A consequential day in the effort to prevent lead poisoning

Tom Neltner, J.D., is Chemicals Policy Director

Lead poisoning prevention advocates should mark May 14, 2021 as a consequential day in our collective efforts to protect public health. Last week, two decisions and a preliminary report were issued that lay a solid foundation for further progress. When translated into action, the decisions and report should result in significantly reduced lead exposure for children. These developments were:

• A court ruling on lead-based paint hazard standards: The U.S. Court of Appeals for the Ninth Circuit directed the Environmental Protection Agency (EPA) to reconsider – and most likely tighten – the agency’s 2019 revisions to its lead-based paint (LBP) hazard standard that define the levels of lead in paint, dust, and soil that are dangerous. The current standards remain in place until EPA revises them to comply with the law and the court’s order. This decision has significant implications for home renovations, real estate disclosures, lead cleanups, and homeowner testing. This welcome step toward stronger protections for children was only possible thanks to Earthjustice and the petitioners that challenged EPA’s flawed rule.
• Lowered federal elevated blood lead level: The Centers for Disease Control and Prevention’s (CDC) Lead Exposure and Prevention Advisory Committee (LEPAC) unanimously recommended that the agency lower its blood lead reference level (aka “elevated blood lead level” or EBLL) from 5 micrograms per deciliter (µg/dL) of lead in young children’s blood to 3.5 µg/dL. CDC appears ready to act on the recommendation. When it does, the decision will have significant implications for state and local health and housing agencies reacting to blood lead testing results for at-risk children and for action levels for lead in food.
• New national survey of lead-based paint hazards: The U.S. Department of Housing and Urban Development (HUD) presented to LEPAC the preliminary results of its American Healthy Homes Survey II (AHHS-II), a long-overdue update to its 2006 survey. This survey of lead-based paint hazards serves as the basis for federal agencies to set priorities, assess impacts of policy decisions, and track progress. The results of samples taken in 2018-19 shows modest but significant progress across many demographics including African American households, government-supported households, and households in poverty – most likely an indication that the federal investment to fix low-income housing is paying off.

These actions put added urgency to President Biden’s America Jobs Plan that includes $45 billion in federal funding to fully replace the nation’s 9 million lead service lines and $213 billion for housing – both critical aspects of our nation’s infrastructure that need a lead poisoning prevention-oriented upgrade. We encourage Congress to provide at least $19 billion as part of an investment in housing to reduce lead-based paint hazards in pre-1940 housing, especially by replacing old, single-pane windows to get the combined benefits of safer and more energy efficient homes.

Lead-based paint hazard standard – a 12-year saga and a path forward

Getting EPA to update its 2001 “Identification of Dangerous Levels of Lead” rule that defines LBP hazards has been a twelve-year journey that started in 2009 with a petition I helped write when I was at the National Center for Healthy Housing. The court’s decision last week clarifies key provisions of Congress’s 1992 mandate in Title IV of the Toxics Substances Control Act (TSCA) and gives the agency the guidance it needs to fix the rule. While the court left the current rule in place and did not give the agency a deadline for action, we would expect the agency to add this rulemaking to the many from the Trump Administration that must be fixed and will take a couple of years to complete.

Here are my key takeaways from the decision:

• Current standards do not protect children: The court concluded that the “current dust-lead hazard standards, lead-based paint definition, and soil-lead hazard standards do not identify all levels of lead that lead to adverse human health effects and therefore violate the TSCA.” EPA “did not try to set [the dust-lead hazard standards] at the threshold level that causes harm to human health, but also took into account outside factors bearing on implementation, such as current testing capabilities.”
• Economic or market factors cannot be a factor in setting hazard levels: The court found that “Congress made no mention of economic or market factors in any of its definitional provisions of sources of harm.” Therefore, EPA must not consider those factors in setting the LBP hazard standards but may do so in its rules implementing those standards. This approach is consistent with other laws such as the Clean Air Act’s primary ambient air quality standards.
• The “scientific uncertainty” excuse works for only so long: Regarding EPA’s decision not to update the soil-lead hazard standards and the LBP definition, the court concluded that “EPA’s continued reliance on inadequate information for approximately two decades is arbitrary and capricious and in violation of its statutory obligation of scientific currency.” It stated that an “agency may not continue to rely on uncertainty for regulatory action or inaction that evades statutory duties.”
• Agency has an affirmative duty to update standards: The court found that EPA’s “failure to update the soil-lead hazard standards is unjustified in the face of the now undisputed evidence that there is no safe level of lead exposure.” It also said the “statutory authority to amend, and the EPA’s statutory duty to promulgate hazard standards sufficient to protect human health, have remained constant. It is not the public’s duty, nor is it the court’s duty, to notify the EPA when it should do its job.”

We encourage Administrator Regan’s EPA to focus on revising the rules to protect children from lead-based paint hazards.

Elevated blood lead level – tightened by 30%

While EPA focuses on limiting lead in the environment (including the built environment) that could expose children, CDC is focused directly on children – and for lead, we measure progress based on the amount of lead in blood. In 2012, CDC acknowledged that its “level of concern” terminology was a problem since there was no safe level of lead in children’s blood – any level is concerning. Therefore, it switched to a non-descript “blood lead reference value” to “identify children with blood lead levels that are much higher than most children’s levels” and set the value at 5 micrograms per deciliter (µg/dL). The value is based on the U.S. population of children ages 1-5 years who are in the highest 2.5% of children – about 500,000 children – when tested for lead in their blood. The value is commonly known as an EBLL.

In 2012, CDC planned to update the value every four years based on the latest results of biomonitoring in the National Health and Nutrition Examination Survey (NHANES). In late 2016, a subcommittee of CDC’s Board of Scientific Counselors indicated that sufficient progress had been made in reducing the EBLL that the value be tightened to 3.5 µg/dL but expressed concern whether those levels could be reliably measured using commonly available technologies.

Also in 2016, Congress directed CDC to establish LEPAC to advise the agency on lead-related issues. In April 2020, LEPAC held its first meeting and discussed the ongoing EBLL issue – which had not been resolved in the intervening four years. On May 14, 2021, the advisory committee unanimously recommended that CDC lower the EBLL to 3.5 µg/dL. CDC indicated it supported the recommendation and committed to developing a communications plan as part of the agency’s rollout of a decision.

We urge CDC to move quickly due to the decision’s implications for the following topics:

• Federally-assisted housing: As part of HUD’s rules to prevent lead-based paint hazards (which are based on EPA’s standards discussed above), local housing agencies take action when they learn that a child in their federally subsidized housing exceeds the EBLL. They must conduct an environmental investigation and control identified hazards not just for the child’s residence but for other units with children. When CDC tightens the EBLL, HUD plans to revise its rules after notice and opportunity to comment. Therefore, CDC’s change will trigger important actions to identify and fix hazards not addressed previously.
• Lead in food: In 2018, the Food and Drug Administration (FDA) established an “Interim Reference Level” (IRL) of lead in children’s diet of 3 µg/day based on CDC’s EBLL. The level essentially serves as the maximum allowed daily intake of lead for children. In its “Closer to Zero” plan released in April 2021, FDA committed to updating its IRL and setting action levels for children’s food based on the IRL within a year. We expect that FDA would tighten its IRL to 2 µg/day based on CDC’s action, effectively tightening limits of lead in food.
• Blood lead monitoring and communications: Pediatricians as well as state and local health departments use CDC’s EBLL in their communications with parents and managing cases of children with EBLLs. Effective communications to them about the tighter EBLL will improve adoption and their use to reduce children’s exposure. It will also shape state and local policies. In addition, CDC uses the EBLL to track progress in its Healthy People 2030.

National survey of lead-based paint hazards – progress but much more to do

In 2005-06, HUD conducted the American Healthy Homes Survey (AHHS) of a nationally representative sample of 1,131 homes and evaluated them for LBP, lead hazards, allergens, pesticides, and mold. This survey serves as the basis for federal agencies to set priorities, assess impacts of policy decisions, and track progress regarding healthy homes efforts. When we talk about 37 million homes having LBP, 23 million having LBP hazards (using EPA’s standard at the time) or 3.5 million homes with children having LBP hazards, the estimates are based on AHHS.

In 2018-19, HUD updated the survey and designated it AHHS II. The agency added lead in water, lead service lines, and formaldehyde in air to the hazards to be evaluated. It included 203 homes from AHHS I and added 500 more, obtaining a nationally representative sample of homes where children may live. At last week’s LEPAC meeting, HUD presented the preliminary results for LBP-related issues.

Overall, HUD reported that significant progress had been over the 12 years between the two surveys but much more needs to be done. Here are my takeaways from the presentation:

• Dust-lead loadings – progress but challenges ahead: The median level on floors dropped 46% from 0.57 to 0.31 µg/ft² but the 90^th percentile stayed steady at 4.9 µg/ft². The 90^th percentile is well under the current hazard standard is 10 µg/ft² but is only just below the 5 µg/ft², we anticipate EPA may adopt pursuant to the court’s order. About 7.6 million homes built before 1940 have dust-lead hazards compared to 5 million for homes built from 1940-50, 2.4 million for those built from 1960-77 and 1.5 million for post-1977 homes. Most of the pre-1940 homes with floor dust hazards also have window sill dust hazards, suggesting that window replacement in those homes must be a top priority.
• Soil-lead concentrations – progress overall: Mean concentrations on bare soil dropped 46%. The number of homes with bare soil at the current hazard level of 400 ppm dropped from 10.6 to 6.6 million (38%). If EPA were to cut the hazard level in half, comparing the numbers of homes above that level in the two surveys would show that the numbers would have dropped from 14.4 to 10.4 million, although the drop would not be statistically significant.
• One or more LBP hazards: The number of homes with one or more LBP hazards under the current EPA rule dropped only 4% from 30.2 million to 29 million and disparities for low income, government-supported and African American households narrowed.
• Significant LPB hazards: Almost 80% of homes built before 1940 had significant LBP hazards. The rate dropped to about 50% for homes built between 1940-59, 17% for homes built from 1960-77 and about 5% post-1977 homes. A single-family home was twice as likely as multifamily to have significant LBP hazards.

HUD has not yet obtained the results for homes with lead service lines and lead in drinking water. Hopefully those will be available soon.

Next steps

Four agencies – CDC, EPA, FDA, and HUD – have critical roles in protecting children from lead exposure. Effective health-based standards begin with strong data, which we now have thanks to HUD’s AHHS II, and sufficient guidance to make decisions, which EPA has because of the Ninth Circuit Court of Appeals decision and CDC has from LEPAC. FDA will then need act on CDC’s revisions. We expect that CDC and EPA move quickly to recover from the delays and half measures of the prior Administration.