EPA undermines its own proposal for more protective dust-lead hazard standards

Tom Neltner, J.D.is Chemicals Policy Director

On July 2, 2018, in response to a court order, the Environmental Protection Agency (EPA) published a proposed rule[1] tightening its standards for lead in dust on floors and window sills for housing and child-occupied facilities built before 1978. The agency declined to lower the standard for lead in paint – citing insufficient information – and did not consider tightening the standards for lead in soil. While the proposed rule is a tentative step forward for lead poisoning prevention, as explained below, it will create unnecessary confusion and falls far short of what the science and the law demands. Comments are due by August 16, 2018. Pursuant to an order from the Ninth Circuit Court of Appeals, EPA must finalize the rule by July 1, 2019.

Significant benefits if dust-lead hazard standards tightened – at least $5 return on every dollar invested

EPA’s proposal tightens the dust-lead hazard standards from 40 to 10 micrograms per square foot (µg/ft2) on floors and from 250 to 100 µg/ft2 on window sills. This change is consistent with advocates’ request made in a 2009 citizen’s petition and the Department of Housing and Urban Development’s (HUD) requirements for lead hazard control grantees adopted in February 2017.

EPA’s decision largely rests on its determination that the tighter standards are achievable based on a 2015 HUD Clearance Survey Report. The report evaluated the lab results from more than 12,000 dust samples taken by the agency’s grantees after remediation and cleaning did not leave dust-lead hazards behind. This confirmation process is commonly known as “clearance.” The remediation and cleaning was prompted by a risk assessment that identified lead hazards.

The dust-lead hazard standards are critical, especially on the floor, since they are closely associated with elevated blood lead levels (EBLLs) of young children, in particular toddlers who crawl on the floor and frequently put their hands in their mouths. Lead-based paint risk assessors use these standards to identify hazards that should be remediated. Labs typically use them to define when lead levels pose a hazard in reports to customers. And property owners often use them when communicating dust-lead sampling results to residents or potential homebuyers and renters.

EPA estimated the benefits of its proposed change to be $317 million to $2.24 billion per year at a 3% discount rate. The benefits are based on reduced harm to the developing brains of children as evidenced by IQ. The costs were estimated to be $66 to $119 million; a return of almost $5 to $19 for every dollar invested.

The wide range of benefits reveals significant gaps in our lead poisoning prevention efforts. The agency assumed that dust-lead hazards would only be identified and remediated if a child was found to have an EBLL – a level greater than 5 micrograms of lead per deciliter of blood (µg/dL).[2] This is an unfortunate but fair assumption that reflects an approach of using children as canaries rather than making the investment in proactively assessing the risk before a child has an EBLL.

EPA recognized that outside of HUD-assisted housing covered by its Lead-Safe Housing Rule, no federal law required hazards to be remediated even if hazards were found. Therefore, the agency developed a state-by-state estimate of the likelihood of finding and protecting a child with an EBLL.

The agency did not consider the March 2018 study in the journal The Lancet by Lanphear et al. that showed significantly greater risk of premature death due to cardiovascular disease associated with low level exposure to lead by adults. Given the prevalence of cardiovascular disease and the significant treatment costs, if the agency had considered this information in its estimate, the net benefits would be even greater.

EPA’s bizarre decision to undermine its own proposal

The current limits of 40 µg/ft2 on floors and 250 µg/ft2 on window sills are named three times in EPA’s rules regarding lead-based paint rules: once in the lead-based paint hazard standards; a second time in determining whether a hazard is present, typically in a risk assessment; and a third time in clearance to ensure that no hazards remain after an abatement project is complete.[3] In the proposed rule, the agency only tightened the current limits for the first two situations. It left in place the current clearance levels, creating unnecessary confusion. The agency said it intended to review the clearance levels at a later date without explaining why it did not do so in this rulemaking.

It does not make sense to have a clearance level that is less protective than the associated hazard standard, but EPA has expressly created that situation. The consequences of this decision would allow the bizarre situation where a risk assessment could find a dust-lead hazard on the floor such as 30 µg/ft2 (above the proposed standard but below the current level), but allow an abatement contractor to come in, do nothing, and pass clearance because the levels would fall below the current limit of 40 µg/ft2. The agency made this decision even though the 2009 citizens’ petition expressly called for revising the limit in all three places it is used in the rule.

EPA’s decision would also affect work done pursuant to its Lead-Safe Renovation, Repair and Painting Rule (RRP). Under that rule, a property owner may choose to have the work cleared to ensure that no dust-lead hazards remain after the work is completed.[4] As with abatement, EPA would allow a renovation contractor to leave dust-lead hazards behind that would fail a risk assessment.

Despite the evidence, EPA never considered more protective floor dust-lead standards

When EPA adopted the current dust-lead standards in 2001, the agency based the analysis on the likelihood of keeping a child’s blood lead level (BLL) below 10 µg/dL. This was the level that the Centers for Disease Control and Prevention (CDC) adopted in the 1990s as the trigger for public health action.

When the advocates submitted their 2009 petition, which prompted the court order and the proposed rule, they clearly explained that their requested dust-lead hazard standards were based on the CDC level of 10 µg/dL. However, three years later, CDC lowered the level to 5 µg/dL.[5]

Despite CDC reducing what it considers as an elevated blood lead level from 10 to 5 µg/dL, EPA never assessed whether more protective dust-lead standards than those requested in 2009 were appropriate.

This logic is at odds with the fact that EPA based its economic analysis of the proposed rule on the updated CDC level,[6] and the agency has used the lower level in its analysis of a potential household action level for lead in drinking water. The inconsistency makes little sense if the agency is serious in fulfilling its responsibilities under the Toxic Substances Control Act (TSCA) to establish protective standards. At a minimum, the agency should have evaluated the appropriateness of a dust-lead hazard standard of 5 and 2.5 µg/ft2 on the floors – a simple halving of the petitioners’ request to correspond to the change in the CDC level.

The difference between a floor dust-lead hazard standard of 5 and 10 µg/ft2 is significant. According to a 2016 report by the American Academy of Pediatrics, the more protective standard would cut in half the likelihood that a child living in a home with the lower dust-lead level would exceed CDC’s current blood lead action level. A 2.5 µg/ft2 standard would cut the likelihood of an EBLL an additional half. EPA acknowledges in its economic analysis that “Estimated net benefits are higher under the more stringent regulatory options.”[7]

EPA’s misunderstanding of HUD’s 2015 Clearance Survey Report

As noted earlier, EPA largely based its decision on whether a 10 µg/ft2 dust-lead hazard standard for floors was achievable. Its analysis rested on HUD’s 2015 Clearance Survey Report showing the 85% of more than 7,200 floor dust samples could achieve the proposed standard. Yet, EPA never mentioned HUD’s finding that 72% of the samples could achieve a more protective limit of 5 µg/ft2 on the floors.

In addition, EPA failed to consider that the HUD’s grantees were using work practices designed to achieve the current standard of 40 µg/ft2. If grantees knew they had to achieve a tighter level of 5 or 10 µg/ft2, they would have demanded that contractors use more aggressive work practices and higher pass rates might have resulted. While any good contractor will strive to leave as little dust behind as possible, knowing they must meet a stricter standard would alter their choice of work practices and perhaps result in less dust creation and more thorough cleanup.

Risk from lead in paint at less than 5000 ppm

Claiming it had insufficient information, EPA declined to tighten its definition of lead-based paint from 5000 ppm to 600 ppm as requested in the 2009 citizens’ petition. The 5000 ppm limit was established by Congress in the 1970s and has not been seriously evaluated since then.

When the agency accepted the petition nine years ago, it agreed to evaluate the situation but appears to have done little serious work on it until the Ninth Circuit demanded action. EPA did not appear to have considered HUD’s 2007 American Healthy Housing Survey, which should provide a solid basis for identifying the relationship between lead in paint and lead in dust. In the preamble to the proposed rule, EPA explains both how difficult the evaluation would be and how important such a change could be. But it never addresses why it is rational to set modest work practice limits when disturbing paint with 5100 ppm of lead while allowing paint with 4900 ppm of lead in a child care center to be machine sanded without any restrictions.

Lost opportunity on soil, target housing, and elevated blood lead level

The Ninth Circuit Court of Appeals concluded that EPA has a duty under TSCA to ensure its lead-based paint hazard standards are sufficient to protect children’s health. Specifically the court said:

“This statutory framework clearly indicates that Congress did not want EPA to set initial standards and then walk away, but to engage in an ongoing process, accounting for new information, and to modify initial standards when necessary to further Congress’s intent: to prevent childhood lead poisoning and eliminate lead-based paint hazards.”[8]

Consistent with this obligation, EPA should have used the proposed rule to update other outdated provisions of its rule. Specifically, EPA should have considered:

  • Risk from lead in soil: When EPA adopted its lead-based paint hazard standards in 2001, it set limits on both dust and soil. However, in the July 2, 2018 proposed rule, EPA does not consider tightening the lead-soil hazard standards even though it acknowledges that “[i]ngestion of lead-contaminated soil and dust is a major contributor to BLLs in children”[9] and “[l]ead-contaminated dust and soil are the major pathways through which most young children are exposed to lead from lead-based paint hazards.”[10] While the 2009 citizens’ petition did not address lead in soil, EPA should have considered it.
  • Congress’ decision to expand definition of target housing: In May 2017, Congress modified the definition of target housing[11] used in EPA’s lead-based paint regulations to include zero-bedroom dwellings with a child under six years of age residing or expecting to reside there. These dwellings are essentially suites and serve as housing for many low-income families with an infant in high-rent communities. With the proposed rule, EPA had an opportunity to update its definition to match the new law but failed to consider it.
  • Outdated definition of elevated blood lead level in its current rules. In 1996, EPA promulgated its lead-based paint rules that define an EBLL to mean “an excessive absorption of lead that is a confirmed concentration of lead in whole blood of 20 µg/dl (micrograms of lead per deciliter of whole blood) for a single venous test or of 15-19 µg/dl in two consecutive tests taken 3 to 4 months apart.”[12] This definition is woefully outdated and is inconsistent with CDC recommendations and the scientific evidence from the past two decades. In the proposed rule, EPA should have mirrored HUD’s approach adopted in 2017 in its Lead-Safe Housing Rule[13] and linked the definition to CDC recommendations.

Conclusion

The Ninth Circuit Court of Appeals made clear that EPA had an obligation to update its rules when necessary to further Congress’s intent to prevent childhood lead poisoning and eliminate lead-based paint hazards. In the proposed rule, the agency acknowledged that the scientific evidence since 2001 (when it adopted the original standards) showed that lead posed a greater risk to children’s brain development than anticipated. While the tighter dust-lead hazard standards are welcome, they create unnecessary confusion and fall far short of what the law and the science demands.

[1] 83 Federal Register 30889, July 2, 2018.

[2] EPA’s economic analysis for the proposed rule defines EBLL as an “elevated blood lead level” (page vi) without grounding it in a number of micrograms of lead per deciliter of lead. However, from the analysis, especially Figure 4, the agency uses a numerical EBLL is 5 µg/dL.

[3] The three uses of the numerical levels are at 40 CFR 745.65(b) (dust-lead hazard standards), 40 CFR 745.227(e)(8)(viii) (clearance after abatement) and 40 CFR 745.227(h)(3)(i) (hazard determination).

[4] 40 CFR 745.85(c).

[5] Given CDC’s conclusion that it could find no safe level of lead in the blood of children, the agency revised its approach as the blood lead level of the most exposed 2.5% of young children and renamed it the “reference level.” In 2012, the agency committed to updating the number every four years. It is two years overdue.

[6] EPA’s economic analysis, Figure 4.

[7] EPA’s economic analysis, page ES-6.

[8] See page 10-11 of the court’s decision.

[9] 83 Federal Register 30891.

[10] EPA’s economic analysis, page 1-1.

[11] See Section 237(c) of the H.R. 244, Consolidated Appropriations Act, 2017 at Public Law 115–31, 131 Stat. 789 amending TSCA Section 401, 15 U.S.C. §2681. Note that the Government Printing Office website does not yet reflect the change. We provide the link to Cornel Law School’s Legal Information Institute which includes the revision.

[12] 40 CFR 745.223.

[13] 82 Federal Register 4151. January 13, 2017 amending 24 CFR 35.110.

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