CPEO Comments on the Lead Rule

[Lenny Siegel <lsiegel@cpeo.org>]

[Below are CPEO's comments on EPA's proposed lead rule. We are posting
it on both our lists, so for those of you are are on both, we apologize
for the duplication.]

December 18, 1998

OPPT Document Control Officer (7407)
Office of Pollution Prevention and Toxics
Environmental Protection Agency
401 M St., SW., Rm. G-099, East Tower
Washington, DC 20460

RE: Docket control number OPPTS-62156D

Dear Sirs/Mmes:

I believe that U.S. EPA's proposed rule, "Lead; Identification of Danger
Levels of Lead," 40 CFR Part 745, as published in the Federal Register,
June 3, 1998, as it pertains to acceptable levels of lead contamination
in residential soil, is fundamentally flawed.

I do not have the time, expertise, or inclination to comment on all the
technical aspects of the proposed rule, but I believe that ARC Ecology,
in its October 22, 1998 submission, has done an excellent job of
identifying the weaknesses, and in a few places, the strengths, of the
proposed rule.

The fundamental problem in the proposed rule is that it tries to
calculate an aggregate economic cost and benefit for different soil
standards. These calculations are subject to enormous uncertainty, and
they undermine the purpose of establishing a health-based lead-in-soil
concentration standard. 

Uncertainty

Many of the sources of uncertainty are obvious. Data on lead-in-soil
contamination is sparse. The costs of remediation vary enormously with
site conditions. The consequences of lead exposure, such as
developmental disorders, are difficult to monetize. How does one
calculate the pain and suffering of a family in which children suffer
seriously disabilities as the result of lead paint exposure? How does
one place a dollar value on the cost to society of accommodating a new
generation of lead-disabled children?

Purposes of a Health-Based Standard

A credible health-based standard, developed independently of economic
factors, would accomplish the following. (From the preamble to the
proposed rule, it appears that 400 parts per million, measured at each
point where risk management is under consideration, may be a reasonable
level for these purposes. But on this I am prepared to defer to the
toxicologists and other health experts.)

1. It would provide a starting point from which to make site-specific
risk management decisions that consider the relative risk reduction
likely to result from a range of remedial strategies and expenditure
levels.

2. It would establish a standard for determining residual risk for the
purpose of site closeout or completion.

3. It would establish a measuring stick against which to survey and map
locations with unacceptable lead exposures. 

4. It would aid Congress as well as state governments in determining the
proper legislative and regulatory approach to the reduction of serious
risks to human health. EPA's scope in this rulemaking is limited, but
the establishment of a reasonable health-based standard might encourage
the passage of legislation with a broader scope.

5. It would also help the federal and state governments, residents,
property owners, and other responsible parties to consider the proper
levels of funding to be applied to the remediation of lead soil
contamination.

6. It would encourage private and public investment in new technologies
and strategies to improve the cost-effectiveness of such remediation.

Reducing Risk

The various statutes that govern environmental response establish
mechanisms for weighing long- and short-term effectiveness against the
financial and other costs of response. Many of these mechanisms, such as
the nine criteria in the National Contingency Plan, are good as far as
they go, but decision-makers still lack the analytical tools they need
to weigh cost vs. protectiveness. No one wants to waste money on actions
that do little to protect public health, but we need a new model for
applying health standards in a way that facilitates the selection of
cost-effective remedial strategies.

In my recent paper, "Reducing Risk" [available on the World Wide Web at
http://www.cpeo.org], I proposed a new paradigm for considering cost and
effectiveness. This approach grows from my experience with hazardous
waste cleanups under CERCLA [the Comprehensive Environmental Response,
Compensation, and Liability Act] and discussions surrounding the
implementation of the proposed Range Rule to govern the response to
unexploded ordnance hazards, but it is equally applicable to responses
under TSCA [the Toxic Substances Control Act] to the contamination of
soil with lead paint.

The core of this approach is to estimate (and present in graphical form)
at each site the cost effectiveness, measured in risk reduction per
dollar, of each remedial alternative under consideration. All other
factors being equal, the most cost effective remedy would be selected.
(Of course, since other factors are seldom equal for all remedial
alternatives, the advantages of the most cost-effective remedy would be
weighed against the advantages, resulting from other factors, of
competing options.)

Since the cost-effectiveness of each remedy may vary over the life of
the project, it may be possible to begin with interim remedies that are
cost effective in the short run, move to long-term remedies as they
become more cost effective, and to hold off on final action until more
efficient innovative technologies are found.

The principal advantages of this approach is that it is designed to
avoid spending large amounts of money achieving very little risk
reduction. In the case of soil pollution from lead paint, it would
encourage quick cleanup at sections of contaminated property with
particularly high levels of lead, while encouraging containment or
access controls in other areas. (This suggests, of course, that point
analysis, not averaging across the entire property, is the best way to
assess lead contamination for the purpose of cost-effectiveness.)

If the risk reduction curve flattens out under any chosen remedial
option, expenditures could be postponed, subject to recurring review, to
determine whether more cost effective solutions (with sharper risk
reduction slopes) are available. This would continue until the
health-based standard - in this case, 400 part per million of lead at
each point in the soil - is reached or permanent actions have been taken
to prevent human exposure to the residual levels of lead above the
regulatory standard.

The Key Decision

I am not suggesting that EPA adopt my particular methodology. It's new.
It needs refinement. It has not yet been subject to peer review. The key
decision today is that cost-benefit analysis must be conducted on a
site-specific basis, as part of risk management, not built into a
permanent health standard. Under EPA's proposed rule, many children (and
others) would be exposed to unacceptably high levels of lead
contamination even though, based upon a typical distribution of costs -
a bell curve, for example - remediation at a large fraction of those
sites could be accomplished in a cost effective way.

Sincerely,

Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org
http://www.cpeo.org