Senator Eliot Shapleigh - El Paso, Texas

A proposal by federal and state environmental agencies that would allow more lead to be left in soils of El Paso homes involved in a $7 million cleanup would violate state regulations, according to an opinion from the Texas attorney general.

The Environmental Protection Agency and the Texas Commission on Environmental Quality have proposed raising the cleanup level from 500 parts per million to 640 ppm. The EPA said raising the level would create no imminent health threat because the lead is in a form that isn't so easily absorbed by the body.

Critics say the proposal would put young children at risk because they are more likely to be exposed when they play in the dirt and put their hands and other objects in their mouths. Lead levels even lower than 500 ppm can result in health problems that include brain and kidney damage, they say.

Attorney General Greg Abbott's opinion, addressed to Sen. Eddie Lucio, D-Brownsville, states that there is a statewide standard of 500 ppm, and changing the level in El Paso would be "arbitrary and capricious." However, the opinion goes on to say that TCEQ could change the rule for statewide cleanups as long as it follows proper procedures.

"We're still reviewing it (the opinion) to determine what our next step will be," Adria Dawidczik, a TCEQ spokeswoman in Austin said Friday.

The change was originally proposed by the EPA, but the TCEQ supported it, Dawidczik said.

Cynthia Fanning, an EPA spokeswoman in Dallas, said her agency also is reviewing the opinion. "We are not prepared to comment," she said.

Fanning said the agency expects to make a final decision on the proposal next month.

The EPA has cleaned soil in hundreds of homes in the West El Paso area. Levels as high as 1,500 ppm were found in a few soil samples. The agency has said that the contamination is mainly from a 100-year-old copper smelter owned by ASARCO that ceased operation in 1999 when the price of copper dropped.

ASARCO officials have said the source of the contamination most likely is lead paint, a pile of finely crushed refinery byproduct called slag that is owned by a neighboring company and other sources.

Lairy Johnson, ASARCO's El Paso plant environmental manager, said the attorney general misunderstood the actions allowed under state law. Johnson said the 640 ppm standard was developed under well accepted scientific practices by city, state and federal agencies.

"Therefore, it is simply wrong to classify the cleanup plan as capricious or arbitrary," he said.

However, the United Steelworkers of America, a union that represented workers at the plant before it closed, has said EPA data collected in El Paso shows elevated blood lead levels in children exposed to soil with more than 500 ppm of lead.

The union "remains committed to helping to ensure a stringent cleanup standard is adopted that will protect El Paso children from lead poisoning," said spokesman Adam Lee.

Johnson has said El Paso has one of the lowest percentages of elevated blood lead in children up to 6 years old in major urban populations across the entire state.