Get the lead out

Feb. 5, 2008
EPA rethinks air quality standards, seeks comments.

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By any independent standard, the federal government has made significant progress in reducing lead concentrations in ambient air. Average lead concentrations have dropped 96% since the 1980s, primarily due to the ban on lead in motor vehicle gasoline. Since the late 1970s, blood-lead concentrations for children ages 1 to 5 have decreased dramatically, from about 15 micrograms per deciliter (µg/dL) to less than 2 µg/dL. The success has been so dramatic, the U.S. Environmental Protection Agency (EPA) is now considering whether to maintain, revise, or eliminate current lead National Ambient Air Quality Standards (NAAQS). EPA, in late December, issued an advance notice of proposed rulemaking (ANPR) and invited comment on all issues. This is the chemical industry’s opportunity to provide input.

How revisions are made

Two sections of the Clean Air Act (CAA) govern establishment and revision of the NAAQS. Section 108 directs EPA to identify and list air pollutants and periodically revise the list. CAA Section 109 directs EPA to propose and promulgate “primary” and “secondary” NAAQS for pollutants listed under Section 108.

EPA, in 1978, issued the primary and secondary NAAQS for lead under CAA Section 109. Both standards were set at 1.5 micrograms per cubic meter (µg/m3), measured as lead in total suspended particulate matter, not to be exceeded by the maximum arithmetic mean concentration averaged over a calendar quarter. A review of the standards was initiated in the mid-1980s. EPA didn’t propose any revisions to the 1978 lead NAAQS.

EPA initiated its current review of the air quality criteria for lead on November 9, 2004, held a series of workshops in 2005, and invited recognized scientific experts to discuss initial draft materials that addressed various issues being considered in the lead air quality criteria document. This initiated a long list of stakeholder meetings and regulatory actions, culminating in the preparation of a final Risk Assessment Report and final Staff Paper, released on November 1, 2007. EPA recommended against eliminating lead from the list of criteria pollutants and for imposing a stricter lead standard.

The current review also is the resolution of a lawsuit filed in May 2004, alleging that EPA had failed to complete the current review within the period provided by statute. Missouri Coalition for the Environment, v. EPA (No. 4:04CV00660 ERW, Sept. 14, 2005) provides that EPA issue in final its Staff Paper no later than November 1, 2007, and issue notices of proposed and final rulemaking of the lead NAAQS review no later than May 1, 2008, and September 1, 2008, respectively.

Request for comments

In the ANPR, EPA seeks public comment and is interested in general, specific and technical comments on all aspects of the rulemaking. These include lead in the ambient environment, the health effects evidence and the assessment of human exposure and health risk, environmental effects evidence and consideration of environmental exposure and risk, as well as an assessment of the adequacy of the current primary and secondary standards and of alternative standards for EPA’s consideration in reaching proposed decisions in the review of the lead NAAQS.

A divisive issue

The federal government’s initiatives over the past three decades to diminish the amount of lead being emitted into the air have proven enormously effective. Given these achievements, and EPA staff’s recommendation for a stricter standard, EPA’s ANPR will almost certainly invite many comments. Industrial interests can be expected to argue the substantial decline in ambient air values demonstrates that the current standard is working as intended. Others, however, can be expected to claim that chronic lead exposures continue to be a problem and urge EPA to lower the NAAQS.

Reportedly, some public interest stakeholders are unhappy that EPA’s ANPR entertains all options, including eliminating the lead NAAQS.

Many stationary sources list lead as an air parameter, and any reduction in the lead NAAQS would have significant implications for requiring enhanced pollution abatement equipment to achieve compliance and incurring related operational and retrofitting costs. For facilities that are required to manage lead issues, this rulemaking should be closely monitored as it will be a very divisive issue, especially during an election year.

By Lynn Bergeson, regulatory editor. She is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. Contact her at [email protected]. The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.