundant in CERCLA §
    104(a)(1) because the definition of "release" also includes the same
    phrase. 42 U.S.C. 9601(22) (1994). By definition, a "release" must
    be "into the environment."

[^275]: 42 U.S.C. §9601(8) (1994).

[^276]: Yellow Freight Sys., Inc. v. ACF Indus., Inc., 909 F.Supp. 1290
    (E.D. Mo. 1995) (stating presence of asbestos in soil outside
    building constitutes a release into the environment.); HRW Sys.,
    Inc. v. Washington Gas Light Co., 823 F.Supp. 318 (D. Md. 1993)
    (holding hazardous substances in soil are a release into the
    environment).

[^277]: First United Methodist Church v. U.S. Gypsum Co., 882 F.2d 862
    (4th Cir. 1989) (pointing out that CERCLA cannot be reasonably
    interpreted to encompass the asbestos removal problem in buildings),
    *cert. denied*, 493 U.S. 1070 (1990).

[^278]: 54 F.3d 379 (7th Cir. 1995).

[^279]: *Id*. at 384.

[^280]: 823 F.Supp 1218 (E.D. Pa. 1993).

[^281]: *Id*. at 1238.

[^282]: 42 U.S.C. §9604(a)(3)(B) (1994). This limitation is subject to
    exception if the President determines that a release or threatened
    release "constitutes a public health or environmental emergency and
    no other person with the authority and capability to respond to the
    emergency will do so in a timely manner." 42 U.S.C. § 9604(a)(4)
    (1994).

[^283]: 3550 Stevens Creek Assocs. v. Barclays Bank of California, 915
    F.2d 1355, 1358-9 (9th Cir. 1990) (explaining "\[o\]ther courts
    considering this language have concluded that the 'environment'
    referred to in the statute 'includes the atmosphere, external to the
    building,' but not the air within a building."), *cert. denied*, 500
    U.S. 917 (1991); Covalt v. Carey Canada, Inc., 860 F.2d 1434, 1439
    (7th Cir. 1988) (stating \"\[t\]he interior of a place of employment
    is not \'the environment\' for purposes of CERCLA."); *See* *also*
    California v. Blech, 976 F.2d 525, 527 (9th Cir. 1992) (holding the
    "President was not authorized by CERCLA to respond; specifically,
    when the release or threatened release is (1) from a product that is
    part of the structure of the building; and (2) the resulting
    exposure is wholly within the structure.").

[^284]: 936 F.Supp. 545 (S.D. Ill. 1996).

[^285]: *Id*. at 554. The City of Granite City sought to enjoin the
    clean up of residential soil at a NPL site that was contaminated
    from the emissions of lead from smelting operations. The City
    argued, *inter alia*, that irreparable harm would be done if the
    clean up only addressed lead contaminated soil because "the City's
    residents \[would have\] a false sense of security that could result
    \[from\] the residents failing to appreciate the health risk of
    lead-based paint in their homes." In addressing the City's concern,
    the court explained "CERCLA § 104(a)(3)(B) . . . precludes the EPA
    from conducting remedial actions in residential buildings." *Id.*

[^286]: Pub. L. No. 99-499, § 104(c), 100 Stat. 1613, 1618 (1986).

[^287]: [S. Rep. No]{.smallcaps}. 11, 99th Cong., 1st Sess. 16 (1985).

[^288]: *Id*. at 15-16.

[^289]: The House of Representatives version used "Administrator"
    instead of "the President."

[^290]: [H.R. Rep. No]{.smallcaps}. 253, Part V, 99th Cong., 1st Sess.
    159 (1985).

[^291]: [H.R. Conf. Rep. No]{.smallcaps}. 962, 99th Cong., 2d Sess. 190
    (1986).

[^292]: 42 U.S.C. § 9606(a) (1994) (Defenses are limited to those
    outlined in 42 U.S.C. § 9607(b) (1994)) (an act of God; an act of
    war; or act or omission by a limited class of third parties).

[^293]: 42 U.S.C. § 9607(a) (1994). The four classes of persons are:

    > \(1\) the owner and operator of a vessel or facility,
    >
    > \(2\) any person who at the time of disposal of any hazardous
    > substance owned or operated any facility at which such hazardous
    > substances were disposed of,
    >
    > \(3\) any person who by contract, agreement, or otherwise arranged
    > for disposal . . . of hazardous substances . . . at any facility
    > or incineration vessel owned or operated by another party or
    > entity and containing such hazardous substances, and
    >
    > \(4\) any person who accepts or accepted any hazardous substance
    > for transport to disposal or treatment facilities, incineration
    > vessels or sits.

[^294]: 42 U.S.C. § 9601(9) (1994) defines facility as "(A) any
    building, structure, installation, equipment, pipe . . . (B) any
    site or area where a hazardous substance has been deposited, stored,
    disposed of, or placed or otherwise come to be located; but does not
    include any consumer product in consumer use or any vessel."

[^295]: For response costs incurred by the United States government,
    response actions must be necessary and not inconsistent with the
    NCP. 42 U.S.C. § 9607(a)(4)(A) (1994).

[^296]: G.L. Leasing Co., Inc. v. Union Elec. Co., 54 F.3d 379, 384 (7th
    Cir. 1995); Dayton Indep. School Dist. v. U.S. Mineral Prod., 906
    F.2d 1059, 1065 (5th Cir. 1990) (holding "\[i\]t is clear that
    Congress did not intend CERCLA to target legitimate manufactures or
    sellers of useful products.... The sale of asbestos-containing
    products for useful consumption is not the 'arranging for disposal'
    of a hazardous substance at a 'facility.'"); *see also* 3550 Stevens
    Creek Assocs. v. Barclays Bank of California, 915 F.2d 1355, 1358-9
    (9th Cir. 1990) (explaining "no federal court which has considered
    the placement of asbestos as part of the structure of a building has
    concluded that it falls within the scope of Section 107(a)."),
    *cert. denied*, 500 U.S. 917 (1991). If placement of asbestos in a
    building is not disposal of a hazardous substance, then painting a
    structure with lead-based paint should likewise not be considered as
    disposal.

[^297]: 42 U.S.C. § 9601(9) (1994).

[^298]: 716 F.Supp. 1069 (E.D. Tenn. 1988).

[^299]: *Id*. at 1079. *But see* KN Energy, Inc. v. Rockwell Int'l.,
    Corp., 840 F.Supp. 95 (D.Colo. 1993) (holding pipeline and natural
    gas facilities are not consumer products because the consumer
    products exemption was intended to cover individual consumers, not
    businesss); Reading Co. v. City of Philadelphia, 823 F.Supp. 1218
    (E.D. Pa. 1993) (stating railroad car leaking PCBs was not a
    consumer product).

[^300]: 716 F.Supp. at 1080.

[^301]: 15 F.3d 87 (8th Cir. 1994).

[^302]: *Id*.

[^303]: *Id*. at 89.

[^304]: 906 F.2d 1059 (5th Cir. 1990).

[^305]: *Id*. at 1065.

[^306]: Yellow Freight Sys., Inc. v. ACF Indus., Inc., 909 F.Supp. 1290,
    1296 (E.D. Mo. 1995) (stating "\[s\]tructures containing asbestos
    building materials satisfy the broad definition of 'facility' in
    CERCLA."); National R.R. Passenger Corp., v. New York City Hous.
    Auth., 819 F.Supp. 1271 (S.D.N.Y. 1993) (holding that buildings
    containing asbestos are facilities for CERCLA purposes).

[^307]: 976 F.2d 525 (9th Cir. 1992).

[^308]: *Id*. at 526.

[^309]: *Id*. at 527.

[^310]: 769 F.Supp. 432 (D.N.H. 1991).

[^311]: *Id*. at 439.

[^312]: ABD Assocs. Ltd. Partnership v. American Tobacco Co., 1995
    U.S.Dist LEXIS 11094, \*11 (M.D.N.C. 1995).

[^313]: Stewman v. Mid-South Wood Prod. of Mena, Inc., 993 F.2d 646, 649
    (8th Cir. 1993) (explaining "a 'factual inquiry' is required in
    order to determine whether the particular hazard justifies any
    response action."); United States v. Alcan Aluminum Corp., 964 F.2d
    252, 266 (3rd Cir. 1992) (stating "the Government must simply prove
    that the defendant's hazardous substances were deposited at the site
    from which there was a release and that the release caused the
    incurrence of response costs."); Jastram v. Phillips Petroleum Co.,
    844 F.Supp. 1139 (E.D. La. 1994); *but see* United States v. Western
    Processing Co., Inc., 734 F.Supp. 930 (W.D. Wash. 1990).

[^314]: 889 F.2d 664 (5th Cir. 1989).

[^315]: *Id*. at 670.

[^316]: *Id*. at 671.

[^317]: OSWER Directive, No. 9355.4-12, Revised Interim Soil Lead
    Guidance for CERCLA Sites and RCRA Corrective Action Facility.

[^318]: *Id*.; Guidance on Identification of Lead-Based Paint Hazards,
    60 Fed. Reg. 47248 (1995).

[^319]: OSWER Directive, No. 9360.0-19, Guidance on Non-NPL Removal
    Actions Involving Nationally Significant or Precedent-Setting
    Issues.

[^320]: OSWER Directive No. 9355.4-12, Revised Interim Soil Lead
    Guidance for CERCLA Sites and RCRA Corrective Action Facility.

[^321]: *Id*.

[^322]: *Id.*

[^323]: *Id*.

[^324]: OSWER Directive, No. 9834.6, Policy Towards Owners of
    Residential Property at Superfund Sites. "EPA, in the exercise of
    its enforcement discretion, will not take enforcement action against
    an owner of residential property to require such owner to undertake
    response actions or pay response costs, unless the residential
    homeowner's activities lead to a release or threatened release of
    hazardous substances, resulting in the taking of response action at
    the site."

[^325]: OSWER Directive, No. 9355.4-12, Revised Interim Soil Lead
    Guidance for CERCLA Sites and RCRA Corrective Action Facility. The
    Directive also states "CERCLA \[has\] very limited authority
    regarding the clean up of interior paint." Apparently, the use of
    the terms "generally" and "limited" refers to CERCLA § 104(a)(4),
    which gives the President the discretion to respond to a release or
    threatened release of a hazardous substance that constitutes a
    public health or environmental emergency. However, this is not
    stated in the Directive. Absent CERCLA § 104(a)(4) authority, a
    review of case law reveals that EPA has no authority to remediate
    interior lead-based paint under CERCLA.

[^326]: 60 Fed. Reg. 47248 (1995).

[^327]: 15 U.S.C. § 2683 (1994).

[^328]: The interim guidance was republished on Sept. 11, 1995, 60 Fed.
    Reg. 47248 (1995).

[^329]: 60 Fed. Reg. 47248, 47249 (1995).

[^330]: OSWER Directive, No. 9360.0-19, Guidance on Non-NPL Removal
    Actions Involving Nationally Significant or Precedent-Setting
    Issues.

[^331]: *Id*.

[^332]: Although the scope of Directive No. 9360.0-19 is limited to
    removal actions at non-NPL sites, the underlying rational for the
    policy (*i.e*., that lead-contaminated soil resulting from peeling
    lead-based paint on houses is beyond the intended jurisdiction of
    CERCLA) would seem to be equally applicable to all response actions
    at NPL sites.

[^333]: OSWER Directive, No. 9355.4-02, Interim Guidance on Establishing
    Soil Lead Cleanup Levels at Superfund Sites.

[^334]: The ROD for the National Zinc Corporation site (an area within a
    three mile radius of the smelting facilities, including residential
    properties) in Bartlesville, Oklahoma, recognized lead "may also
    have other non-smelter related sources in a typical urban
    environment", and acknowledged that "peeling or chalking lead-based
    paint" from homes may be an important exposure pathway. However, the
    ROD did not attempt to differentiate the lead contamination due to
    residential lead-based paint.

[^335]: Commencement Bay-Nearshore/Tideflats ROD, June, 1993.

[^336]: *Id.*

[^337]: *Id.*

[^338]: AMREP Corp. v. F.T.C., 768 F.2d 1171, 1176 (10th Cir. 1985),
    *cert. denied*, 475 U.S. 1034 (1986).

[^339]: United States v. Continental Tuna Corp., 425 U.S. 164 (1976).

[^340]: Morton v. Mancari, 417 U.S. 535 (1974).

[^341]: 42 U.S.C. § 4822(g) (1994).

[^342]: 42 U.S.C. § 9620(a)(1) (1994).

[^343]: A.F. Lead Paint Policy, *supra* note 10, Attach. 1, ¶ 6.a.

[^344]: Exec. Order No. 12,088, 3 C.F.R. 243 (1979).

[^345]: *Id*.

[^346]: *Id*. at 1-601.

[^347]: Exec. Order No. 12580, 3 C.F.R. 193 (1988). Exec. Order No.
    12,580 amended Exec. Order 12,088 by renumbering the current section
    1-802 as 1-803, and adding the following as 1-802: "Nothing in this
    Order shall create any right or benefit, substantive or procedural,
    enforceable at law by a party against the United States, its
    agencies, its officers, or any person."

[^348]: The relationship between Exec. Order No. 12,088 and the
    discretionary function exception to the Federal Tort Claims Act is
    discussed *infra* note 422.

[^349]: Note, *Federal Sovereign Immunity and Clean Water: A Supreme
    Misstep,* [24 Envtl. L. 263, 263 (1994) (]{.smallcaps}citing
    [William Blackstone, Commentaries 238-39).]{.smallcaps}

[^350]: Randall S. Abate and Carolyn H. Cogswell, *Sovereign Immunity
    and Citizen Enforcement of Federal Environmental Laws: A Proposal
    for a New Synthesis,* 15 [Va. Envtl. L.J. 1, 4 (1995)]{.smallcaps}

[^351]: Note, *supra* note 349, at 263.

[^352]: *Id.*

[^353]: [Laurent R. Hourclé, Federal Facilities]{.smallcaps} 7 (1997).

[^354]: Hancock v. Train, 426 U.S. 167 (1976); Ruckelshaus v. Sierra
    Club 463 U.S. 680 (1983); United States v. Nordic Village, Inc., 503
    U.S. 30 (1992); and United States Dep't of Energy v. Ohio, 503 U.S.
    607 (1992).

[^355]: 503 U.S. at 37 (stating "the 'unequivocal expression' of
    elimination of sovereign immunity that we insist upon is an
    expression in statutory text. If clarity does not exist there, it
    cannot be supplied by a committee report.").

[^356]: 503 U.S. at 615 ("Waivers of immunity must be 'construed
    strictly in favor of the sovereign' \[citation omitted\] and not
    enlarge\[d\] . . . beyond what the language requires."); Hourclé,
    *supra* note 353, at 7-8 (1997).

[^357]: 503 U.S. at 611. The Supreme Court also held that the waiver of
    sovereign immunity in the Clean Water Act did not subject the
    government to liability for civil fines for past violations of the
    Clean Water Act.

[^358]: Daniel Horne, *Federal Facility Environmental Compliance After
    United States Department of Energy v. Ohio*, 65 [Colo. L.
    Rev.]{.smallcaps} 632, 638 (1994).

[^359]: Pub. L. No. 102-386, § 102(a), 106 Stat. 1505 (1992) (codified
    at 42 U.S.C. § 6961(a) (1994)).

[^360]: 42 U.S.C. § 6961(a) (1994).

[^361]: Sovereign immunity is only waived for actions which result, or
    may result in, a lead-based paint hazard. 15 U.S.C. § 2688 (1994).

[^362]: 15 U.S.C. § 2688 (1994).

[^363]: The waiver of sovereign immunity in RCRA requires federal
    facilities to be subject to state and local requirements to the same
    extent as any person is subject to such requirements. 42 U.S.C. §
    6961(a) (1994). Because RCRA's definition of "person" includes
    states, political subdivisions of states and municipalities, federal
    facilities must only comply with state and local laws to the same
    extent as governmental entities.

[^364]: 15 U.S.C. § 2688 (1994).

[^365]: *Id*.

[^366]: *Id*.

[^367]: Title X explicitly allows states to regulate lead-based paint
    and impose more stringent requirements. 15 U.S.C. § 2685(e) (1994).
    In addition, states may administer and enforce the federal
    lead-based paint training and certification program (15 U.S.C. §
    2682) and the lead hazard information pamphlet program (15 U.S.C. §
    2686). 15 U.S.C. § 2684 (1994). However, state programs to implement
    these federal programs are not discussed in this section.

[^368]: Alabama, Alaska, Colorado, Florida, Hawaii, Idaho, Kansas,
    Mississippi, Montana, Nevada, New Mexico, North Dakota, South
    Dakota, Tennessee, Utah, Washington, West Virginia and Wyoming.

[^369]: [Mass. Gen. Laws Ann.]{.smallcaps} ch. 111, §§ 89A-199B (West
    1996).

[^370]: 1971 Mass. Acts 1076-82.

[^371]: 1971 Mass. Acts 1077 (codified at [Mass. Gen. Laws
    Ann.]{.smallcaps} ch. 111, § 191 (West 1996)).

[^372]: *Id*. (codified at §192).

[^373]: *Id*. at 1078 (codified as amended at § 194).

[^374]: *Id*. at 1079 (codified as amended at § 195).

[^375]: *Id*. at 1080 (codified as amended at § 197).

[^376]: *Id*.

[^377]: Note, *Recent Development: Easing Lead Paint Laws: A Step in the
    Wrong Direction*, [18 Harv. Envtl. L. Rev. 265]{.smallcaps}, 267
    (1994).

[^378]: Telephone interview with First Lieutenant Brian W. MacDonald,
    Lead-Based Paint Officer, Hanscom Air Force Base, Massachusetts
    (Jun. 23, 1997).

[^379]: 1993 Mass. Acts 1422-1442.

[^380]: *Id*. at 1426, 1423 (codified at [Mass. Gen. Laws
    Ann.]{.smallcaps} Ch. 111, §§ 89A and 197 (West 1996).

[^381]: *Id*. § 197A.

[^382]: *Id*. § 197(d).

[^383]: *Id*. § 197(c).

[^384]: *Id*.

[^385]: *Id*. § 199. Owners with letters of compliance are not strictly
    liable for damages caused by lead poisoning. Under the Federal Tort
    Claims Act (FTCA), the Air Force may liable for damages due to the
    negligence of its employees acting within the scope of their
    employment. 28 U.S.C. 1346(b) (1994). The Air Force may not be held
    strictly liable under the FTCA. However, violating a state statute
    may be evidence of negligence.

[^386]: [Ill. Comp. Ann. Stat.]{.smallcaps} ch. 410, ¶ 45/1 - 45/17
    (Smith-Hurd 1993 and supp. 1997).

[^387]: 1973 Ill. Laws 1559-1562.

[^388]: 1991 Ill. Laws 1238-1245.

[^389]: 1995 Ill. Laws 3984-4000.

[^390]: [Ill. Comp. Ann. Stat.]{.smallcaps} ch. 410, ¶ 45/6.2
    (Smith-Hurd 1993 and supp. 1997). A high risk area is defined as "an
    area in the State determined by the Department to be high risk for
    lead exposure for children under 6 years of age. The Department
    shall consider, but not be limited to, the following factors . . .
    age and condition of housing, proximity to highway traffic or heavy
    local traffic or both, percentage of housing determined as rental or
    vacant, proximity to industry using lead, established incidence of
    elevated blood lead levels in children . . ." *Id.* at ch. 410, ¶
    45/2. The stringency of the screening requirement was reduced in
    1995. The 1991 amendment to paragraph 45/6.2 required physicians to
    screen all children for elevated blood lead levels from 6 months to
    6 years of age. 1991 Ill. Laws 1238, 1240.

[^391]: [Ill. Comp. Ann. Stat.]{.smallcaps} ch. 410, ¶ 45/7 (Smith-Hurd
    1993 and supp. 1997).

[^392]: *Id*. ¶ 45/8.

[^393]: Lead hazard is defined as "a lead bearing substance that poses
    an immediate health hazard to humans." *Id.* at ch. 410, ¶ 45/2.

[^394]: *Id*. ¶ 45/9.

[^395]: *Id*.

[^396]: *Id*.

[^397]: Mahoney, *supra* note 1, at 54. This approach has also been
    referred to as using children as "lead detectors."

[^398]: [Ill. Comp. Ann. Stat.]{.smallcaps} ch. 410, ¶ 45/14.
    (Smith-Hurd 1993 and supp. 1997).

[^399]: *Id*. ¶ 45/15.

[^400]: 28 U.S.C. § 1346(b) (1994).

[^401]: [Cal. Health & Safety Code §]{.smallcaps}§ 124125-165 (West
    1996).

[^402]: 1986 Cal. Stat. 1794-1796.

[^403]: 1989 Cal. Stat. 6491-6493.

[^404]: [Cal. Health & Safety Code §]{.smallcaps}§ 124125, 124135 (West
    1996).

[^405]: *Id*. §§ 124140, 124155, 124160.

[^406]: *Id.* § 124130.

[^407]: *Id*. § 124160.

[^408]: 28 U.S.C. § 1346(b) (1994).

[^409]: 28 U.S.C. § 2680(a) (1994) (The government may not be held
    liable under the FTCA for claims "based upon the exercise or
    performance or the failure to exercise or perform a discretionary
    function or duty on the part of a federal agency or an employee of
    the Government, whether or not the discretion involved be abused.").

[^410]: *Id*.

[^411]: 499 U.S. 315 (1991).

[^412]: *Id*. at 322-23.

[^413]: *Id*. at 322.

[^414]: *Id*. at 322-23.

[^415]: No. 95-1015, 1996 WL 343531 (6th Cir. Jun. 20, 1996).

[^416]: *Id*.

[^417]: *Id*.

[^418]: Sixth Circuit Rule 24(c) states that citation of unpublished
    dispositions is disfavored except for establishing res judicata,
    estoppel, or the law of the case.

[^419]: Angle v. United States, 931 F.Supp. 1386 (W.D. Mich. 1994)
    (Cause of action arose between March, 1989 and January, 1991).

[^420]: Berkovitz v. United States, 486 U.S. 531, 536 (1988).

[^421]: *Id*.

[^422]: Exec. Orders may eliminate the discretionary function exemption.
    The Court of Appeals for the Ninth Circuit held that Exec. Order No.
    11,258 "constitute\[d\] a specific and mandatory direction . . . to
    provide secondary treatment for waste" and thereby prevented the
    application of discretionary function exception. Starrett v. United
    States, 847 F.2d 539, 541 (9th Cir. 1988). However, no case has held
    that Exec. Order No. 12,088, discussed in Part VI of this article,
    eliminates the discretionary function exception. In the context of
    lead-based paint and the discretionary function exception, Exec.
    Order No. 12,088 is largely irrelevant due to the expansive
    lead-based paint waiver of sovereign immunity.

[^423]: 15 U.S.C. § 2688 (1994).

[^424]: 741 F.Supp. 306 (D. Mass. 1990).

[^425]: *Id*. at 309-10.

[^426]: *Id*. at 309.

[^427]: *Id*. at 319.