By Andrew H. Perellis and William R. Schubert
The Centers for Disease Control and Prevention (CDC), in a new policy statement (technically, a response to a report and list of recommendations that a special advisory committee to the CDC had published earlier this year), has recommended tougher standards and preventative measures to further curb childhood lead exposure. The recommendations are not legally binding. However, they do provide a roadmap of what to expect in future regulation.
Until recently, the CDC identified children with 10 or more micrograms per deciliter (μg/dL) in their bloodstreams as having blood lead levels (BLLs) of concern. The CDC is now abandoning the “level of concern” approach because it believes that lead exposures well below 10 μg/dL can have harmful effects on childhood development. The new approach uses a “reference value” that tracks the top 2.5% of BLLs reported among U.S. children ages 1-5. Presently, the level for the highest 2.5% equates to 5 μg/dL. The CDC plans to recalculate the reference value based on new data every 4 years — which likely means periodically decreasing the BLL level that will trigger mandatory obligations via the regulatory process.
CDC estimates that about 450,000 U.S. children aged 1 to 5 have blood lead levels above the new standard, an increase from 250,000 with lead levels greater than 10 μg/dL.
Despite the new reference value, Congress has not authorized funds to pay for the measures that might be needed to protect the expanded number of impacted children. Presumably, the new reference value will cause local and State government to tighten their requirements for lead mitigation measures in housing where children have exposures causing BLLs in excess of the reference value.
State and local laws and regulations require certain high-risk infants and young children to undergo blood lead screening. Positive screening triggers public health regulations that apply to a broad range of other actors. For example, physicians must report and continue to monitor cases of lead poisoning. Further, property owners that house children with unacceptable lead exposure levels must comply with certain follow-up rules, which often means paying for licensed lead hazard inspectors to evaluate the home and to mitigate any found hazards.
Although addressing unacceptable exposures once found is one prong of CDC’s focus, its guidance also emphasizes additional, preventative measures. The CDC’s new emphasis on prevention could have far-reaching implications if state and local government bodies embrace it. For example, a municipality might modify its housing code and force landlords to hire qualified inspectors to test for lead-based paint in a broader set of cases — including cases not triggered by a documented lead-exposed child at a specific location. Conceivably, a state or municipality might require landlords to test and abate lead hazards before renting housing to new tenants or renewing old leases.
The historic approach has been to address only deteriorated lead-based paint while permitting intact, well-maintained lead strata to remain in place. But with ever decreasing reference values and the associated increases in the costs of testing and maintaining housing, landlords and homeowners might eventually find removal of intact lead-based paint to be the more cost-effective option.
The extent to which new rules are forthcoming based on the CDC recommendations will, of course, depend on other decisions. Several regulatory bodies will have a stake in the outcome. At the federal level, the U.S. Environmental Protection Agency and the U.S. Department of Housing and Urban Development both have discrete responsibilities related to lead safety. Either one might consider substantive or procedural changes to its policies based on the CDC’s recommendations. Further, state and local agencies will ultimately need to consider whether (and/or how) to implement new policies based on the CDC’s framework.
In sum, the CDC guidance, with its ultimate goal of eliminating childhood exposure to lead at any level, is likely to have a major impact.