Environmental advocates are bracing for potentially “catastrophic” changes to U.S. Environmental Protection Agency regulations that protect children from dangerous lead exposure across the country. Advocates say if the agency moves forward with its plans to repeal or replace programs that regulate hazardous lead levels, lead poisoning prevention efforts would be set back decades.
The advocates plan to voice their concerns at a May 1 public meeting that the EPA is hosting in Washington D.C. to seek input on regulations “to make them less burdensome,” according to an email the EPA sent last week to stakeholders. That email cited Donald Trump’s presidential order directing federal agencies lower regulatory burdens.
The lead regulations, which are part of the Toxic Substances Control Act, affect how hazardous lead levels in dust, soil, and paint are identified, remediated, and disclosed. Legal advocates expressed concern that these potential changes will relax standards rather than strengthening lead protections at a time when communities across the country are discovering that lead contamination is more pervasive than previously thought.
A lead epidemic threatens to return
Emily Benfer, a clinical professor of law at the Loyola University Chicago School of Law, described the potential repeals and changes as “catastrophic.”
“It was the lack of regulations that originally created the lead epidemic and this completely preventable public health crisis that we are still in the trenches fighting today,” said Benfer. “These regulations, these certification programs, the lead poisoning prevention programs, the funding that goes with them—this isn’t about burdening the American people. This about protecting our children, and we have an obligation, we have a duty, frankly to do that.”
The Centers for Disease Control and Prevention has stated that no level of lead in children is safe, and experts have emphasized that primary prevention is essential to eliminating the threat of lead exposure.
Scientific research on the neurotoxic effects of lead on the developing brain has shown that elevated lead levels can cause a host of lasting damages: increased aggression, lack of impulse control, hyperactivity, inability to focus, and delinquent behaviors. And a growing body of evidence has shown that low blood lead levels are associated with a host of issues such as lowered IQ levels, attention-related behaviors, and poor academic achievement.
To eliminate childhood lead exposure would require that the EPA not just retain its existing regulations, but improve upon them, said Benfer.
“Removing these regulations — that will result in a neurotoxin being released into the environment and permanent brain damage for children — will place an additional burden on American people,” said Benfer. “If we truly want to support Americans and our country and our future generations, we have to protect them from lead poisoning as they’re starting out in life.”
Politicizing lead safety programs
Trump has directed the Environmental Protection Agency to significantly slash its budget, and an agency memo indicates the EPA plans to cut two lead-based paint programs. That, and the possible repeals and changes to the lead regulations, conflict with statements that EPA Administrator Scott Pruitt made during a visit earlier this month to a lead Superfund site in East Chicago. There, he pledged to get the agency “back to the basics of protecting human health and the environment.”
Pruitt said one of his top priorities is to deliver “real results” for the people of East Chicago, where neighborhoods such as the West Calumet public housing complex have dealt with the toxic fallout from a lead smelter facility.
“I was glad to witness some of this work firsthand today and hear from residents who are rightfully concerned with the cleanup of their community,” stated Pruitt in an EPA press release. “Their concerns were heard loud and clear, and I am committed to ensuring that the EPA works with our federal, state, and local partners to find solutions that protect the health and safety of East Chicago.”
Pruitt’s verbal commitment to lead safety is in sharp contrast to the president’s directive to aggressively hamper the EPA’s ability to enforce existing rules, let alone establish further safety measures.
Among the programs and regulations in danger of being repealed are the EPA’s Lead Renovation, Repair and Painting Program, which requires that certified firms perform lead-based-paint repairs and renovations in homes, childcares and preschools built before 1978; and the Residential Lead-Based Paint Disclosure Rule, which requires that home sellers and landlords disclose known lead hazards in residences built before 1978. The latter rule ensures sellers and landlords provide buyers and renters with a lead hazard information pamphlet, and that they offer an opportunity for an independent lead inspection of the home. Also being considered for repeal or replacement are the residential hazard standards for lead in paint, dust, and soil.
Removing and weakening the disclosure rule in any way would be a step backward. Benfer said it would create a false sense of security and safety for buyers and renters.
“It was the lack of regulations that originally created the lead epidemic… we are still in the trenches fighting [a public health crisis] today.”
“These laws are designed to put people on notice that there is an issue, that there is lead in the environment, before the child identifies it with their blood lead levels,” said Benfer. “Now people will be operating under the false belief that it must be safe because ‘in the past I’ve relied on the government to protect me from this harm.’”
Ignoring the science
The EPA has come under sharp criticism from environmental organizations and community groups who have said for years that the agency’s residential hazard standards, which are meant to protect children by identifying and removing lead hazards in homes, are obsolete. Those advocates point out the standards don’t align with scientific research, which indicates they must be stricter.
Last year, the San Francisco-based environmental law organization Earthjustice sued the EPA for failing to update the standards in a timely manner, a process that the agency launched in 2009 in response to a citizens’ petition. That same year, the EPA acknowledged that the hazard standards might not be sufficiently protective, according to the lawsuit.
In a court declaration responding to the lawsuit, the director of the EPA’s Office of Pollution Prevention and Toxics stated that the agency has continued to study the matter and may not update the standards, if it moves forward to do so, until 2023.
“There is no need to study further whether kids are harmed by lead. We know the answer: That at any level, lead is harmful,” said Eve Gartner, one of the litigators at Earthjustice who filed the lawsuit.
Gartner said the EPA doesn’t have the authority to repeal large portions of these regulations, which went into effect after Congress passed a law mandating the creation of a national strategy to eliminate lead-based paint hazards in housing as quickly as possible. This was in 1992.
“It’s a fairly comprehensive — if it were well done — aggressive program to reduce kids’ exposure to lead. But it’s required by statute, so all of the regulations are within a program that [the] EPA doesn’t have the discretion to eliminate,” said Gartner, who oversees efforts to protect people from toxic chemicals in the Healthy Communities Program at Earthjustice.
“There is no need to study further whether kids are harmed by lead. We know the answer: That at any level, lead is harmful.”
The EPA has some discretion to, for example, select the proper health protective standards using its expertise, but the agency doesn’t have the discretion not to pick a standard at all, she said.
“So there may be at the margins some small pieces of the regulations that [the agency] could eliminate and that wouldn’t violate the statute, but on the whole, this is a program that Congress has said must exist,” said Gartner. “And EPA can’t eliminate it and the White House can’t eliminate it.”
Federal safety standards that work
These and other federal regulations to reduce lead exposure are credited with significantly reducing blood lead levels among American children over the past 40 years. But much work remains, and any modifications that weaken lead standards could potentially reverse advances that have been made in recent decades, said Benfer.
“If we remove these, we still have within society 38 million homes with lead paint that will eventually become a hazard, and 23 million homes that have a lead hazard right now,” said Benfer.
“Without these regulations in place that outline and have specific requirements for how you remediate a home, homes are much more likely to be remediated in an unsafe way that will put all of the occupants in harm’s way.”
In East Chicago, the EPA announced last week that the agency was working with the state and city to coordinate lead water service line replacement, and had plans to remove contaminated soil in high priority properties, as well as clean up the yards of an estimated 120 properties.
But it’s inconsistent, Benfer pointed out, for the EPA to announce this progress while simultaneously announcing the repeal of the rules that would ensure that this work is done effectively.
For example, if the EPA moves forward to repeal or reduce funding for the Lead Renovation, Repair and Painting Program, this would impact the grants the program offers states to train contractors on how to properly remove lead-based paint.
“It would place the burden of responding to the issue in East Chicago, on the state of Indiana — a state that is home to long-standing Superfund sites and is strapped for resources,” said Benfer, noting that there are more than 1.7 million homes in Indiana built before 1978, the year the federal government banned lead-based paint for residential use.
Last year, the EPA provided the state of Indiana a total of $262,497.00 via a Lead-Based Paint Program grant. Without that funding, the responsibility would fall on states alone to fund such programs, said Benfer.
“There’s no universe in which the EPA could both protect human health and the environment, and repeal the only EPA regulations aimed at protecting children from exposure to a neurotoxin,” said Benfer.