EPA’s Continued Focus On Lead Regulation

Lead continues to be an area of heightened interest for EPA. On July 12, 2023, EPA released a proposal to strengthen requirements for the removal of lead-based paints in pre-1978 buildings and childcare facilities. EPA has expressed its commitment to addressing risks associated with childhood exposure to lead-based paint. Against this backdrop, other potential sources of lead contamination are receiving attention, including lead-clad cables.

Recent Lead-Based Paint Standards Proposal

Lead-based paint has been and continues to be an area of focus for EPA. Although the federal government banned lead-based paint for residential use in 1978, EPA says that an estimated 31 million pre-1978 houses still contain lead-based paint. Lead-based paint is a key source of exposure for children and is particularly harmful given activities like crawling and hand-to-mouth activity.^[1]On July 12, 2023, EPA announced a proposed rule under Section 402 of the Toxic Substances Control Act (TSCA). This would strengthen requirements for abatement activities in pre-1978 building and childcare facilities.^[2] This proposal aligns with the Biden-⁠Harris Lead Pipe and Paint Action Plan released in December 2021.^[3]

EPA is proposing to revise the dust-lead hazard standards (DLHS) and dust-lead clearance levels (DLCL). The DLHSs identify hazardous lead in dust on floors and window sills and provide the basis for risk assessors to determine whether dust-lead hazards are present during a risk assessment or a lead hazard screen in pre-1978 homes and childcare facilities. By comparison, the DLCLs are the amount of lead that can remain in dust on floors, window sills, and window troughs after lead removal activities in pre-1978 homes and childcare facilities. Traditionally, the DLHS and DLCS have been set at the same level. If finalized, the proposed rule would take the novel approach of “decoupling” the standards. EPA is proposing to reduce the DLHS from 10 micrograms per square foot (µg/ft²) for floors and 100 µg/ft² for window sills to any reportable level greater than zero. EPA says that this is in recognition of the fact that there is no level of lead in dust that has been found to be safe for children. The DLCL would also be lowered from 10 µg/ft² to 3 µg/ft² for floors, from 100 µg/ft² to 20 µg/ft² for window sills, and from 400 µg/ft² to 25 µg/ft² for window troughs. These new levels represent the lowest post-abatement dust-lead levels that the Agency believes can be reliably and effectively achieved. 

Lead-Sheathed Cables

Lead-sheathed cables are another potential source of soil and groundwater contamination receiving enhanced attention. While not previously a focus of regulators, lead-sheathed cables were historically utilized by the telecom industry. To date, EPA has not promulgated regulations targeting lead-sheathed cables. EPA’s Strategy to Reduce Lead Exposure and Disparities in U.S. Communities released in October 2022^[4] also does not identify lead-clad cables as a source of lead contamination.

Environmental groups are nevertheless calling on EPA to do more in the area. Earlier this month, environmental groups submitted a letter to EPA Administrator Michael Regan asking EPA to investigate the potential for releases of lead into the water or soil from lead-sheathed telecom and power cables. The groups request that EPA use its authority under Section 104 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Section 1431 of the Safe Drinking Water Act (SDWA) to prioritize investigation of aerial cables, cables that are accessible to children, and underwater cables. Lead is designated as a hazardous substance under CERCLA,^[5] and EPA has also established a Maximum Contaminant Level Goal of zero under the SDWA.^[6] EPA has not yet publicly responded to the letter, nor to media requests for comment.

At least one nonprofit group has already pursued private litigation related to the alleged public health dangers from lead-sheathed telecom cables. In January 2021, the California Sportfishing Protection Alliance filed a lawsuit against Pacific Bell Telephone Company in the Eastern District of California related to two lead-clad telecommunications cables located beneath Lake Tahoe. The plaintiffs alleged that the cables are leaching lead into the water in violation of the SDWA and the Resource Conservation and Recovery Act.^[7]In order to resolve the lawsuit, Pacific Bell Telephone Company agreed to remove the cables from Lake Tahoe in 2021. However, the process to remove the cables has not yet commenced.

Key Takeaways:

• EPA remains committed to reducing childhood lead exposure from lead-based paint. EPA recently proposed a rule to strengthen the DLHS and DLCLS for abatement activities in pre-1978 homes and childcare facilities under Section 402 of TSCA.
• EPA will accept public comments on the Reconsideration of the Dust-Lead Hazard Standards and Dust-Lead Post-Abatement Clearance Levels proposed rule for 60 days following publication in the Federal Register via docket EPA-HQ-OPPT-2023-023.
• It remains to be seen whether environmental groups’ allegations regarding potential risks to lead-sheathed telecom cables will promote further regulatory action. In the meantime, potential private action by citizen groups looms, particularly in high-profile locations.

For more information on lead regulation, please contact Jonathan D. Brightbill (Partner, Government Investigations, Enforcement, and Compliance/Environmental Litigation), Madalyn B. Feiger (Associate, Environmental), or your Winston relationship attorney.

---

^{[1] See EPA, Biden-Harris Administration Proposes to Strengthen Lead Paint Standards to Protect Against Childhood Lead Exposure (July 12, 2023), available at https://www.epa.gov/newsreleases/biden-harris-administration-proposes-strengthen-lead-paint-standards-protect-against.}

^{[2] The rule has not yet been published to the Federal Register. A pre-publication version of the rule is available at https://www.epa.gov/system/files/documents/2023-07/PrePubCopy_8524-01_DLHS-DLCL_NPRM_FR_Doc_eSignature_ADMIN_2023-07-12_1.pdf.}

^{[3] See The White House, FACT SHEET: The Biden-⁠Harris Lead Pipe and Paint Action Plan (Dec. 16, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/16/fact-sheet-the-biden-harris-lead-pipe-and-paint-action-plan/.}

^{[4] Available at https://www.epa.gov/system/files/documents/2022-11/Lead%20Strategy_1.pdf.}

^{[5] See 40 C.F.R. § 302.4.}

^{[6] See id. § 141.51.}

^{[7] Cal. Sportfishing Protection Alliance v. Pac. Bell Tel. Co., Case No. 2:21-cv-0073-MCE-JDP.}