Supplemental Exhibits in Support of Plaintiffs' Motion for Partial Summary Judgement
Public Court Documents
June 21, 1991
36 pages
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Case Files, Matthews v. Kizer Hardbacks. Supplemental Exhibits in Support of Plaintiffs' Motion for Partial Summary Judgement, 1991. 084ddbaf-5c40-f011-b4cb-7c1e5267c7b6. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/74e45702-426a-4439-85ec-1c3dec4b7552/supplemental-exhibits-in-support-of-plaintiffs-motion-for-partial-summary-judgement. Accessed June 17, 2025.
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1{{ JOEL R. REYNOLDS
JACQUELINE WARREN
2{| NATURAL RESOURCES DEFENSE COUNCIL
617 South Olive Street
3|| Suite 1210
Los Angeles, California 90014
4] (213) 892-1500
5|| JANE PERKINS
NATIONAL HEALTH LAW PROGRAM
6/] 2639 South La Cienega Boulevard
Los Angeles, California 90034
711 (213) 204-6010
g|| BILL LANN LEE
KEVIN S. REED
g|| NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
315 West Ninth Street
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Los Angeles, California 90015
111] (213) 624-2405
12|| Attorneys for Plaintiffs
Erika Matthews, et. al.
13
(Continued on next page)
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UNITED STATES DISTRICT COURT
16
NORTHERN DISTRICT OF CALIFORNIA
17
18
ERIKA MATTHEWS, et al., ) CIV. NO. C-90-3620 EFL
19 )
Plaintiffs, ) SUPPLEMENTAL EXHIBITS IN SUPPORT
20 ) OF PLAINTIFFS' MOTION FOR PARTIAL
vs. ) SUMMARY JUDGMENT
21 )
MOLLY COYE, )
22 ) DATE: June 21, 1991
Defendant. ). TIME: 10:00 a.m.
23 )
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MARK D. ROSENBAUM
ACLU FOUNDATION OF SOUTHERN CALIFORNIA
633 South Shatto Place
Los Angeles, California 90005
(213) 487-1720
SUSAN SPELLETICH
KIM CARD
LEGAL AID SOCIETY OF ALAMEDA COUNTY
1440 Broadway
Suite 700
Oakland, California 94612
(415) 451-9261
EDWARD M. CHEN
ACLU FOUNDATION OF NORTHERN CALIFORNIA
1663 Mission Street
Suite 460
San Francisco, California 94103
(415) 621-2493
Attorneys for Plaintiffs
Erika Matthews, et al.
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Exhibit X --
Exhibit Y¥ --
Exhibit 2 --
Exhibit AA --
Exhibit BB --
EXHIBITS
Declaration of Dr. Philip J. Landrigan
U.S. Congress, Office. of Technology Assistance,
Children's Dental Services Under the Medicaid
Program-Background Paper, OTA-BP-H-78 (Washington,
D.C.: U.S. Government Printing Office, October 1990
H.R. Rep. No. 100-1041, lead Contamination Control
Act of 1988, reprinted in 1988 U.S. Code Cong. &
Admin. News 3793.
Supplemental Declaration of Dr. John F. Rosen
Declaration of Mark D. Rosenbaum
i o eX
DECLARATION OF DR. PHILIP J. LANDRIGAN
I, Dr. Philip. J. lLandrigan, declare and say:
1. The facts set forth herein are personally known to me
and I have first hand knowledge of them. If called as a witness,
I could and would testify competently thereto under oath.
2. I am currently Ethel H. Wise Professor and Chairman of
the Department of Community Medicine at Mount Sinai School of
Medicine of The City University of New York. Since 1985, I have
been Director of the Division of Environmental and Occupational
Medicine at Mount Sinai, where I am also a Professor in the
Department of Pediatrics. I am a Fellow of the American Academy
of Pediatrics ("Academy") and of the American College of
Epidemiology, and a member and past Chairman of the Academy's
Committee on Environmental Hazards. Since the early 1970s, I
have been actively involved in research on the epidemiology and
toxicology of pediatric exposure to lead, and I have been
involved in the clinical treatment of children with lead
poisoning since the late 1960s. (See CV Exhibit A hereto.)
3. I am familiar with the Academy's 1987 Statement on
Childhood Lead Poisoning and was directly involved in its
preparation as Chairman of the Committee on Environmental
Hazards. At the time the Statement was written, it was the
virtually unanimous sense of the Committee on Environmental
Hazards that universal lead testing of all children was required
in order to address the critical problem of childhood lead
poisoning in the United States. That sense is reflected in the
1 % .
Academy's recommendation that "ideally, all preschool children
should be screened for lead absorption by means of the
erythrocyte protoporphyrin test." The subsequent "priority
guidelines" were inserted as a practical compromise dictated by
the practitioner committee of the Academy in recognition of the
possibility of limited resources available to practitioners and
the lower risks of exposure to affluent children -- a compromise
agreed to by the Committee on Environmental Hazards only to
ensure that a statement on childhood lead poisoning would be
issued by the Academy.
4. Since that Statement was issued, scientific research has
confirmed that the effects of even low level lead exposure are
far more toxic than previously believed. On the basis of this
research, the Centers for Disease Control are preparing to
recommend that the blood lead level threshold be lowered from a
blood lead level of 25 ug/dL to a level of 10 ug/dL and that
universal blood lead testing of all children be required. These
new data from the CDC clearly confirm the medical necessity for
mandatory periodic blood lead testing of all children in order to
detect and treat excessive lead exposure in children in a timely
and effective manner. Timely detection and, if necessary,
treatment are required to prevent brain damage, learning
deficits, and other irreversible damage to the nervous system
caused by excessive exposure of children to lead.
5. Even as currently written, however, the Academy's
Statement reflects the Academy's view that periodic testing of
all preschool children is medically necessary. Particularly as
applied to Medicaid-eligible children -- virtually all of whom
exhibit one or more of the risk factors identified in the
Academy's Statement -- blood lead testing is essential, and it
would be a serious misreading of the Academy's Statement to
suggest that, in the Academy's view, such testing is not a
required element of any minimally adequate lead screening program
for all such children. To the contrary, because lead poisoning
is frequently asymptomatic in young children, periodic blood lead
testing is the only certain method to detect excessive lead
exposure. For young low income and minority children in
particular, it was unquestionably the intention of the Academy to
recommend mandatory periodic blood lead level testing.
6. It is simply nonsense to suggest that the benefits of
early lead poisoning detection by a blood lead level test are
outweighed either by the costs of the tests or the invasiveness
of the testing procedure. Not only is the drawing of blood a
common practice in a typical medical examination, but the long-
term benefits of early detection and treatment are incalculable.
Although an oral examination may perhaps be cheaper and less
invasive, it is an unreliable screening tool and inevitably will
result in lead-exposed children going undetected and untreated.
In issuing the Statement on Childhood Lead Poisoning, the
Academy's Committee on Environmental Hazards never considered
verbal screening to be even a remotely valid alternative to lead
blood tests.
, l
fw
Executed at New York, New York this /7 day of June 1991.
I declare under penalty of perjury that the foregoing is
aA
true and correct.
DR. PHILIP J. ey IGAN
June 1991
CURRICULUM VITAE
Name : Philip J. Landrigan, M.D., M.Sc., P.1.H.
Born : Boston, Massachusetts, June 14, 1942
Wife : Mary Florence
Children: Mary Frances
Christopher Paul
Elizabeth Marie
Education:
High School: Boston Latin School, 1959
College: Boston College, A.B. (magna cum laude), 1963
Medical School: Harvard - M.D., 1967
Internship: Cleveland Metropolitan General Hospital, 1967-1968
Residency: Children’s Hospital Medical Center, Boston,
(Pediatrics), 1968-1970
Post Graduate: London School of Hygiene & Tropical Medicine, 1976-77
Diploma of Industrial Health (England) - 1977.
Master of Science in Occupational Medicine,
University of London (with distinction) - 1977
Positions Held:
Ethel H. Wise Professor of Community Medicine and
Chairman of the Department of Community Medicine,
Mount Sinai School of Medicine, 1990-Present.
Director, Division of Environmental and Occupational Medicine, Department
of Community Medicine, Mount Sinai School of Medicine, 1985-Present.
Professor of Pediatrics, Mount Sinai School of Medicine, 1985-Present.
Director, Division of Surveillance, Hazard Evaluations and Field Studies,
National Institute for Occupational Safety and Health,
Centers for Disease Control, 1979-1985.
Chief, Environmental Hazards Activity, Cancer and Birth Defects Division,
Bureau of Epidemiology, Centers for Disease Control, 1974-1979.
Director, Research and Development, Bureau of Smallpox Eradication,
Centers for Disease Control, 1973-1974.
Epidemic Intelligence Service {E1S) Officer,
Centers for Disease Control, 1970-1973.
Philip J. Landrigan, M.D.
Adjunct Positions:
Clinical Professar of Environmental Health,
School of Public Health and Community Medicine,
University of Washington, 1983 - Present.
Visiting Lecturer on Preventive Medicine and Clinical Epidemiology,
Harvard Medical School, 1982 - Present.
Visiting Lecturer on Occupational Health,
Harvard School of Public Health, 1981 - Present.
Assistant Clinical Professor of Environmental Health,
Department of Environmental Health, College of Medicine,
University of Cincinnati, 1981 - 1986.
Visiting Fellow, TUC Institute of Occupational Health,
London School of Hygiene and Tropical Medicine, 1976 - 1977.
Clinical Instructor in Pediatrics: Harvard Medical School, 1969 - 1970.
Memberships:
Fellow, American Academy of Pediatrics
Member, American Association for the Advancement of Science
Member, Society for Epidemiologic Research
Member, American Public Health Association
Elected Fellow, Royal Society of Medicine
Member, International Commission on Occupational Health, *
Scientific Committee on Epidemiology
Member, American Academy of Clinical Toxicology
Fellow, American College of Epidemiology
Member, American College of Epidemiology,
Board of Directors, 1990 - 1993.
Elected Member, American Epidemiological Society
Fellow, Collegium Ramazzini
Member, Herman Biggs Society
Fellow, New York Academy of Sciences
Member, New York Occupational Medicine Association,
Board of Directors, 1988 - 1990.
Fellow, American College of Occupational Medicine
Elected Fellow, New York Academy of Medicine
Member, The PSR Quarterly - Advisory Board
Specialty Certifications:
American Board of Pediatrics - 1973
American Board of Preventive Medicine:
General Preventive Medicine - 1979
Occupational Medicine - 1983
Philip J. landrigan, M.D.
Awards and Honors:
Department of Health, Education and Welfare - Volunteer Award - 1973
U.S. Public Health Service, Career Development Award - 1976
Centers for Disease Control, Group Citation as
Member of Beryllium Review Panel - 1978
U.S. Public Health Service, Meritorious Service Medal - 1985
Institute of Medicine, National Academy of Sciences - 1987
Visiting Professor of the Faculty of Medicine,
University of Tokyo - September 1989
Visiting Professor of the University, University of Tokyo - July 1990
Committees:
American Academy of Pediatrics - Committee on Environmental Hazards,
1976 - Present. Chairman, 1983 - 1987.
National Research Council, National Academy of Sciences,
Assembly of Life Sciences. Board on Toxicology and Environmental
Health Hazards, 1978 - 1987; Vice-Chairman, 1981 - 1984.
National Research Council, National Academy of Sciences, Assembly of
Life Sciences, 1981-1982; Commission on Life Sciences, 1982-1984.
National Research Council, Institute of Medicine, Committee for a
Planning Study for an Ongoing Study of Costs of Environment-
Related Health Effects, 1979 - 1980. .
National Research Council, National Academy of Sciences, Assembly of
Life Sciences. Panel on the Proposed Air Force Study of
Herbicide Agent Orange, 1979 - 1980.
National Research Council, National Academy of Sciences: Committee on
the Epidemiology of Air Pollutants, Vice-Chairman, 1984 - 1985.
National Research Council, National Academy of Sciences: Committee on’
Neurotoxicology in Risk Assessment, 1987 - 1989.
National Research Council, National Academy of Sciences: Committee on
the Scientific Issues Surrounding the Regulation of Pesticides
in the Diets of Infants and Children. Chairman, 1988 - 1990.
Governor's Blue Ribbon Committee on the Love Canal, 1978 - 1979.
Harvard School of Public Health, Occupational Health Program,
Residency Review Committee, 1981 - 1983; Chairman, 1981.
World Health Organization. Contributor to the WHO Publication:
Guidelines on Studies in Environmental Epidemiology
(Environmental Health Criteria, No. 27), 1834.
International Agency for Research on Cancer, Working Groups on Cancer
Assessment, October 1981 and June 1986.
(IARC Monographs No. 29 and No. 42).
National Institute of Environmental Health Sciences, Third Task Force
for Research Planning in the Environmental Health Sciences.
Chairman, Subtask Force on Research Strategies for Prevention
of and Intervention in Environmentally Produced Disease, 1983-1984.
National Institutes of Health, Study Section on Epidemiology and
Disease Control, 1986 - 1990.
3
Philip J. Landrigan, M.D.
Committees (continued):
Association of University Programs in Occupational Health and Safety,
1985 - Present. President, 1986 - 1988.
New York Lung Association: Research and Scientific Advisory Committee,
; 1986 - 1989. Board of Directors, 1987 - 1990.
Mount Sinai School of Medicine, Clinical Research Center Advisory
Committee, 1986 - Present.
Mount Sinai School of Medicine, Clinical Research Center,
Acting Program Director, 1987 - 1988;
Associate Program Director, 1987 - Present.
Mount Sinai School of Medicine, Executive Faculty, 1988 - Present.
Milbank Memorial Foundation: Technical Board, 1986 - 1988.
State of New Jersey, Meadowlands Cancer Advisory Board,
Chair, 1987 - 1989.
State of New York, Asbestos Licensing Advisory Board,
Chair, 1987 - Present.
New York Academy of Medicine, Working Group on Housing and Health,
1987 - 1989, Chair, 1989.
Centers for Disease Control, Alumni Association of the Epidemic
Intelligence Service, 1972 - Present. President, 1988 - 1990.
Editorial Boards:
Consulting Editor: American Journal of Industrial Medicine, .
1979 - Present. :
Associate Section Editor for Environmental Epidemiology:
Journal of Environmental Pathology and Toxicology, 1980 - Present.
Consulting Editor: Archives of Environmental Health, 1982 - Present.
Editorial Board: Annual Review of Public Health, 1984 - Present.
Senior Editor: Environmental Research, 1985 - 1987.
Editor-in-Chief: Environmental Research, 1987 - Present.
Editorial Board: American Journal of Public Health, 1987 - Present.
Editorial Board: New Solutions: A Journal of Environmental and
Occupational Health Policy, 1990 - Present.
Editorial Board: The PSR Quarterly: A Journal of Medicine
and Global Survival. 1990 - Present.
CONGRESS OF THE UNITED STATES OFFICE OF TECHNOLOGY ASSESSMENT
EE re
CHILDREN’S DENTAL
SERVICES UNDER THE
MEDICAID PROGRAM
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Chapter 3—Medicaid and the EPSDT Programs e 15
Nationally, less than half the children under age 13
living in poverty were covered by Medicaid for any
medical or dental services in 1986 (12).
Services
States are required to provide certain services to
categorically needy people and are allowed to
provide certain optional services’ under the Medi-
caid program. Although they are not required to do
so, most States who cover medically needy people
provide them with the same range of benefits offered
to categorically needy people in their State. States
may also impose limitations on any of the services
offered, generally to reduce unnecessary use and
control Medicaid outlays. See chapter 4 for further
discussion on the relevance of service limitations to
this study.
Reimbursement Policies
Except for a few instances,5 States generally
design their own payment methodologies and de-
velop payment levels for covered services. The only
* two universal reimbursement rules are that Medicaid
providers must accept payment in full and that
Medicaid is the ‘ ‘payer of last resort’ (i.e., Medicaid
pays only after any other payment source has been
exhausted).
Institutions, such as hospitals and long-term care
facilities, are paid differently than individual practi-
tioners. Payments to institutions are usually based
on either retrospective’ or prospective? methodol-
ogy. Individual practitioners are usually paid in one
of two ways: the lesser of their usual charge and the
State-allowed maximum, or based on a fixed fee
schedule. Reimbursement policies affect the access
of low-income children to dental care, as discussed
In chapter 4.
The Early and Periodic Screening, Diagnosis,
and Treatment Program (EPSDT)
The EPSDT program was legislated in 1967, and
implemented in 1972.° The program is unique in that
it provides for comprehensive health care, including
preventive services, to children under Medicaid. The
five basic components of the program ensure its
comprehensiveness: informing, screening, diagno-
sis and treatment, accountability, and timeliness.
EPSDT is jointly administered and funded by
Federal and State Governments primarily through
the Medicaid program, although some States admin-
ister the programs separately.
The EPSDT program is structured on a case
management approach, to ensure comprehensive-
ness and continuity of care, though specific combi-
nations of services and providers vary by State. In
addition, since 1985 States have been allowed to pay
a ‘‘continuing care provider’’ to manage the care of
EPSDT children. This means that this provider or
provider group is responsible for ensuring that each
child receives his or her entitled services. These
entitled services include notifying the child about
periodic screens and performing, or referring, appro-
priate services, as well as maintaining the child’s
medical records.
Informing
States must inform all Medicaid eligibles, gener-
ally within 60 days of eligibility determination, of
the EPSDT program and its benefits, particularly:
e about the benefits of preventive health care;
e about the services available under EPSDT,
where and how to obtain them;
eo that the services are without cost to those under
age 18 (or up to 21, agency choice) except for
any enrollment fee, premium, or other charge
imposed on medically needy recipients; and
“States are required to provide: inpatient and outpatient hospital services, physician services, EPSDT for children under age 21, family planning
services and supplies, laboratory and x-ray procedures, skilled nursing facilities for persons over 21, home health care services for those entitled to skilled
nrsing care, rural health clinic services, and nurse midwife services (12). The EPSDT program includes dental services for children under 21.
3 S tates have the option of also providing these services: clinic services, including dental care; drugs; intermediate care facilities; eyeglasses; skilled
nursing facilities for those under age 21; rehabilitative services; prosthetic devices; private duty nursing; inpatient psychiatric care for children or the
elderly; and physical, occupational, and speech therapies (12).
Payment rules and limits are established by law for rural health clinics, hospices, and laboratories.
TA retrospective system is based on the actual cost of providing the services rendered, after they are provided.
*A prospective system is based on a predetermined rate for defined units of service, regardless of the actual cost of providing the service.
fegulations became effective on Feb. 7, 1972.
4 Periodic. The Social Security Amendments of 1967 (Public Law 90-248) added the EPSDT benefit and required implementation by July 1, 1969. Final
16 e Children’s Dental Services Under the Medicaid Program
e that transportation and scheduling assistance
are available on request.
Most States provide the information at the time of
application for welfare, though some States employ
additional outreach methods.
Screening
The program also requires that all eligible chil-
dren who request EPSDT services receive an initial
health assessment. Generally, the screening should
be performed within 6 months of the request for
EPSDT services. This screening service should
include:
e a health and development history screening,
including immunizations;
¢ unclothed physical examination;
e vision testing;
¢ hearing testing;
e laboratory tests, such as an anemia test, sickle
cell test, tuberculin test, and lead toxicity
screening; and
e direct referral to a dentist for a dental screening.
Periodic medical examinations are based on the
periodicity schedule recommended by the American
Academy of Pediatrics. The recent Omnibus Budget
Reconciliation Act of 1989 (Public Law 101-239)
specified that, among older children, dental exami-
nations should occur with greater frequency than is
the case with physical examinations.
Diagnosis and Treatment
Further diagnosis of conditions indicated in exams
and their treatment are also components of the
EPSDT program. Specific diagnostic and treatment
services should be part of a State’s benefit package,
though States may provide a range of services to
children enrolled in EPSDT that go beyond the
scope of benefits for other Medicaid beneficiaries.
Accountability
States are required to prepare quarterly reports
which must contain utilization data by two age
groups, 0 to 6 and 6 to 21: :
¢ number eligible for EPSDT;
¢ number of eligibles enrolled in continuing care
arrangements (and of these, the number receiv-
ing services and the number not receiving
services);
¢ number of initial and periodic examinations;
and
e number of examinations where at least one
referrable condition was identified.
Initially, the Federal Government enforced the
EPSDT provisions by imposing a monetary penalty,
a 1-percent reduction in AFDC payments, on States
not informing or providing care to eligible children
(see the Social Security Amendments of 1972
(Public Law 92-603)). This penalty was eliminated
in the Omnibus Budget Reconciliation Act of 1981
(Public Law 97-35) and, instead, the adherence to
the EPSDT provisions became a condition of
Federal funding for Medicaid. OTA was unable to
find any evidence that any State was penalized
before 1981 or that any State has lost Medicaid
Federal funding since that time as a result of not
complying with the EPSDT provisions.
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LEAD CONTAMINATION CONTROL ACT OF 1988 ©
P.L 100-572, see page 102 Stat. 2884 ~ =
DATES OF CONSIDERATION AND PASSAGE
House: October 5, 1988
Senate: October 14, 1988
House Report (Energy and Commerce Committee) No. 100-1041,
Oct. 3, 1988 [To accompany H.R. 4939]
Cong. Record Vol. 134 (1988)
No Senate Report was submitted with this legislation.
HOUSE REPORT NO. 100-1041
[page 1)
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 4939) to amend the Safe Drinking Water Act to con-
trol lead in drinking water, having considered the same, report fa- vorably thereon with an amendment and recommend that the bill
as amended do pass. :
J J [J J [ J]
[page 5)
J $ : [J [J]
PURPOSE AND SUMMARY
This legislation provides programs intended to help reduce lead contamination in drinking water, especially for children. Its major provisions include a mandate for the Consumer Product Safety Commission to recall drinking water coolers with lead-lined water reservoir tanks; a ban on the manufacture or sale of drinking water coolers that are not lead free; a Federal program to help schools evaluate and respond to lead contamination problems, in- cluding Federal technical and financial assistance; and a lead
[page 6]
screening program for children to be administered by the Centers for Disease Control.
BACKGROUND AND NEED FOR THE LEGISLATION
The EPA estimates that 42 million Americans have tap water that contains more lead than permissible under the proposed EPA drinking water standard of 20 parts per billion (ppb), then under consideration at the Agency. (EPA has since moved to a standard
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LEGISLATIVE HISTORY
HOUSE REPORT NO. 100-1041
of 5 ppb.) ! Included in this figure are 3.8 million children under
age 6.
Children are especially vulnerable to lead exposure. Experts ex-
plain that their developing nervous system is particularly sensitive.
Also, they commonly have nutrient deficiencies that cause them to
absorb and retain more lead than adults. In a 1979 study, one of
the Nation's leading experts, Herbert Needleman of the University
of Pittsburgh, found that such characteristics as reduced 1.Q.
scores, lower academic achievement, reduced language skills and
reduced attention span were associated with levels of lead in the
blood that were once considered too low to affect health.2
According to the U.S. Environmental Protection Agency (EPA),
every year more than 241,000 children under age 6 are exposed to
lead in drinking water at levels high enough to impair their intel
lectual development.® The National Health and Nutrition Survey,
published in 1982, found that 9.1 percent of America’s preschool
children—a total of 1.5 million children under age 6—have lead
levels that meet the U.S. Centers for Disease Control's (CDC) defi-
nition of acute lead poisoning.
A 1986 EPA study lists the health problems that could be avoid-
ed if lead levels in tap water were reduced to the level of the pro-
posed standard then under consideration (20 parts per billion).
The study finds that in addition to the 241,000 children at risk of
mental impairment, each year some 680,000 expectant mothers in
the United States are exposed to lead levels in drinking water high
enough to be associated with miscarriage, low birth weight and re-
tarded growth and development of the fetus.$
The EPA also concludes that some 82,000 children each year are
at risk of growth impairment, and another 82,000 are at risk of ef-
fects on their blood cell formation. Nor are adult males free of risk.
EPA estimates that 130,000 cases of hypertension yearly can be as-
sociated with current drinking water lead levels, as well as a
number of heart attacks and strokes.®
! United States Environmental Protection Agency, “Reducing Lead in Drinking Water: A Ben-
efit Analysis,” (1986), p. 8.
? H. Needleman, C. Gunnoe, A. Eviton, R. Reed, H. Perisie, C. Maher and P. Barrett, “Deficits
in Psychological and Classroom Performance of Children with Elevated Dentine Lead Levels,”
New England Journal of Medicine, 300 (1979), 689-675.
? United States Environmental Protection Agency, “Reducing Lead in Drinking Water: A Ben-
efit Analysis” (1986), p. 24.
* Ibid.
$ Ibid. p. 19.
® Ibid. p. 24.
[page 7)
SOURCES OF LEAD
There are a number of other important sources of exposure to
lead in addition to drinking water. In gasoline, the use of lead has
been reduced, but not eliminated. Hence, automobile exhaust con-
tinues to release lead into our air supply and deposit it in the soil
and surface areas around the Nation's roadways. Leaded paint in
older buildings is a continuing threat to small children who might
put paint chips in their mouths.
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In an effort to «
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LEAD CONTAMINATION CONTROL ACT
P.L. 100-572 :
But the threat from drinking water stands out as a particularly
severe and almost wholly uncontrolled part of the problem. The
sources of lead in tap water are mainly lead pipes and lead solder
in drinking water lines and home plumbing, which release lead
into the water supply, especially in areas with particularly corro-
sive water. A
LEAD IN DRINKING WATER COOLERS
An important new lead contamination source was recently
brought to light at the December 10, 1987 hearing of the Subcom-
mittee on Health and the Environment on lead contamination of
drinking water. At the hearing, the authors of a U.S. Public Health
Service report to Congress on Childhood Lead Poisoning warned
that some electric drinking water coolers may contain lead solder
or lead-lined water tanks that release lead into the water they dis-
tribute.”
The Public Health Service warning is based on a study of water
coolers at a U.S. Navy facility. Data were supplied to the report's
authors by the U.S. EPA’s Office of Drinking Water. Lead contami-
nation from some coolers was found at levels up to 40 times the
lead standard then under consideration at EPA. The source of the
problem was reported to be lead solder and in some cases, lead-
lined water tanks used inside the water coolers.
In an effort to determine which water coolers have potential con-
tamination problems and which do not, the Health and the Envi-
ronment Subcommittee surveyed each of the major manufacturers
and requested information on the use of lead in their coolers, The
Subcommittee also asked their cooperation in immediately halting
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the manufacture and sale of any water coolers where the drinking 4 3 water comes in contact with lead solder, or is stored in lead-lined Ex
The manufacturers cooperated fully with the Subcommittee in- i 14 quiry. They provided the following information: Ages Manufacturers’ submissions indicated that close to one mil- REL lion water coolers now in use contain lead. This figure includes 3 5 hundreds of thousands of Halsey Taylor water coolers and hun- EE § dreds of thousands of EBCO (also sold under the names Aquar- Ag ious, Kelvinctor and Oasis) water coolers. ‘FE Threz major marufacturers indicated that lead had been 4 bo used in at least some models of their drinking water coolers. i |
1 F ? Testiaony of Dr Paul MushaX, Hearing on Lead Contamination in Drinking Water, Before : KY 3 the Health ard Environinent Subcomm.ittee of the Committee ci Energy and Commerce, 12th 33 Congress, 1st Session, tDec. 10, 1988, ir. press.
A
: - 38: SA [page 8] ; hj Ha Halsey Taylor Company reported use of lead solder in nu- $1 i merous models of water coolers manufactured between 1978 BY 1 i and the last weeks of 1987. (Including models: WMA-1; SWA- tits I; S3/5/10 C&D; S300/500/1000D; SCWT/SCWT -A; DC/DHC- Bf hs 1; HWC7/HWCT7-D; BFC-4F/F4FS/TFS; 5656 FTN; S5800FTN; EEF and 8880 FTN) Ee So
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LEGISLATIVE HISTORY
HOUSE REPORT NO. 100-1041
EBCO Manufacturing Company (whose products are also marketed under the names “Oasis , “Kelvinator,” and “Aquar- ious,”) reported the use of lead/tin solder (50 percent lead) in the bubbler valve seal in all pressure bubble coolers manufac- tured between 1962 and 1981.
A third major supplier, the Sunroc Corporation, reported the use of lead solder as a secondary seal in a limited number of bottled water coolers manufactured prior to 1983. Because of greatly reduced contact with drinking water, lead solder in a secondary seal would be expected to release less lead into the drinking water than lead solder in a primary seal. (Models USB-1, USB-3, T6Size 3, BC and BCH.)
One major supplier, Elkay Manufacturing Company, report- ed never having used lead in any of their drinking water cool- ers. Elkay coolers are also sold under the names ‘“Temprite” and “Cordley.” In addition, the Filtrine Manufacturing Compa- ny, a smaller supplier, also reported never having used lead in sny of their coolers.
nly very limited information was provided concerning water coolers manufactured prior to the 1960's, The industry has existed since before the 1520's,
The most serious problems are believed to be associated with water coolers that have water reservoir tanks that are lined with lead. In response to the Subcommittee inquiry, all of the manufac-
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Washington, DC, June 21, 1988. Mr. DoyLE RAYMER,
Director, Research and Development,
Halsey Taylor, Freeport, IL.
DEAR MR. RAYMER: This letter is in reply to your correspondence dated June 10, 1988 and a follow-up to your telephone conversation with Mr. Peter Lassovszky of my staff, on May 31, 1988. At that time, Mr. Lassovszky provided you with an update of the Environ-
[page 9]
mental Protection Agency's (EPA) progress of identifying the pres- ence of lead solder-lined water tanks in 22 water coolers the Navy provided to the EPA.
Twelve of the water coolers included in this lot were manufac- tured by Halsey Taylor. EPA’s Water Engineering Rrsearch Labo-
3796
BARA
e
b
0
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ratory (WEI
coolers man
voir tanks. /
reservoir ta
excess of 20
WERL ide
lined reserv(
Halsey Tay
Model Nun
WTS8A
WT 8A
GC10ACR
GC-10-A
GC 10A
GC 10A
The rema’
were missin
lowing iden!
5.
As reques
with the fol
1. The dat
None of the
in the list
assume that
2. The nu:
3. i
in the late
manufactur
notice.
4. Please
lead solders
tured by Hs
5. Please :
coolers havi
pany.
6. I unde
ment parts
vide inform:
I apprecis
looking for
contact Mr.
———————
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liter.
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products are also
ator,” and “Aquar-
30 percent lead) in
e coolers manufac-
ation, reported the
limited number of
)» 1983. Because of
r, lead solder in a
less lead into the
ary seal. (Models
Company, report.
inking water cool-
1ames “Temprite”
ifacturing Compa-
aving used lead in
vided concerning
0's. The industry
e associated with
at are lined with
1 of the manufac-
ad tanks,
r of EPA’s Drink-
coolers tested by
»und to have lead
Subcommittee in
manufactured a
sus public health
coolers found to
e associated with
amount allowed
The EPA letter,
y Taylor coolers
-
N AGENCY,
June 21, 1988.
~
* correspondence
ne conversation
1, 1988. At that
of the Environ-
tifying the pres
s00lers the Navy
: were manufac-
Research Labo-
LEAD CONTAMINATION CONTROL ACT
P.L. 100-572
ratory (WERL) examined these coolers and found that eight of the
coolers manufactured by Halsey Taylor had lead solder-lined reser-
voir tanks. Analysis of water samples in contact with one of these
reservoir tanks overnight revealed lead concentration levels in
excess of 20 milligrams per liter.?
WERL identified the following water coolers to have lead solder
lined reservoir tanks: :
Halsey Taylor ji
Model Number Serial number
WT SA 66 421303
WTS A 66 421268
GC10ACR 65 361559
GC-10-A 69-598593
GC 10A 142378
GC 10A 113383
The remaining two water coolers manufactured by Halsey Taylor
were missing identification tags. However, one of them had the fol-
lowing identification number on its compressor: 65643364 BM 2565
5.
As requested by Mr. Lassovezky, would you please provide me
with the following information:
1. The date of the manufacture of the water coolers listed above.
None of the model numbers identifying these coolers were included
in the list you provided to Congressman Waxman’s office, so I
assume that they may have been manufactured before 1978.
2. The number of units of each type of cooler manufactured.
3. During previous meetings with EPA staff, you indicated that
in the late 1970’s you voluntarily recalled coolers as a result of
manufacturing malfunction. Please forward a copy of this recall
notice.
4. Please forward copies of any reports dealing with the use of
lead solders in the manufacture of certain water coolers manufac-
tured by Halsey Taylor.
5. Please identify and provide information about any other water
coolers having lead solder-lined tanks manufactured by your com-
pany.
6. I understand that Halsey Taylor provides lead-free replace-
ment parts for coolers containing lead solder coolers. Please pro-
vide information about these retrofit units.
I appreciate your cooperation regarding these requests and I am
looking forward to your reply. If you have any questions please
contact Mr. Peter Lassovszky at 202 475-8499.
8 ' 20 milligrams/liter equals 2000 micrograms/liter. Proposed EPA standard is 5 micrograms/
iter.
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LEGISLATIVE HISTORY
HOUSE REPORT NO. 100-1041
[page 10]
I will contact Mr. Thomas Sorg of WERL, to make suitable ar-
rangements to have portions of Xe reservoir tanks removed from
Halsey Taylor water coolers available to you.
Sincerely,
MicHAEL B. COoK,
Director, Office of Drinking Water.
LEAD CONTAMINATION IN SCHOOL DRINKING WATER
The discovery of lead in water coolers is especially disturbing be-
cause of the widespread use of water coolers in the Nation's
schools. Unfortunately, many of the water coolers currently in use
at our schools and offices go back to well before the early 1980's,
when all but one manufacturer halted the use of lead. In fact,
many school water coolers date back to well before 1960, an era
sho which we have little information regarding the use of lead in
coolers.
There may be a serious problem with lead contamination of
drinking water at man schools. A July 1986 survey of school
water coolers by the Maryland Department of Education found
that 67 percent of the schools surveyed had lead levels above the
EPA standard of 20 parts per billion (ppb) then under consideration
(the Agency has since proposed a level of 5 ppb). A similar survey
in Minnesota found lead at levels above 20 ppb in 40 percent of
their samples. Other surveys have found high levels of lead con-
tamination at schools in California, North Carolina, New Jersey
and New Hampshire. More exhaustive surveys are now underway
in these and several other States.
The Public Health Service report on childhood lead poisoning ex-
plains why high levels may be expected to be a particularly serious
problem in school drinking water.
1. Water-use patterns in schools (school periods, weekends, vaca-
tions) involve long standing times of water in these units, which
rmit leaching.
2. Both water cooler-fountains and building plumbing may have
lead-soldered joints and other sites of leachable lead, such as lead-
containing surfaces in cooling tanks or loose solder fragments in
pipes.
3_ Unlike the case with lead-containing plumbing in private resi-
dences, which affects only the occupants, a single ho conteining
cooler-fountain could expose a large number of users.®
FEDERAL LEAD POISONING PREVENTION PROGRAMS
Regardless of its source, lead poisoning in infants and children
has become a major public health problem, especially in inner-city
neighborhoods. Left undetected and untreated, it can cause severé
disability, including mental retardation, behavioral difficulties, and
learning disorders.
In response to this concern, Congress enacted the Lead-Based
Paint Poisoning Prevention Act (P.L. 91-695) in 1971 to establish
programs designed to test and treat children with elevated blood
8 US. Public Health Service, Agency for Toxic Substances and Disease Registry, The Nature
and Extent of Lead Poisoning in Children in the United States: A Report to Congress, Volume L
July 1988, p. VI-12.
3798
lead levels anc
ing. That
in areas of gre
the highest ris.
its final year ¢
based projects
Of these, 22,00
Despite this
incorporated i
Grant (Title V
other public L
about the use
there have bet
have been gre:
Lead-Based Pe
MCH Block G:
(GAO) study ¢
that lead scree
emphasis.” Ar
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lead poisoning
With the pu
Nature and FE
States: A Rep
poisoning prol
dren—one ou
levels. Most of
cause of struc
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The Commi
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1982 (Ser. Nc
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ICHAEL B. Cook,
e of Drinking Water.
NKING WATER
pecially disturbing be-
Jlers in the Nation's
olers currently in use
fore the early 1980's,
use of lead. In fact,
1 before 1960, an era
ling the use of lead in
ad contamination of
986 survey of school
: of Education found
lead levels above the
n under consideration
Pb). A similar survey
ped in 40 percent of
th levels of lead con-
sarolina, New Jersey
7/8 are now underway
od lead poisoning ex-
a particularly serious
iods, weekends, vaca-
n these units, which
plumbing may have
le lead, such as lead-
solder fragments in
nbing in private resi-
ingle lead-containing
"users.®
PROGRAMS
infants and children
pecially in inner-city
, 1t can cause severe
ioral difficulties, and
sted the Lead-Based
in 1971 to establish
with elevated blood
disease Registry, The Nature
teport to Congress, Volume I,
LEAD CONTAMINATION CONTROL ACT
P.L. 100-572
[page 11] 3
lead levels and to eliminate the causes of lead-based paint poison-
ing. That program was very successful in targeting grant projects
in areas of greatest need and in screening infants and children at
the highest risk of having elevated blood lead levels. Indeed, during
its final year of operation, the program supported 54 community-
based projects through which some 535,000 children were screened.
Of these, 22,000 were found to have lead toxicity.
Despite this work, the program was terminated in 1981 and was
incorporated into the Maternal and Child Health (MCH) Block
Grant (Title V of the Social Security Act), along with a number of
other public health programs (P.L. 97-35). Although information
about the use of the MCH Block Grant funds is difficult to obtain,
there have been a number of reports that lead screening activities
have been greatly reduced in several States since the repeal of the
Lead-Based Paint Poisoning Prevention Act and the creation of the
MCH Block Grant. For example, a 1984 General Accounting Office
(GAO) study on the MCH Block Grant (GAO/HRD-84-35) found
that lead screening projects had received “the greatest reduction in
emphasis.” And a 1987 survey by the National Center for Educa-
tion in Maternal and Child Health indicated that 10 States had no
lead poisoning prevention activities at all.
With the publication of the Public Health Service’s report, “The
Nature and Extent of Lead Poisoning in Children in the United
States: A Report to Congress,” it is now clear that America’s lead
poisoning problem is still quite significant. Up to one million chil-
dren—one out of every 15—below 2p six have high blood lead
levels. Most of them will go undetected and untreated, however, be-
cause of structural and financial constraints that have been placed
on various public health programs. Without a targeted Federal
effort designed specifically to address this devastating and expen-
sive public health problem, there can be little expectation of
making important—and long overdue—progress in the near future.
HEARINGS
The Committee’s Subcommittee on Health and the Environment
held 1 day of oversight hearings on the proposed changes to the
Safe Drinking Water Act on December 10, 1987, and 1 day of legis-
lative hearings on H.R. 4939 on July 13, 1988. Testimony was re-
ceived from 19 witnesses, representing 17 organizations, with addi-
tional material submitted by 8 individuals and 5 organizations.
The Health Subcommittee also held 1 day of hearings on the
problem of lead poisoning in children and on the importance and
effectiveness of lead poisoning prevention programs on December 2,
1982 (Ser. No. 97-184). Testimony was received from 9 witnesses,
including a representative from the Department of Health and’
Human Services.
CoMMITTEE CONSIDERATION
On August 3, 1988, the Subcommittee on Health and Environ-
ment met in open session and ordered reported the bill H.R. 4939,
as amended, by voice vote. On September 29, 1988, the Committee
met in open session and ordered reported the bill H.R. 4939 with
amendment by voice vote.
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LEGISLATIVE HISTORY
HOUSE REPORT NO. 100-1041
[page 12]
ComMITTEE OVERSIGHT FINDINGS
Pursuant to clause 20X3XA) of rule XI of the Rules of the House
of Representatives, the Subcommittee held oversight hearings and
made findings that are reflected in the legislative report.
CoMMITTEE ON GOVERNMENT OPERATIONS
Pursuant to clause 20X3XD) of rule XI of the Rules of the House
of Representatives, no oversight findings have been submitted to
the Committee by the Committee on Government Operations.
CoMMITTEE COST ESTIMATE
In compliance with clause (a) of rule XIII of the Rules of the
House of Representatives, the Committee believes that the cost in-
curred in carrying out H.R. 4939 would be not more than
50,000,000 for fiscal year 1989, $52,000,000 for fiscal year 1990, and
$54,000,000 for fiscal year 1991.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
U.S. CONGRESS,
CoNGRESSIONAL BupGEeT OFFICE,
Washington, DC, October 8, 1988.
Hon. JouN D. DINGELL,
Chairman, Committee on Energy and Commerce,
U.S. House of Representatives, Washington, DC.
Dear Mg. CHAIRMAN: The Congressional Budget Office has pre-
pared the attached cost estimate for H.R. 4939, the Lead Contami-
nation Control Act of 1988.
If you wish further details on this estimate, we will be pleased to
provide them.
Sincerely,
Yamal BiH
Acting Director.
1. Bill number: H.R. 4939.
2 Bill title: Lead Contamination Control Act of 1988.
3 Bill status: As ordered reported by the House Committee on
Energy and Commerce, September 29, 1988.
H.R. 4939 would authorize the appropriation of
grants to initiate and expend state programs for lead poisoning
screening, treatment and education.
This bill would direct the Environmental Protection Agency
(EPA) to identify and publish a list of the brands and models of
drinking water coolers that are not lead free, including those which
have lead-lined tanks. Further, the bill would prohibit the sale of
those water coolers, and would direct the Consumer Product Safety
Commission (CPSC) to order within one year, manufacturers or im-
rters to repair, replace, or recall and provide a refund for coolers
po
with lead-lined tanks.
5. Estimated cost to the Federal Government:
3800
i
:
¥
¥
i
H
Authorization level...
Estmated outlays...
In addit:
velop a lis
agency ab
required r
the CPSC
year 1989.
The cost
Basis of E:
For the
would be e
priated ea:
authorized
that year.
patterns fc
6. Estim:
require ste
and remec
authorize
for grants
the amour
tration to
costs for t}
and $6 mil
_ Dependii
is found i
exceed the
extent of ¢
es of the House
at hearings and
sport.
es of the House
'n submitted to
perations.
ae Rules of the
hat the cost in-
ot more than
| year 1990, and
CE,
:tober 8, 1988.
Office has pre-
Lead Contami-
11 be pleased to
L. BLum,
ting Director.
88.
+ Committee on
ppropriation of
1ssist schools in
Irinking water.
hree years for
lead poisoning
tection Agency
and models of
‘ng those which
ibit the sale of
Product Safety
‘acturers or im-
‘und for coolers
LEAD CONTAMINATION CONTROL ACT
P.L. 100-572
[page 13]
[By fiscal year, in millon of dollars]
—————
1989 19%0 1991 1952
Authorization level S0 52 54
——
In addition, CBO estimates that the requirement for EPA to de-
velop a list of water collers that are not lead free would cost the
agency about $0.5 million over 3 years. In order to carry out the
required recall of coolers with lead-lined tanks, we estimate that
the CPSC would have to spend about $0.2 million, mostly in fiscal
year 1989. ; :
The costs of this bill fall within budget function 300.
Basis of Estimate
For the purpose of this estimate, CBO assumes that H.R. 4939
would be enacted and that the authorized amounts would be appro-
priated early in fiscal year 1989. We also assume that the amounts
authorized in the bill for each fiscal year would be appropriated in
that year. The outlay estimates are based on historical spending
patterns for similar programs.
6. Estimated cost to State and local government: H.R. 4939 would
require states to establish programs to assist schools in testing for
and remedying lead contamination in drinking water, and would
authorize $30 million annually for fiscal years 1989 through 1991
for grants to states to pay for these programs. The bill would limit
the amount of the grant that could be used for program adminis-
tration to five percent. We estimate that total state administrative
costs for this program would be about $2 million in fiscal year 1989
and $6 million in fiscal years 1990 and 1991.
Depending upon the number of schools where lead contamination
is found in the water, the total cost of remedial actions could
exceed the amounts provided in the bill. CBO cannot predict the
extent of contamination, however, or the type of action that would
be taken to remedy the situation in each case. Because some
schools are already taking steps to remove contamination in drink-
ing water, not all the future costs associated with removing lead
from the drinking water in schools could be attributed to this bill.
The bill would also authorize the appropriation of $20 million in
fiscal year 1989, $22 million in fiscal year 1990, and $24 million in
fiscal year 1991 for grants to states to develop community pro-
grams designed to prevent lead poisoning.
7. Estimate comparison: None.
8. Previous CBO estimate: None. :
9. Estimate prepared by: Marjorie Miller.
10. Estimate approved by: C.G. Nuckols (for James L. Blum, As-
sistant Director for Budget Analysis).
INFLATIONARY IMPACT STATEMENT
Pursuant to clause 2(1X4) of rule XI of the Rules of the House of
Representatives, the Committee makes the following statement
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LEGISLATIVE HISTORY
HOUSE REPORT NO. 100-1041
[page 14]
with regard to the inflationary impact of the reported bill: The bill
will have no impact on inflation.
SECTION-BY-SECTION ANALYSIS
LEAD CONTAMINATION CONTROL ACT OF 1988
Section 1 :
Section 1 provides that this Act may be cited as the Lead Con-
tamination Control Act of 1988. :
Section 2
Section 2 includes provisions addressing contamination problems
from lead-containing water cooler, as well as provisions to address
lead contamination in school drinking water.
Section 2 includes the following amendments to the Public
Health Service Act.
Section 1461
Section 1461 includes definitions for terms used in this part. Sec-
tion 1461(2) defines “lead free” with respect to a drinking water
cooler. This term is defined with regard to the acceptable lead con-
tent of substances in contact with the drinking water. Water cool-
ers are not to be considered “lead free” where, in the course of
usual usage, corrosion is likely to place lead in contact with drink-
ing water, even if there is no direct contact at the time or manufac-
ture. The Administrator is authorized to establish more stringent
requirements for the acceptable lead content. The Committee ex-
pects the Adminstrator to examine carefully the issue of whether
water coolers with brass parts in contact with the water contribute
lead contamination in amounts comparable to other coolers not
considered lead free, in which case they should also be considered
not lead free.
Section 1462
Section 1462 directs the Consumer Product Safety Commssion to
issue an order requiring manufacturers or importers of water cool-
ers with a lead or a lead-lined water reservoir tanks to repair, re-
Place, or recall and provide a refund for, such coolers. This order is
to require that the repair, replacement, or recall and refund action
be completed within one year after enactment.
The Committee expects that the order will be issued promptly
following notice and opportunity for public comment, including a
public hearing, in order to provide sufficient time for the repair,
replacement, or recall and refund, action to be completed within
one year.
Section 1462 reflects a determiantion that water coolers with
lead-lined tanks present an imminent hazard that should be rapid-
ly addressed. EPA reports that eight of twelve tested coolers manu-
factured by Halsey Taylor have lead-solder lined tanks, and that
such coolers are associated with lead contamination levels of 2000
micrograms per liter. This contamination level is 400 times greater
than the 5 microgram per liter standard which the Agency has pro-
posed for lead contamination.
3802
In the oom
signle matter
og have I
by the US. E
the CPSC no
repair, replac
mined that a ©
Section 1468
This section
ers which are
This list is to
ing lead in cc
include on thi
fined in sectic
the course of
tact with drir
time of manu
ministrator tc
with brass pa:
nation in amc
free, in which
The Admin
brand and mc
these coolers
mittee, their
igh priority.
Section 146
of any water «
1988 subcomr
all reported t
not lead free.
such coolers «
1463(b) is int
longer be sol
they distribut
tions 1463(c) ¢
Section 1464
The Comm:
of lead conta
Impacts of ex
opment of ct
Public Healt
vides a thorot
tamination i;
dren each ye:
The recent
soning warns
Ee ————
* US. Public He.
and Extert of Leag
'° United States
Benefit Analysis,”
ted bill: The bill
{988
s the Lead Con-
nation problems
isions to address
+ to the Public
in this part. Sec-
drinking water
aptable lead con-
ater. Water cool-
in the course of
itact with drink-
ime or manufac-
1 more stringent
¢ Committee ex-
issue of whether
water contribute
ther coolers not
so be considered
ty Commssion to
ars of water cool-
aks to repair, re-
ers. This order is
ind refund action
issued promptly
ent, including a
e for the repair,
sompleted within
iter coolers with
. should be rapid-
ed coolers manu-
tanks, and that
ion levels of 2000
400 times greater
> Agency has pro-
LEAD CONTAMINATION CONTROL ACT
P.L. 100-572
(page 15)
In the comment and public hearing stage of the CPSC action, the pl
signle matter at issue concerns whether the coolers in question do
in fact have lead-lined water tanks, and therefore should be listed
by the U.S. EPA under Section 1463. The Committee has.allowed
the CPSC no discretion to take any action other than ordering
repair, replacement, or recall and refund, once it has been deter-
mined that a water cooler has a lead or lead-lined tank.
Section 1468 “
This section directs EPA to publish a list of drinking water cool-
ers which are not lead free within 100 days following enactment.
This list is to specify the brand and model of water cooler contain-
in contact with drinking water. The Administrator is to
include on this list all water coolers which are not lead free as de-
fined in section 1461(2). Water coolers are to be included where, in
the course of usual usage, corrosion is likely to place lead in con-
tact with drinking water, even if there is no direct contact at the
time of manufacture. In addition, the Committee expects the Ad-
ministrator to examine carefully the issue of whether water coolers
with brass parts in contact with the water contribute lead contami-
nation in amounts comparable to other coolers not considered lead
free, in which case they should also be listed as not lead free.
The Administrator is also directed to separately identify each
brand and model of water cooler with a lead or lead-lined tank.
these coolers are considered imminent health hazards by the Com-
mittee, their prompt identification is expected to be treated as a
high priority.
Section 1463(b) includes a prohibition on the manufacture or sale
of any water cooler which is not lead free. In response to a January
1988 subcommittee inquiry, surveyed water coolers manufacturers
all reported that they had halted the sale of any coolers that are
not lead free. (One company, Halsey Taylor, had halted the sale of
such coolers only the previous month.) The prohibition in Section
1463(b) is intended to provide legal certainty that coolers will no
longer be sold which might elevate the level of lead in the water
they distribute. Civil and criminal penalties are established in Sec-
tions 1463(c) and 1463(d) for violation of this prohibition. ;
Section 1464
The Committee is extremely concerned about the health impacts
of lead contamination in school drinking water. The very serious
impacts of exposure to lead on the intellectual and physical devel-
opment of children is well documented. A recently released U.S.
Public Health Service Report on Childhood Lead Poisoning pro-
vides a thorough review.® EPA estimates that exposure to lead con-
tamination in drinking water is keeping more than 240,000 chil-
dren each year from realizing their full intellectua! capacity.'®
The recent Public Health Service Report on Childhood Lead Poi-
soning warns that water usage patterns in schocls—where water
» US. Public Health Service. Agency for Toxic Substances and Disease Registry, “The Nature
and Extert of Lead Puisoning in Children in the United States: A Report to Congress, July 1988.
10 United States Environmental Protection Agency, “Keducing pond in Drinking Water. A
Benefit Analysis,” (1986), p. 24.
3803
ca
m
T
e
r
E
s
a
i
LEGISLATIVE HISTORY
HOUSE REPORT NO. 100-1041
[page 16]
often sits untouched in pipes and water coolers nights, weekends,
and over summer and Christmas vacation—are especially condu-
cive to the accumulation of high lead contamination levels. Surveys
in a number of States, including California, Maryland, Minnesota,
New Jersey, North Carolina, and New Hampshire, have found high
lead levels at tested schools.
Under the program established in section 1464, public and pri-
vate schools in every state are to move as rapidly as possible to test
the lead contamination levels in their water, and take remedial
action as necessary to lower lead levels.
EPA is directed to distribute to the States within 100 days of en-
actment a list of drinking water coolers which are not lead free, as
well as a guidance document and testing protocol. The Committee
intends that the guidance document and testing protocol, as well as
the list of coolers, should assist schools and the general public in
evaluating the level of lead contamination from coolers and tap
water, and in taking remedial action to lower lead levels. States
are directed to distribute this material to local education agencies,
private schools, and day care centers.
States are given nine months after enactment to establish a pro-
gram to assist local education agencies in testing for and remedy-
ing lead contamination problems. These programs are to encom-
pass efforts to eliminate all sources to lead contamination in school
drinking water, including lead solder and lead pipes in school
plumbing, lead service lines, and lead containing water coolers. The
Committee also ex such programs to include efforts to secure
the water supplier's cooperation in lowering the corrosivity of the
drinking water, and therefore its tendency to leach lead. With spe-
cific regard to water coolers that are not lead free, the state pro-
grams are to assure that, within 15 months of enactment, all such
coolers within the jurisdiction of local education agencies are re-
paired, replaced, permanently removed, or rendered inoperable,
unless and found not to coma lead to drinking water.
At least one company, the Water Test Corporation of Manches-
ter, New Hampshire has offered to conduct free lead in drinking
water testing for public and private schools and day care centers
across the nation.
Section 1465
Section 1465 directs the Administrator to establish a grant pro-
fom to assist States in carrying out the school programs under
tion 1464. Grants under this program are to be available to help
defray the costs of testing for lead contamination, and remedial
action including efforts to remove lead pipes or solder, or to repair,
replace, permanently remove, or render inoperable water coolers
that are not lead free. No more than five percent of the grant
funds are to be used for program administration. Funds authorized
for this grant program are $30,000,000 for fiscal year 1989,
$30,000,000 for fiscal year 1990, and $30,000,000 for fiscal year 1991.
Section §
Section 3 establishes a program of technical and grant assistance
for the initiation and expansion of projects to detect and prevent
lezd poisoning in infants and children, regardless of its source.
3804
I
V
R
Grants are to
which must aj
and Human Se
retary is to g1
intend to serve
blood levels in
legislation aut
1990; and $24 r
As the legis]
to provide a m
ices to identify
(2) referral ser
of, and the er
with such bloo
ices to inform
ment, and pre
believes that €
an effective le:
plicants provic
for providing €
other, addition
application as
Among the 1
those for the °
and environme
medical treatr
sources, the le
priated under
Nonetheless.
children for le
tive are not gi
ronmental int
expected to pr
ate treatment
available and :
Once fundec
and children -
various medic
the State Mec
mandates tha
these two prog
can have easy
families with
or environme
have the oppo
of lead and, +
their children’
The Commi
grant funds b
poisoning prev
to continue ¢
being support.
should come -
Child Health
ts, weekends,
«cially condu-
ve found high
iblic and pri-
ossible to test
ake remedial
)0 days of en-
t lead free, as
1e Committee
sol, as well as
ral public in
Jlers and tap
levels. States
tion agencies,
tablish a pro-
and remedy-
re to encom-
tion in school
es in school
r coolers. The
rts to secure
osivity of the
ad. With spe-
‘he state pro-
sent, all such
;ncies are re-
d inoperable,
iter.
1 of Manches-
1 in drinking
' care centers
. a grant pro-
grams under
alable to help
and remedial
, or to repair,
water coolers
of the grant
ds authorized
| year 1989,
cal year 1991.
int assistance
. and prevent
of its source.
LEAD CONTAMINATION CONTROL ACT
P.L. 100-572
[page 17]
Grants are to be made available to State and local governments
which must apply to the Secre of the Department of Health
and Human Services for approval. In making such grants, the Sec-
retary is to give priority to those applications for programs that
intend to serve geographic areas with a high incidence of elevated
blood levels in infants and children. To carry out this purpose, the
legislation authorizes $20 million in FY 1989; $22 million in FY
1990; and $24 million in FY 1991. ’
As the legislation makes clear, grant projects must be designed
to provide a minimum of three types of services: (1) screening serv-
ices to identify infants and children with elevated blood Icad levels;
(2) referral services to provide access to program for the treatment
of, and the environmental intervention for infants and children
with such blood levels; and (3) outreach and public education serv-
ices to inform families and communities about the dangers, treat-
ment, and prevention of childhood lead poisoning. The Committee
believes that each of these services is an important component of
an effective lead poisoning prevention project and intends that ap-
licants provide a detailed and explicit description of their plans
or providing every one of them. A full and complete description of
other, additional services to be provided should be included in an
application as well. ;
Among the required services, the Committee takes special note of
those for the purposes of making referrals for medical treatment
and environmental intervention. Because monies are available for
medical treatment and remedial environmental action from other
sources, the legislation does not allow grantees to use funds appro-
priated under this new program to pay for these activities.
Nonetheless, the Committee believes that testing infants and
children for lead poisoning will do little good if those who test posi-
tive are not given access to sources of medical treatment and envi-
ronmental intervention for the disease. Applicants are, therefore,
expected to provide assurances to the Secretary that both appropri-
ate treatment and environmental intervention programs ill be
available and accessible in the proposed project area.
Once funded, grantees are required to furnish families of infants
and children with elevated blood lead levels with information on
various medical service providers, including information on both
the State Medicaid and Title V programs. Indeed, the legislation
mandates that grantees coordinate their screening projects with
these two programs so that individuals who are eligible for services
can have easy access to them. Grantees are also required to provide
families with information on any relevant State and local housing
or environmental programs. With such information, families will
have the opportunity to get expert assistance in identifying sources
of lead and, when possible, in removing this health hazard from
their children’s environment.
The Committee also emphasizes the legislation’s mandate that
grant funds be used only to initiate new, or expand current, lead
poisoning prevention programs. Grants may not be awarded simply.
to continue on-going lead poisoning prevention efforts that are
being supported through other sources. Such maintenance of effort
should come from funds made available under the Maternal and
Child Health Block Grant, the Preventive Health and Health Serv-
3805
afi etl
He
at
83
B3:
Et
hd:
Li
o
L
t
m
l
;
r
o
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R
I
4
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o
h
A
E
S
s
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—
—
a
a
wat
m
E
LEGISLATIVE HISTORY
HOUSE REPORT NO. 100-1041
[page 18]
ices Block Grant, and other Federal, State, and local programs. The
purpose of this program is to provide the start-up or expansion
costs for lead poisoning prevention projects that might not other-
wise be affordable to States and local governments. It is not intend-
ed to replace currently appropriated State and local dollars for lead
poisoning activities with new Federal dollars for the very same
purposes.
To monitor compliance with this requirement, as well as to
evaluate the effectiveness of the projects funded, the legislation
specifies that each grantee must report on a quarterly basis on the
number of infants and children screened for elevated blood lead
levels; the number of infants and children found to have elevated
blood lead levels; the number and t of referrals made for such
infants and children; the outcome of such referrals; and any other
information required by the Secretary. Such material and data are
important both for measuring the amount of lead poisoning within
our youngest population groups and for determining the value and
appropriateness of the projects receiving grant funds.
Finally, the Committee notes that H.R. 4939 instructs the Secre-
tary to act through the Centers for Disease Control (CDC) in award-
ing grant funds and in otherwise carrying out the requirements of
the legislation. CDC has long been involved with lead poisoning
prevention activities and has had a great deal of experience with
tate and local projects. Thus, the Committee believes strongly
that the CDC is the agency within the Department of Health and
Human Services that is best equipped and best prepared to admin-
ister this new program.
Section 4
Section 4 of the Act directs the Administrator to assure that pro-
grams for certifying laboratories which test drinking water sup-
plies for lead certify only those laboratories providing reliable and
accurate testing. The Administrator is further directed to publish
and make available to the public upon request the list of laborato-
ries certified under this section.
Section 5
Section 5 of the Act includes a conforming amendment to Section
1445 of the Safe Drinking Water Act. This amendment provides
that persons who manufacture, distribute, sell or import drinking
water coolers in interstate commerce are to be treated as water
suppliers for purpose of the records and inspection authorities
under section 1445.
para
via
no
d
od
er
,
i
od
R
r
V
i
d
e
I am ple
taking an ¢
lead contan
Contaminat
mony that
the past wi
present inf
limited to ¢
in the ma:
seeking to :
that the ve
es some of
tion of the
tant that «
manufactu:
This shoulc
list that m
mation. W:
comment &
the produc
we do not -
free” wate:
I also an
overly bro:
water cool
or recall fo
tionable la:
nents whic
corrosion u
listing of tl
Finally,
tempts to }
thus avoid
This is im;
as soon as
LEAD CONTAMINATION
CONTROL ACT
P.L. 100-572
[page 25]
SUPPLEMENT
I am pleased that the Energy and Commerce Committee i8
taking an active role in trying to address
i =
lead contamination in drinking water through H.R.
Contamination Control Act of 1988. We have heard disturbing testi-
mony that one manufacturer may ve produced water coolers in
the past with tanks that are lined with Jead<contaminated
tin.
present information in
i i
limited to one manufacturer and that it was
d that the committee is
in the manufacturing
process.
i i matter, and I am especially ple
yrograms. The
or expansion
ght not other-
- is not intend-
{ollars for lead
;he very same
as well as to
the legislation
that the vers
es some of the con
tion of the list of lead-cont
aminat coole
11 parties, including publi
yoisoning W1
g the value and
tant that we allow a
manufacturers,
the opportunity
tructs the Peers
This should significantly reduce the likelihood of EPA publishing a
.(CDC) in Svar p
list that may not be entirely accurate use of incomplete infor-
: requiem 0
mation. We also have included language that provides for public
h lead poisonifié
comment and a hearing prior to CPSC action to require a recall 0
t to eliminate the problem water coolers,
the product. While we wan
facturers who make ‘“lead-
* experience with
believes strongly
[
nt of Health and
harm innocent manu
cepared to admin-
we do not want to
free’ water coolers.
I also am pleased that the committee-adopt
ed version eliminated
overly broad language that could have brought even “lead-free
water coolers under the provisions requiring repair, replacement,
or recall for potential lead contamination. By eliminating the objec-
tionable language, We have made clear that brass and other compo-
nents which have limited lead content but which are not subject to
1 circumstances are not intended to trigger a
to assure that pro-
inking water sup:
riding reliable and
jirected to publish
he list of laborato- Finally,
tempts to have the Senate
thus avoid a conference in these las
This is important legislation that should be passed by both bodies
.endment to Section
mendment provides
as soon as possible.
or impo drinking
be treated as water
spection authorities
SUPPLEMENTAL DECLARATION OF DR. JOHN F. ROSEN
I, Dr. John F. Rosen, declare and say:
1. The facts set forth herein are personally known to me
and I have first hand knowledge of them. If called as a witness,
I could and would testify competently thereto under oath.
2.3 am familiar with the 1987 American Academy of
Pediatrics ("Academy") "Statement On Childhood Lead Poisoning"
and was acknowledged in the document for assisting in its
preparation. This Statement, the first in approximately ten
years issued by the Academy on the issue of lead poisoning in
children, followed the issuance in 1985 of a statement on
childhood lead poisoning by the Centers for Disease Control's
("CDC") Lead Advisory Committee, of which I was then, and am
currently, chairperson. Because the Academy's Statement was
intended to follow the recommendations of the CDC report, the
work of our 258 committee formed much of the basis for the
Academy's conclusions and recommendations.
3. Our CDC committee's recommendations on lead screening
were cited and followed in the Academy's statement. Indeed, the
Academy explicitly based its screening recommendations for
practitioners on "recent CDC recommendations," and concluded that
"ideally all preschool children should be screened for lead
absorption by means of the erythrocite protoporphyrin test."
This recommendation arose out of the urgency of the current
health crisis presented by pervasive lead poisoning among young
children in the United States today.
L} -
4. The Academy's Statement applies this recommendation to
all children. Although the Academy also prescribed "priority
guidelines" regarding risk factors to assist pediatricians in
deciding which children to screen, one or more of the risk
factors identified are almost invariably present in young
Medicaid-eligible children. These children are characterized by
many of the variables that indicate risk, such as old or
dilapidated housing, housing located near lead-producing
facilities or hazards, poor nutrition, inadequate school
performance, siblings or playmates with known lead toxicity, and
parents who participate in a lead-related occupation or hobby.
In fact, over 90% of the young children that we treat for lead
poisoning in our Montefiore clinic or admit to the hospital are
Medicaid recipients. Remarkably, the 1976-80 NHANES II Survey
1976-80 found that African-American children from poor families
are nine times more likely to suffer lead poisoning than
comparable white children.
5. In light of these circumstances, it would be a gross
distortion of the Academy's Statement to interpret it as
recommending anything less than mandatory testing of young
Medicaid-eligible children, both because they are as a class
unquestionably at increased risk of lead exposure and lead
poisoning and because of the vastly different circumstances that
affluent children may face. Young poor children fall squarely
within the priority group for lead testing as defined both by the
CDC and by the American Academy of Pediatrics. Accepted
professional medical standards, therefore, require mandatory lead
screening through EP or other blood test for this population as
an essential element of any effective lead poisoning prevention
and treatment program.
117
/17
ll]
117
117
117
1117
/11/
11/
[11
111
117
[11
[1/1]
117
1117
117
1117
117
117
117
/11/
Executed at Bronx, New York this 2May of June 1991.
I declare under penalty of perjury that the foregoing is
true and correct.
SX lf
R. JOHN F. ROSEN
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DECLARATION OF MARK D. ROSENBAUM
I, MARK D. ROSENBAUM, declare as follows:
1. On June 12, 1991, I spoke by telephone with Raymond Koteras.
I read to Mr. Koteras the first paragraph on page 7 of the
Opposition Memorandum. That paragraph states as follows:
Finally, Plaintiffs attempt to show that the Department's
position regarding lead toxicity testing is arbitrary and
out-of-step with accepted medical practice. This is
simply not true. As shown in Dr. Gregory's Declaration,
the Department's position is consistent with the current
position of the American Academy of Pediatrics. While
that position is currently under review, the fact that
the Academy recognizes physician discretion in the use of
lead toxicity tests for children in and of itself belies
any possible conclusion that the Department's position is
arbitrary or that it represents unacceptable medical
practice. (Footnote omitted.)
2. Mr. Koteras volunteered to me that he is not a physician and
is "certainly not a lead toxicity expert." He told me that he is
a "staff person" with responsibilities to several committees. He
also volunteered that he regarded himself as "not equipped to
discuss the pros and cons of screening," and not knowledgeable as
to the "medical management of children relating to lead toxicity."
He volunteered that he was "not involved in the development" of the
Academy position on lead toxicity.
3. Mr. Koteras volunteered to me that he had received telephone
calls from both Dr. Gregory and Mr. Van Wye. Mr. Koteras stated
that Mr. Van Wye had asked him to supply a declaration and that he
1
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told Mr. Van Wye that it was "not appropriate [for him] to give a
declaration."
4. Mr. Koteras volunteered that he had never said to either Dr.
Gregory or Mr. Van Wye that the State of California was "doing what
the Academy recommends." When I first asked Mr. Koteras whether
the quoted statement from DHS's brief represented the Academy's
position, he said "I don't think so." He followed up by saying, "I
do not see it in the statement." He said that neither Dr. Gregory
nor Mr. Van Wye had conveyed the "detailed specifics of their
position." Mr. Koteras repeatedly told me that he believed it
inappropriate for him in his position to "confirm or refute any
position." He stated that if "they interpret [my comments] as
confirmation," that is "something they have chosen to do." Mr.
Koteras specifically directed me that portion of the statement
recommending, in his words, "universal screening of all children by
the EP [erythrocyte protoporphrin blood lead level] test." Mr.
Koteras repeatedly told me that the mission of the Academy was
principally directed to all children, and that the statement was
accordingly addressed to all children.
I declare under penalty of perjury that the foregoing is true
and correct. Executed this 13th day of June, 1991 at Los Angeles,
California.
Munk isp baum.
MARK D. ROSENBAUM
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DECLARATION OF SERVICE BY U.S. MAIL
I, HALIMA GIDDINGS, declare:
I am a resident of the County of Los Angeles, California; I
am over the age of eighteen (18) years and not a party to the
within cause of action; I am employed in the County of Los
Angeles, California; and my business address is 633 South Shatto
Place, Los Angeles, California 90005-1388.
On June 14, 1991 I served the foregoing document(s)
described as: SUPPLEMENTAL EXHIBITS IN SUPPORT OF PLAINTIFFS?!
MOTION FOR PARTIAL SUMMARY JUDGMENT on the parties of record in
said cause, by delivering a true and correct copy thereof
enclosed in a sealed envelope addressed as follows:
HARLAN E. VAN WYE LINDA JANE SLAUGHTER
Deputy Attorney General State of California
Department of Justice Department of Health Services
2101 Webster Street Office of Legal Services
Oakland, CA 94612-3049 714 "P" Street, Room 1216
Sacramento, CA 95814
I an "readily familiar" with the office's practice of
collection and processing correspondence for mailing. Under that
practice it would be deposited with U.S. postal service on that
same day with postage thereon fully prepaid at Los Angeles,
California in the ordinary course of business. I am aware that
on motion of the party served, service is presumed invalid if
postal cancellation date or postage meter date is more than one
day after date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct. Executed on June 14, 1991 at Lo