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In 2009, EPA committed to fix its rule identifying dangerous levels of lead. The evidence since then has only gotten more compelling. EPA needs to fulfill its commitment and revise the rule consistent with the recommendations of its own Science Advisory Board.
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Tom Neltner, J.D., is Chemicals Policy Director.
In 2005, then-Senator Barack Obama, supported by then-Senator Hillary Clinton, forced the Bush administration to issue a long-overdue rule to ensure contractors used lead-safe work practices when conducting renovations, repairs, and painting work at homes and child-occupied facilities. So when Senator Obama became President Obama, there was tremendous promise for advances in lead poisoning prevention.
By the second half of 2009, it appeared that promise was turning into reality. Under President Obama’s leadership, the Environmental Protection Agency (EPA) made lead poisoning prevention a priority and undertook a series of important commitments to protect children. Despite that initial success, many of those prevention efforts were foundering by late 2010.
One of the several critical commitments Obama’s EPA made was to revise the agency’s outdated 2001 “Identification of Dangerous Levels of Lead” Rule that set standards for health-based lead-based paint hazards in homes and childcare centers. The standards are an essential building block for lead poisoning prevention because they define when the risk posed by lead in paint, in dust, and in soil is so high that action is needed to reduce those hazards. The uses include:
- EPA and state-certified risk assessors use the standards to advise property owners and families;
- Do-it-yourself test kits reference them when telling families whether or not they have a problem;
- Health departments and housing code officials often rely on these standards for citations;
- The Department of Housing and Urban Development (HUD) references the standards in its lead-safe housing rule to protect residents of federally subsidized housing; and
- EPA and state environmental agencies use them to guide cleanup of contamination.
Since 2011, EPA has taken no apparent action to follow through on its commitment. We will explore the status of the other commitments in other blogs, but for now let’s consider what happened on the lead-based paint hazards rule.
1999 to 2001: Establishing the hazard standards
The lead-based paint hazard standards rule is one of many that Congress mandated in the Residential Lead-based Paint Hazards Reduction Act of 1992, a comprehensive program to protect children from paint. Part of the bill, which included establishing Title IV the Toxic Substance Chemical Act, directed EPA to issue a hazards standard rule by 1994 (15 U.S.C. § 2683). It wasn’t until 1999 that the agency released a proposed rule. And it was another two years before the EPA finalized the proposal and promulgated a rule on January 5, 2001 in the last days of the Clinton Administration (40 CFR § 745.61 to 65). The Bush Administration had the option to reverse the decision but declined to act
The rule established three types of hazard standards: paint-lead hazard, dust-lead hazard, and soil-lead hazard. The dust-lead hazard standard established 40 micrograms of lead per square foot (µg/ft2) of the floor of homes and child-occupied facilities as a hazard that must be eliminated. This is equivalent to one gram – the same amount of sugar in a packet we add to our tea – spread evenly over about 1/2 of a football field. The agency set this level because it would “result in a 1 to 5 percent probability of an individual child’s exceeding a blood lead level of 10 µg/dL”. The definition of elevated blood lead level in 2001, when the rule was promulgated, was 10 µg/dL; it was reduced to 5 µg/dL in 2012. For interior window sills, the level was 250 µg/ft2. For bare soil, a hazard was defined as levels over 400 parts per million (ppm) in the play area and 1,200 ppm in the rest of the yard.
2007 to 2009: Standards found to be “insufficiently protective of children’s health”
In 2007, one of EPA’s scientific advisory committees told the agency that the dust-lead hazard standard was “insufficiently protective of children’s health, as indicated by recent epidemiological studies.” The National Center for Healthy Housing (NCHH) reevaluated the available data and concluded that the risk of an elevated blood level was 18% not less than 5% as EPA claimed in 2001.
Two years later, 12 groups, including Sierra Club, NCHH, United Parents Against Lead, Childhood Lead Action Project, Improving Kids Environment, Healthy Homes Collaborative, Environmental Health Watch, Omaha Healthy Kids Alliance, New Jersey Citizen Action, and others petitioned EPA to revise the rule. They asked EPA to:
- Reduce the lead in dust standard from 40 to 10 µg/ft2 on floors and from 250 to 100 µg/ft2 on interior window sills; and
- Change the definition of lead-based paint from more than 5,000 ppm lead to 600 ppm, the maximum allowable level of lead in paint after 1978.
On October 22, 2009, EPA granted the request and said it would coordinate with HUD to revise the definition of lead-based paint because of the agencies’ shared responsibility. EPA stated that it did not commit to a specific rulemaking outcome or a certain date to promulgate a final rule.
2010 to 2011: Affirmation from agency science advisors
EPA sought feedback from its Science Advisory Board (SAB) on a proposed approach to revise the dust-lead hazard standard in 2010. Later that year, a panel convened by the SAB to consider the issue, found the approach “to be well conceived, clearly described, logical, and reasonable.” It commended EPA for initiating a revision to the standard. In 2011, the full SAB issued its final report supporting the agency’s overall approach and made recommendations to improve the modeling.
No activity for more than 5 years
Since the SAB report in 2011 affirming the approach, EPA appears to have made no further progress towards updating these standards. With its limited resources, EPA chose to focus on one of its other commitments made in late 2009: implementing an agreement the agency made to settle a lawsuit. Under the terms of the settlement, EPA agreed to reconsider flaws in its renovation, repair and painting rule, including extending the rule to include public and commercial buildings and not just housing and child-occupied facilities. Expanding lead poisoning protections to these sites is necessary, but it should not be an either-or proposition. It should not come at the expense of action on other commitments to protect children from lead.
What’s next?
With lead poisoning prevention back in the news, the demand for updated lead standards is all the more urgent. Families are asking about lead more than ever. In February 2016, 24 groups led by Loyola University and the Shriver Center petitioned HUD to update its lead-safe-housing rule. Within a month, HUD moved forward on a proposal to fix the rule. In March 2016, Senators Dick Durbin (D-IL), Robert Menendez (D-NJ) and Representatives Keith Ellison (D-MN) and Mike Quigley (D-IL) introduced legislation directing EPA to revise rule. In addition, EPA has been asked by an National Drinking Water Advisory Council to issue a health-based action level for lead in drinking water that is similar to the lead-based paint hazard standards.
The lead-based paint hazard standards rule is an essential part of the federal lead poisoning prevention program. In the six years since EPA agreed to fix the rule, the evidence of the harm caused by lead has become even more compelling. The agency needs to immediately revise its lead-based paint hazards consistent with the latest science and the recommendations of its own Science Advisory Board.