Monday, March 14, 2011

CPSIA - What Does the CPSC Know that the EPA Doesn't?

At the recent 100 ppm hearing before the CPSC Commission, Nancy Nord asked presenters to submit regulations put out by other agencies restricting lead in our environment. She presumably wanted perspective on whether a reduction to 100 ppm lead-in-substrate content in children's products would actually improve health or instead, simply further punish the fools who stubbornly remain in the children's products market.

I submit here EPA regulations on permissible lead levels in play yards and residential dirt. Pleae note that lead in dirt is soluble, so it actually presents a health risk to children. In 2001, the EPA implemented a revised legal/regulatory architecture to protect children from lead-in-paint and lead in the environment. The regulations (40 CFR Part 745) are entitled "Lead; Identification of Dangerous Levels of Lead; Final Rule".

I think this is an interesting rule because we sell sand and soil as part of children's science kits. Hmmm. The CPSIA restricts lead content in everything we sell, even fossils and rocks, hence our well-known lead labels. Does the EPA permit something that the CPSC forbids?


Consider what the EPA said about its new regulations:

"EPA is also promulgating amendments to the regulations for leadbased paint activities under the authority of TSCA section 402 (15 U.S.C. 2682) and to the State and Tribal program authorization requirements under authority of TSCA section 404 (15 U.S.C. 2684). These changes are needed to ensure consistency among the various regulations covering lead risks under TSCA."

Consistency seems to be a concern of the EPA. How quaintly passé.

Nonetheless, the EPA seems to understand what is at stake for American children when it comes to lead:

"Reducing exposure to lead has been an important issue for EPA for more than 2 decades. Young children are especially vulnerable to the toxic effects of lead because their nervous systems are still developing and they absorb more of the lead to which they are exposed. Many of the health effects associated with lead are thought to be irreversible. Moreover, the effects at lower levels of exposure are often asymptomatic. In light of the impacts on children and the nature of the health effects, EPA’s goal is to eliminate exposure to harmful levels of lead." They get it, right?

Uh-oh. The EPA veers away from the current script . . . .

"First and foremost, the Agency faces the difficulty of determining the level at which to set the standards given the uncertainties in information on cause and effect--what environmental levels in which specific medium may actually cause particular blood lead levels that are associated with adverse health effects. The Agency has tools, which are only generally consistent, that show that certain increases in environmental lead levels are associated with certain increases in blood lead levels. Given the range of uncertainty shown in its analysis supporting the establishment of a hazard level under this rule, EPA has developed a technical analysis that considers hazard standards for dust and soil at the lowest levels at which the analysis shows that across-the-board abatement on a national level could be justified. EPA recognizes, however that for any levels of lead in dust or soil judgment must be exercised as to how to treat the medium, and interim controls as well as abatement could be effective." [Emphasis added]

Sounding like administrators from another planet, the EPA continues:

"In performing its analyses for this rule, the Agency could not quantitatively compare interim control strategies with abatement strategies because there are only limited data available on the effectiveness of interim controls over extended periods of time, and those data which are available are not suitable for quantitative comparisons with abatements. In comparing interim control strategies with abatement strategies, one must make a number of assumptions
concerning the costs of administrative management, and frequency of monitoring and renewal over the planning horizon. For the 50–year planning horizon which the Agency used in its dust and soil analyses, one would have to compare the time stream of interim control expenses, for as long as such expenses are necessary, and weigh the possible differences in potential blood-lead reductions, to make a fair comparison of abatement and interim control strategies." [Emphasis added]

Later, the EPA warns: "Also, identification of lead-based paint hazards under this regulation is sure to have impacts that could be expensive even though the range of expenses is, itself, difficult to resolve because of the uncertainty of individual behavior and the willingness of individuals to accept risks that EPA may identify. Thus, if EPA were to choose standards that are too low, the public could be unable to distinguish between trivial risks at the low levels of lead from the more serious risks at higher levels. This could result in clean up for little to no health benefit, or conversely, it could result in almost no clean up because persons would question the credibility of the ‘hazard' determination." [Emphasis added]

Clearly the EPA just does not get around very much. Damn the expense, man, there is NO safe level of lead!!!

Importantly, the EPA seems to grasp the difference between CORRELATION and CAUSATION. I wish Congress understood that idea a bit better. . . .

"For dust and soil, EPA had substantial raw data on environmental levels and blood lead levels, even though it faced substantial uncertainty in correlating the levels. . . . If EPA were to set unreasonable standards (e.g., standards that would recommend removal of all lead from paint, dust, and soil), States and Tribes may choose to opt out of the Title X lead program and property owners may choose to ignore EPA’s advice, believing it lacks credibility and practical value. Consequently, EPA needed to develop standards that would protect children without wasting resources by chasing risks of negligible importance and that would be accepted as reasonable by States, Tribes, local governments, and property owners."

Hope you weren't eating while you read that last bit. Sorry!

I could quote from this document all day. In light of the nightmare that is the CPSIA, the EPA rules read like some sort of comedy routine. Unfortunately, the joke is on us.

So what did the EPA actually do?

"As stated in Unit II.F.3., today’s rule establishes two hazard standards for bare residential soil; 400 ppm for play areas and an average of 1,200 ppm for the rest of the yard. [See 40 CFR §745.65(c)] EPA recommends that organizations and individuals consider some action in certain areas even where levels in bare soils are below the hazard standard, particularly, if there is a concern that children 6 years and under might spend substantial time in such areas, or if there is concern that the bare soil in such areas may contribute to lead levels in the dwelling, or in the play areas. However, this rule does not mandate that any action be implemented when levels are found to be below the lead hazard standard. Moreover, the kind of response that organizations and individuals might consider could include modest actions such as planting grass (or other ground cover) to more extensive actions such as covering the bare soil with several inches of clean fill."

Yes, you read that correctly. The standard for play yards (sand) is 400 ppm lead and for bare soil is 1200 ppm lead. If we put a bag of dirt in a child's science toy, the current CPSC limit is 300 ppm and at this very moment, the Commission is mulling a reduction of the lead limit in that soil to 100 ppm. This change will make more science products either illegal or unsalable for children under 13 years of age. We don't believe lead labels solve the problem.

The CPSC's rule on our products will have no effect on play yards, bare soil or anything except items defined as "Children's Products" under the incomprehensible rule adopted by the Commission.

The longer this goes on, the more I am convinced that only a new government solves the problem. Sad . . . but true.

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