The opinion of the court was delivered by: GESELL
This is a class action against officials of the Department of Housing and Urban Development ("HUD") challenging certain aspects of HUD's implementation of the Lead Based Paint Poisoning Prevention Act ("LPPPA"), 42 U.S.C. § 4801 et seq. (1976). The class consists of all tenants or residents of HUD-associated public housing in the District of Columbia who are, or who have, young children who have experienced or who may in the future experience lead poisoning as a result of the presence of lead-based paint in their dwelling units. Plaintiffs assert that HUD regulations issued pursuant to the LPPPA, see 24 C.F.R. Part 35 (1981), do not impose sufficiently stringent hazard elimination requirements on local public housing authorities, including the National Capitol Housing Authority ("NCHA"), the manager of HUD-associated public housing in the District of Columbia. First, plaintiffs claim the regulations are invalid because they do not define "tight" lead-based paint, i.e., paint that is not cracking, scaling, peeling or chipping, as an immediate hazard requiring immediate removal. Second, these regulations assertedly violate the LPPPA because they fail to require that residents of public housing constructed after 1950 receive written notification of the hazards of lead-based paint. In addition, plaintiffs claim that HUD has illegally failed to monitor NCHA's compliance with federal lead-based paint elimination requirements and to impose appropriate sanctions for NCHA's noncompliance.
Paint containing significant quantities of lead was commonly used to cover the interior surfaces of residential structures prior to approximately 1950. The presence of lead-based paint in older housing units presents a substantial health hazard, particularly to children. The extensive administrative record establishes that by ingesting lead-based paint, either by eating paint chips or through oral contact with surfaces covered by lead-based paint, children can become seriously ill and even die. The LPPPA, P.L. 91-695, as substantially amended in 1973 by P.L. 93-151, establishes a comprehensive federal effort to eliminate this significant health problem. This suit focuses solely on the implementation of the LPPPA as it affects federally associated public housing units in the District of Columbia.
The initial question is whether plaintiffs have standing to bring this action. The defendants contend that the alleged injuries to the class from exposure to lead-based paint are not attributable to defendants' actions but instead result from violations of federal and state law by the NCHA. They also make the related argument that plaintiffs lack standing because their alleged injuries are not redressable by this suit. The Court finds that both of these arguments lack merit and that plaintiffs have standing.
Plaintiffs' alleged exposure "to the risk of lead poisoning as a result of the continued presence of lead-based paint in D.C. public housing" clearly constitutes a sufficient claim of injury in fact. Moreover, this injury can fairly be "traced" to the challenged actions of defendants. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74, 98 S. Ct. 2620, 2630, 57 L. Ed. 2d 595 (1978). Insofar as the NCHA would be required to undertake more extensive hazard elimination efforts but for HUD's allegedly illegal actions the asserted injury to the class is causally linked to HUD's actions. By the same token, because a ruling in favor of the class would lead to promulgation of more stringent hazard elimination requirements the injury suffered by the class is obviously capable of being redressed by this litigation.
II. Elimination of Immediate Hazards
Plaintiffs' first substantive contention is that defendants have violated the mandate of the LPPPA by failing to promulgate regulations which define "tight" lead-based paint as a hazard requiring immediate elimination in federally assisted public housing units.
Section 302 of the LPPPA provides, in relevant part:
The Secretary of Housing and Urban Development ... shall establish procedures 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. Such procedures shall ... as a minimum provide for (1) appropriate measures to eliminate as far as practicable immediate hazards due to the presence of paint which may contain lead and to which children may be exposed.... 42 U.S.C. § 4822 (1976).
The regulations promulgated by HUD pursuant to the LPPPA provide that "all defective paint conditions shall be assumed to be immediate hazards." 24 C.F.R. § 35.24(a) (1981). In turn, a "defective paint condition" is defined as paint on "applicable surfaces which is cracking, scaling, chipping, peeling or loose." 24 C.F.R. § 35.3(i) (1981). The regulations require that all immediate hazards be treated by thoroughly cleaning the painted surface and repainting it with two coats of non-leaded paint. 24 C.F.R. § 35.24(b)(3)(i) (1981). Lead-based paint that is not defective, i.e., paint that is not cracking, scaling, chipping, peeling, or loose, need not be treated in this fashion.
Plaintiffs assert that this definition of "immediate hazards" is inconsistent with the statute, and, assuming that the regulations are within the scope of the statute, the decision to require the removal of only cracking, scaling, chipping, peeling or loose paint is arbitrary and capricious. Plaintiffs further assert that the regulations are invalid because they do not require the elimination "as far as practicable" of immediate hazards associated with lead-based paint.
For regulations to be valid they must be consistent with the statute under which they were promulgated. See United States v. Larionoff, 431 U.S. 864, 873, 97 S. Ct. 2150, 2156, 53 L. Ed. 2d 48 (1977); State Farm Mutual Automobile Insurance Co. v. Department of Transportation, 220 U.S. App. D.C. 170, 680 F.2d 206 at 222 (D.C.Cir.1982). The Court finds that Congress specifically rejected the narrow definition of "immediate hazards" adopted by HUD in its regulations in favor of a broader definition intended to encompass "tight" paint at least under some conditions. Accordingly, the Court must declare this portion of the regulations invalid.
Section 302 was added to the LPPPA by the Lead Based Paint Poisoning Prevention Act Amendments of 1973, P.L. 93-151. A version of this section was first considered by Congress during the 92nd Congress in the form of a floor amendment offered by then-Senator Schweiker to S. 3080. 118 Cong.Rec. 20852 (1972). In relevant part, Senator Schweiker's amendment read as follows:
The Secretary of Housing and Urban Development ... shall establish procedures to minimize 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. Such procedures shall ... provide for (1) appropriate measures to eliminate, wherever feasible, immediate hazards due to the presence of cracking, scaling, peeling or loose paint which may contain lead and to which children may be exposed.... Id. (emphasis added).
In the following Congress, Senator Kennedy reintroduced proposed amendments to the LPPPA, incorporating the amendment offered by Senator Schweiker and approved by the Senate the previous year. 119 Cong.Rec. 2419 (1973). The bill was referred to the Senate Committee on Labor and Public Welfare which on April 27, 1973, reported it with amendments and the recommendation that it be passed. See S.Rep.93-130, 93d Cong., 1st Sess. (1973), U.S.Code Cong. & Admin.News 1973, p. 2403. As reported by the committee section 302 read as it appears in the statute as enacted. See S. 607, 93d Cong., 1st Sess. § 4 (1973). Although there is no explicit statement in either the committee report or the floor debates explaining this change in language, it is apparent that the committee revised the bill in response to a decision of the Federal District Court in the Eastern District of Pennsylvania issued on March 12, 1973. City-Wide Coalition Against Childhood Lead Paint Poisoning v. Philadelphia Housing Authority, 356 F. Supp. 123 (E.D.Penn.1973). In that case Judge Van Artsdalen enjoined HUD from selling HUD-owned residential structures without first bringing the buildings into conformity with the regulations of the Department of Public Health of the City of Philadelphia. Those regulations required the complete removal of all lead paint from surfaces accessible to children. Id. at 126. By contrast, HUD regulations at the time only required scraping and repairing of "hazardous conditions" defined as "crackling (sic), scaling, peeling, and loose lead-based paint on applicable surfaces." 37 Fed.Reg. 22732 (October 21, 1972). The Court held that the local regulations were not preempted by HUD's regulations and that HUD was required to "comply with the City regulations to the same extent as is required of all other homeowners." Id. at 130. The Court, based on specific evidentiary findings, determined that children may be poisoned "even where the lead-based paint has been painted over and rendered tight in accordance with HUD regulations," id. at 126, and that HUD's failure to comply with the more stringent local regulations would create a "grave hazard." Id. at 127.
That Congress acted in response to the Court's specific rejection of HUD's limited definition of hazardous paint conditions is demonstrated by the remarks of Senator Kennedy, prime sponsor of the legislation, on the Senate floor after the ...