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United States Senate Committee of Environment and Public Works Lead and Childrens Health Hearing






United States Senate
Committee of Environment and Public Works

Lead and Childrens Health Hearing
October 18, 2007

WRITTEN STATEMENT OF
THOMAS G. NELTNER, JD, CHMM

Representing the
Sierra Club
Improving Kids Environment
and
Concerned Clergy of Greater Indianapolis

Attachments:
1.

Background on Tom Neltner and Organizations
2.

Timeline of Key Events Regarding Lead in Consumer Products and Lead-Based Paint
During Previous 24 Months
3.

Sierra Clubs Section 21 Petition to EPA and Subsequent Litigation
4.

Sierra Clubs Actions Against Companies
5.

Results of Lead Content Screening of Childrens Jewelry Indiana Black Expo, July 20-
22, 2007
6.

Sierra Clubs April 17, 2007 Petition to CPSC and EPA
7.

EPAs Letter to CPSC Regarding Quality Control
8.

EPAs Typical Letter to Companies Regarding TSCA Section 8(e)
9.

Connecticut Attorney General Blumenthal Letter to Mattel on August 16, 2007
Tom Neltners Testimony to Senate Committee on Environment and Public Works
October 18, 2007 Page 2 of 14

Figure 1
CPSC Recalls for Lead
Contamination By Year
-
10
20
30
40
50
60
70
2004
2005
2006
2007
(10.5
months)
Year
N
u
m
b
e
r
o
f
R
e
c
a
lls
The Situation:
Sixty-two recalls of more than 9.5 million items in 2007 with ten weeks to go before the end of
the year. There were 43 recalls by the Consumer Product Safety Commission (CPSC) in the
previous three years.
1


The public is dazed and confused. The CPSC is overwhelmed and left to triage recalls based on
the magnitude of the danger. In the absence of federal leadership, state and local legislators
scramble to adopt laws to fill gaps. State and local childhood lead poisoning prevention
programs struggle with calls from the public. These calls draw their limited resources away
from their core mission to protect children from the primary source of lead poisoning lead-
based paint in housing. By all accounts, product retailers and importers of childrens products
are faring little better.

What is happening?

Put simply, parents, local
health departments, and
childrens health advocates
have lost faith in the federal
governments ability and
commitment to protect
children from lead
poisoning.

The Minnesota childs death
in February 2006 laid bare
the tattered network
designed to protect children
from toxic chemicals in
consumer products.
2
As a
result, citizens took matters
into their own hands and
started testing products.
They used low-cost swabs that change color when the swabs contacted lead.
3
They used
expensive x-ray fluorescent (XRF) devices designed for lead-based paint to measure lead levels
in plastic, metal, and coatings on toys.
4



1
See
www.cpsc.gov/cpscpub/prerel/prerel.html
.
2

U.S. Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report, Dispatch, March 23,
2006 / 55(Dispatch);1-2.
3
National Center for Healthy Housing, Testing for Lead in Consumer Products for Children, August 14, 2007. See
www.centerforhealthyhousing.org/factsheet-leadtestconprod.pdf

4
Id.
Tom Neltners Testimony to Senate Committee on Environment and Public Works
October 18, 2007 Page 3 of 14

When they found lead, they filed complaints forcing action. When the federal government was
slow to act, they went to their elected officials. California, Illinois, and Baltimore adopted
laws.
5
Indiana, New York and Illinois issued their own recalls.

Despite these efforts, the problem remains. At the Indiana Black Expos Health Fair in August
2007, the Concerned Clergy of Greater Indianapolis and Improving Kids Environment tested
products brought in by patrons. Of the items tested, they found that 62% of almost 400
childrens metal jewelry items and 32% of 85 plastic jewelry items contained more than 600
parts per million of lead CPSCs screening level.
6
The Indiana Pacers cheerleaders were
passing out mardi gras beads containing 1400 ppm of lead. Children were wearing this jewelry
and some were mouthing it!

EPAs Complicity
While the focus has been on CPSCs shortcomings, the U.S. Environmental Protection Agency
(EPA) has been complicit. EPA refused to use its authority under the Toxic Substances Control
Act (TSCA) to support CPSCs effort. Only after a lawsuit from the Sierra Club and Improving
Kids Environment forced its hand did EPA act. The delay has cost us dearly.

If EPA had responded constructively to the Sierra Clubs April 17, 2006, TSCA Section 21
petition
7
, EPA could have had the quality control procedures of companies such as Mattel in its
hand one year before the failings of those procedures became painfully apparent. EPA could
have identified the problems and taken steps to fix them. Instead of putting CPSC in a reactive
mode triaging complaints Congress gave EPA the statutory authority to take action. EPA
refused to exercise that authority.

Instead of acting immediately, EPA chose to take advantage of a loophole in the law claiming
that Sierra Club could not force a regulation on quality control procedures without EPA first
issuing orders to the companies. EPA refused to issue the orders even to those companies who
already had recalls. Sierra Club maintained that a recall was ample evidence that a companys
quality control procedures had failed. Unfortunately, many of these companies had additional
recalls after EPA denied the Sierra Clubs petition.

In denying the petition, EPA said it planned to work in coordination with CPSC to understand
the scope of the problem.
8
EPA claimed that a holistic and proactive approach may be more
effective and less resource intensive than the case-by-case approach provided for under section
6(b).
9
Eighteen months and 72 recalls have passed and there is no tangible evidence that EPA
has found that holistic and proactive approach.

5

California Statutes 2006, Chapter 415, Article 10.1.1 Lead Containing Jewelry. Illinois Public Act 094-0879:
The Lead Poisoning Prevention Act of 2006. Baltimore City, Maryland regulations at
www.baltimorehealth.org/jewelry.html
.

6

See Attachment 5. Results of Lead Content Screening of Childrens Jewelry Indiana Black Expo, July 20-22,
2007 by Improving Kids Environment.

7
See Attachment 6. Sierra Clubs, April 17, 2006 Section 21 Petition to EPA and CPSC
8
EPAs July 20, 2006 Denial of Sierra Clubs Section 21 Petition. See page 1.
9
Id. See page 2.
Tom Neltners Testimony to Senate Committee on Environment and Public Works
October 18, 2007 Page 4 of 14


As a result, parents must work through complicated websites and conflicting guidance as they
make decisions on Holiday presents for their children. Retailers must resort to testing products
on their shelves to restore consumer confidence. And CPSC is left to issue repeated recalls on a
case-by-case basis.

Acting a year earlier would not necessarily have avoided the recalls. But it would have given
EPA and CPSC the opportunity to proactively address the situation in a systematic method. This
proactive approach would have reassured the public and saved hundreds of thousands of dollars
in wasted resources, especially at the state and local level.

While CPSC might have been able to take action on its own, the failure of CPSC and EPA to
work together and leverage EPAs more powerful information gathering authorities was a lost
opportunity.

EPAs failure is not limited to consumer products. Congress mandated that EPA adopted rules
regarding the renovation, repair and painting of housing and child-occupied facilities by 1996.
10

EPA issued a proposed rule on January 10, 2006 under pressure from a lawsuit by the Public
Employees for Environmental Responsibility (PEER) and others.
11
It committed to finalizing
the rule by January 2007 and is now hoping for March 2008.

Public confidence is going to take another hit if EPA finalizes this rule as proposed. In the
proposed rule, EPA rejected the use of lead dust wipes to verify that contractors did not create
lead hazards. Lead dust wipes had been repeatedly validated as the most reliable method to
determine whether lead hazards were present or not. EPAs own rules relied on this method.
12


EPAs proposed rule was virtually unenforceable. Contra