Weighing In on EPA’s Lead Proposal

Public comments on the EPA’s proposed update to the dust-lead hazard standard urge the agency to adopt a more protective rule.

August 16 was the close of the public comment period on the Environmental Protection Agency’s (EPA) proposal to update the dust-lead hazard standards — a proposal that has been nearly a decade in the making and came about only thanks to the litigation brought by eight public interest groups represented by Earthjustice.

In 2009, the EPA granted a citizens’ petition that asked the agency to update the standards that determine what constitutes hazardous levels of lead in household dust — a standard that had previously been set in 2001 and was outdated and extremely unprotective. Seven years later, with no rulemaking in sight, Earthjustice filed suit on behalf of A Community Voice, California Communities Against Toxics, Healthy Homes Collaborative, New Jersey Citizen Action, New York City Coalition to End Lead Poisoning, Sierra Club, United Parents Against Lead National, and WE ACT for Environmental Justice, asking a federal court of appeals to order EPA to act.

In a celebrated victory, the U.S. Court of Appeals for the Ninth Circuit found that the EPA had unreasonably delayed in updating the lead-based paint hazard standards and ordered the agency to finalize new standards within about a year and a half.

In July, in compliance with the court’s order, the EPA issued its proposal to revise the standards.

While the proposal is welcome as a first step in the agency’s compliance with the court’s order, the comments submitted by Earthjustice on behalf of the petitioners in the lawsuit explained the many significant flaws in the agency’s proposal.

For instance, the EPA proposes to lower the dust-lead hazard standards from 40 μg/ft2 on floors and 250 μg/ft2 on windows to 10 μg/ft2 and 100 μg/ft2 respectively. These levels, although more protective than the current obsolete standards, would still leave a 23.8 percent probability of children living in homes that meet this standard developing blood lead levels greater than the reference level of 5 μg/dL set by the Centers for Disease Control and Prevention as the level requiring public health action. Put another way, one in four children living in homes that have been found to have no dust-lead hazard according to these proposed standards would still suffer lead exposure associated with significant harmful impacts. The petitioners urged the EPA to instead revise the dust-lead hazard standards to 5 μg/ft2 on floors and 40μg/ft2 on window sills — more stringent levels that would protect more children and are achievable using current abatement practices.

In another example of the inadequacy of the proposed rule, the EPA proposes to revise the dust-lead hazard standards but does not propose to revise the clearance levels, which are “values that indicate the maximum amount of lead permitted in dust on a surface following completion of an abatement activity.” 40 C.F.R. § 745.223. Currently, the EPA’s regulations establish clearance levels that are the same as the current dust-lead hazard standards: 40 μg/ft2 for floors and 250 μg/ft2 for interior window sills. See id. § 745.227(e)(8)(viii). If EPA revises the dust-lead hazard standards to its proposed 10 μg/ft2 on floors and 100 μg/ft2 on window sills without simultaneously revising the clearance levels to meet the dust-lead hazard standards, that means risk assessors may find that a home contains a dust-lead hazard — that is, dust containing more lead than the proposed 10 μg/ft2 on floors and 100 μg/ft2 on window sills — but abatement of that hazard need only lower the lead in dust in that home to 40 μg/ft2 on floors and 250 μg/ft2 on window sills.

This clearly fails to protect the families living in those homes and largely eviscerates the impact of the EPA’s revisions to the hazard standards. Petitioners therefore urged the EPA to revise the clearance levels for dust-lead in conjunction with the dust-lead hazard standards.

The petitioners’ comments also urged the EPA to, among other things:

  • revise the definition of lead-based paint to mean paint containing lead in excess of 0.06 percent, and potentially as low as 0.009 percent;
  • revise the soil lead hazard standards to reflect at least the current blood lead reference level set by CDC;
  • update the definition of “elevated blood lead level” to similarly reflect CDC’s blood lead reference level;
  • establish a six-month implementation period, rather than the two years proposed

Seventy-three other individuals and organizations, including Environmental Defense Fund, WE ACT, National Disability Rights Network, and NRDC, submitted similar comments, also authored by Earthjustice. In addition, 13,456 individuals responded to an Earthjustice action alert and sent in their own comments to the EPA, urging the agency to make these same revisions.

Here are some of the stories Earthjustice supporters shared in their comments to the EPA:

“Growing up in the 1960s before our knowledge of the dangers of lead, I was exposed to many products containing lead that led to health problems that have plagued me my whole life. Why must we keep fighting for what we have won. Please quit playing stupid! It is our health at stake!” — V.N., Lone Pine, CA

“Having one child with an episode of high lead levels, I know the fear, worry & helplessness parents feel when confronted with an alternate, worse future for your kids. Luckily for us, it’s was temporary situation. Some aren’t so lucky.” — D.R., Chapel Hill, NC

“Health care becomes more affordable when fewer people become sick. Keep the people healthy by not exposing them to toxic substances!” — K.M., Florence, OR

“I grew up on the west side of Chicago in the 1950’s. We did not know it at the time, but lead paint was everywhere, peeling off our windowsills and walls. The undiagnosed damage to children will never be known.” — C.G., Savanna, IL

“I have great-nephews whose health will be negatively affected by the current regulations on lead in paints and other products used in the home.” — M.L., La Grange, KY

“I have known since at least 1971 that lead was a great danger to the children of our nation. The man for whom I worked at a social service agency had earlier done a comprehensive study as part of his post-college education on the terrible effects of lead, especially in homes. As a grandmother, I can’t believe this problem hasn’t been taken more seriously.” — M.M., High Falls, NY

More actions need your voice:

Every day millions of Americans drink water contaminated with a toxic class of chemicals known as PFAS. Tell EPA to stop approving these dangerous chemicals and begin limiting their use immediately.

Your comment matters. Public comments can encourage politicians to make the right decisions, especially at the state and local level. Elected officials pay attention when they see that we are also paying attention. Laws such as National Environmental Policy Act and the Administrative Procedure Act require government agencies to allow the public to comment before adopting or changing regulations. Politicians may try to gut or revoke environmental protections, but they can’t credibly claim that no one cares after millions of Americans call or write in to say otherwise.

Hannah was a staff attorney in the Northeast office. Her litigation work included strengthening health protections from lead, defending the nation's first National River and challenging a waste incinerator project in Puerto Rico.

Established in 2008, Earthjustice’s Northeast Office, located in New York City, is at the forefront of issues at the intersection of energy, environmental health, and social justice.

Earthjustice is partnering with community groups to fight for just and protective EPA standards for lead in the dust and paint in our homes.
Earthjustice is partnering with community groups to fight for just and protective EPA standards for lead in the dust and paint in our homes. (Dedi Grigoroiu/Shutterstock)