Lead-based paint hazard standard – EPA takes step forward then fumbles

Tom Neltner, J.D., Chemicals Policy Director

On December 21, 2020, EPA signed a final rule setting the lead-based paint dust clearance standard to match the hazard standard in June 21, 2019 of 40 µg of lead in dust per ft² on floors and 250 µg of lead in dust per ft².

Note that President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis directs agencies to review the former administration’s regulations and actions, including the lead-based paint hazard standard. 

Last Friday, pursuant to a court order, the Environmental Protection Agency (EPA) signed a final rule[1] tightening its standards for lead in dust on floors and window sills for housing and child-occupied facilities built before 1978.  The agency essentially finalized the version it proposed a year ago despite failing to address significant concerns from the lead poisoning prevention community.

While the rule is a long overdue step forward, the agency fumbled its responsibilities in several critical areas:

• Failed to make a corresponding change to its cleanup standard[2] – leaving the consumer in a bizarre situation in which an abatement contractor would be allowed to leave identified lead risks behind.  By failing to update the cleanup standard, EPA has created a loophole, which the agency plans to address through a new rulemaking to fix the problem – not scheduled to be finished until 2021. We explained the absurdity of this situation in a previous blog.
• Refused to tighten the lead in paint standard.  During the proposed rule phase, EDF and other advocates argued that the paint standard needed to be tightened where the paint was likely to be ingested by a child (e.g., evidence of teeth marks, it was already damaged or deteriorated, or subject to abrasion).  As we explained in a previous blog, under the current standard, if a child ate a paint chip about the size of a fingernail, the child would be at serious risk of severe lead poisoning.[3]  The agency declined to act largely because it believed it was unable to estimate how much paint a child might typically eat.  We think the agency had sufficient information to act.
• Ignored calls to tighten standard for lead in soil.  In the final rule, EPA notes that in March 2017, its Children’s Health Protection Advisory Committee recommended “that EPA, in coordination with HUD, make strengthening the Lead-Based Paint Hazards Standards for paint, dust, and soil one of its highest priorities in the efforts to reduce children’s blood lead levels.” (emphasis added)  Unfortunately, the agency gives no consideration to tightening standards for lead in soil despite calls in comments on its proposed rule.

Despite these limitations, the final rule is a step forward.  The agency’s economic analysis of the decision cites annualized benefits from $268 million to $2.3 billion with costs of $32 to $117 million.  However, for an agency that claims to be make reducing lead exposure a high priority, it reveals that the agency struggles with the translating its talk into action, leaving another problem for the next administration to cleanup.

[1] The final rule is the rulemaking docket.

[2] Clearance levels are defined as “values that indicate the maximum amount of lead permitted in dust on a surface following completion of an abatement activity.” 40 C.F.R. § 745.223.

[3] Lead-based paint is defined as paint with more than 5,000 ppm or 1,ooo micrograms of lead per square centimeter of paint. See 40 CFR 745.103.  We used the 1000 µg/cm² for our calculation.  EPA typically estimates that more than half of the lead in paint is absorbed by a child’s body and enters the blood stream.  At these levels, a child may warrant medical treatment according to CDC guidelines.