On January 17, 2024, The Environmental Protection Agency (EPA) announced “updates to guidance for lead in residential soil at CERCLA (also known as Superfund) sites and Resource Conservation and Recovery Act (RCRA) corrective action facilities” (CERCLA = Comprehensive Environmental Response Compensation and Liability Act).
Importantly, the new guidance 1) goes into effect immediately and 2) the new levels apply to both open CERCLA/RCRA sites and sites that have already been closed. This change in lead guidance as a potential “reopener” of closed sites is similar to the reopener discussions around per and polyfluoroalkyl substances (PFAS).
From the EPA, “This guidance should be considered for all residential lead sites subject to CERCLA response and RCRA Corrective Action authorities, including those previously addressed and/or deleted from the National Priorities List” (emphasis added).
Screening Level Cut in Half or More
The new residential screening level (RSL) for lead in soil is reduced by half from the current RSL of 400 ppm to 200 ppm. If there are other potential exposure pathways where people may be exposed to lead (water pipes/paint), the EPA recommends an RSL of 100 ppm.
Concerns about Site Reopeners
From a recent blog by Barnes and Thornburg, “While the goal of protecting children from lead exposure is rightfully one of the EPA’s top priorities, the agency’s decision to apply the new guidance retroactively is problematic.”
Later in the same blog, they write, “For those who have already been down this road for emerging contaminants (e.g., 1,4 dioxane and PFAS), reopening closed sites has been a practical and financial nightmare. There is little more unsettling in the environmental arena than having to contact a group of potentially responsible parties (PRPs) who understood they had resolved their CERCLA liability at a site (and who may have settled with their insurers based on that belief) and telling them they may be facing substantial additional response costs to conduct further investigation and remediation.”
Background on Lead Use and Lead Bans
The use of lead dates back hundreds, if not thousands of years. This includes water pipes, additives in gasoline and paint, lead smelting (and air deposition), ammunition, and even in food and cosmetics. This has resulted in a variety of impacts to human health and the environment.
Lead is a neurotoxin and is particularly harmful to children. More recent efforts to reduce human exposure to lead have focused on lead in water pipes, lead in paint, and lead in gasoline. In 1975, lead was discontinued as an additive to gasoline. Lead in paint for residential use was discontinued in 1978.
In 1986, the Safe Drinking Water Act was amended prohibiting the use of pipes, solder or flux that were not lead-free in public water systems or plumbing in facilities providing water for human consumption.
Significant Reduction in Lead Exposure
Actions to reduce lead exposure have been effective. According to the Centers for Disease Control, average lead concentration in blood for both children and adults has dropped more than 80 percent since the late 1970s.
Reducing lead in products has resulted in a 80% drop in average lead concentrations in blood (Image source and credit: Max Roser – Our World in Data).
Continued efforts to reduce human exposure and consumption of lead are important. As with any regulatory action, we need to be mindful of the costs and potential unintended consequences of new edicts. With respect to site remediation efforts, especially “closed sites,” this new guidance along with other potential site reopeners will likely create a new spate of lawsuits and counter-lawsuits. It may be wise to dust off your past files to see if you have potential exposure to these reopeners.
For more information on the new guidance from the EPA see, “Updated Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities.”
If you need assistance with an environmental issue, contact us at info@dragun.com or 248-932-0228.
Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.
Alan Hahn drafted this blog. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
Jeffrey Bolin, M.S., reviewed the blog. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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