EPA Lead Hazard Standards Challenge
Jonathan J. Smith
Hi everyone,
Attached is a brief we filed yesterday on behalf of groups across the country challenging EPA’s insufficiently protective lead hazard standards, if it’s of interest.
As you may know, last summer EPA updated just one of these standards – the standard for lead in interior dust – but lowered it to a level that would still result in a 23.8% probability that a child develop a BLL above 5 μg/dL, or up to a 32% probability that a child lose 2 IQ points from lead exposure. And EPA did nothing to the decades-old standards for safe levels of lead in paint or soil, or the standards that determine what level of lead in dust is acceptable after abatement.
The lawsuit asks the court to require EPA to lower all of these standards to health-protective levels.
Feel free to reach out if you have questions.
Best,
Jonathan
__________________________________
Jonathan J. Smith (he/him/his)
Staff Attorney
Earthjustice Northeast Office
48 Wall Street, 15th Floor (note new floor)
New York, NY 10005
T: 212-845-7379 (direct)
F: 212-918-1556
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Erycka Glenn
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Emily A. Benfer
Overwhelming scientific evidence demonstrates that no amount of lead exposure is safe and even the lowest levels of exposure result in long-term poor health consequences.[1] The Environmental Protection Agency (“EPA”) has concluded that effects of lead poisoning are “devastating and irreversible.”[2] To prevent lead poisoning, it is critical that lead hazard standards are based in science and stringent enough to be health-protective. The EPA’s rulemaking in response to this Court’s mandamus order, Review of the Dust-Lead Hazard Standards and the Definition of Lead-Based Paint, EPA–HQ–OPPT–2018–0166, not only contravenes the accepted science; it also fails to comply with the spirit of the order. The EPA’s statutory duties under the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2681, and the Court’s order make clear that the agency must “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.”[3]
The
EPA will fail its obligation to protect public health if the challenged rule is
not further amended. The lead hazard and clearance standards for dust-lead and
soil-lead in EPA’s current rule are insufficient, based on decades-old science,
and should be lowered to improve health outcomes. Lower hazard standards are
both health-protective and feasible.
EPA’s justification for
failing to revise the definition of lead-based paint is unfounded. EPA
purports to need additional information on the association between paint and
dust to revise the definition of lead-based paint. However, it is well
documented that the majority of dust-lead hazards are a result of deteriorating
lead paint and high friction surfaces.[4]
EPA also claimed a lack of knowledge about technological feasibility. Yet,
technology has advanced significantly since the rule was first promulgated, as
evidenced by the numerous jurisdictions already deploying modern technology to
detect lead in paint at levels well below the EPA’s current definition.
EPA failed to revise the clearance standards that are used to determine that a house is safe after abatement. For the rule to be effective, clearance standards must be revised so they are at least more protective than lead hazard standards. By setting clearance standards significantly higher than lead hazard standards, EPA created a loophole that allows homes with significant lead hazards to pass clearance testing. Given the substantial delay in revising lead hazard standards thus far, there is no reason to continue undue delay and risk further harm to children and occupants. Because primary prevention is the only public health and pediatric-supported approach to lead poisoning, clearance standards should be set as the lowest detectable level of lead content, if not to zero.
Without further amendment, the current rule, which is based on antiquated and unprotective standards, will result in the preventable lead poisoning and permanent brain damage of children throughout the country. While no socioeconomic group is free from the threat of lead poisoning, statistically, this rule will have a disproportionate effect on low-income and minority children. State and federal lead poisoning prevention programs, as well as the American people, trust the EPA to adopt lead standards that reflect current science and are protective of health.
[1] See, e.g., AAP Policy Statement, at 1; CDC, Blood Lead Levels in Children, https://www.cdc.gov/nceh/lead/prevention/blood-lead-levels.htm (last visited Nov. 23, 2019); National Institute of Environmental Health Sciences, Lead, https://www.niehs.nih.gov/health/topics/agents/lead/index.cfm (last visited Nov. 9, 2019); Joel T. Nigg, Low Blood Lead Levels Associated with Clinically Diagnosed Attention-Deficit/Hyperactivity Disorder and Mediated by Weak Cognitive Control, 63 Biol Psychiatry 325–31 (2008).
[2] EPA, What You Need to Know About Lead Poisoning (2014), https://www.epa.gov/sites/production/files/2014-05/documents/what_you_need_to_know_about_lead_poisoning.pdf.
[3] A Community Voice v. EPA, 878 F.3d 779, 784 (9th Cir. 2017).