Paint-lead hazard standard – A reconsideration

Tom Neltner, J.D., is Chemicals Policy Director

After 20 years working on lead poisoning prevention, it has become almost second nature for me to object when someone suggests that children eating paint chips is a significant route of exposure. All too often, the claim implies that the blame rests with parents who are not conscientious enough to clean or maintain their home or to properly care for their children. The implication is demeaning to the parents and distracts from the often – invisible lead dust hazards on floors that pose the greatest risk to children. So when I hear that idea, I quickly respond that dust is the key route of exposure.

However, a discussion with Hannah Chang at Earthjustice over my blog on the Environmental Protection Agency’s (EPA) July 2, 2018 proposed rule helped me realize that I was misguided with regards to defining the hazards of lead-based paints. She is the main attorney for the organizations that convinced a panel of judges in the Ninth Circuit Court of Appeals to order the EPA to update its lead-based paint hazard standard.

Hannah Chang told me I missed the most compelling point when I pointed out in my previous blog that “EPA did not appear to have considered HUD’s 2007 American Healthy Housing Survey, which should provide a solid basis for identifying the relationship between lead in paint and lead in dust.”  She was right; my logic was too focused on dust as the primary source of exposure. Here is my reasoning; it may be helpful to those planning to submit comments to EPA by the August 16 deadline on the proposed rule.

EPA’s 2001 lead-based paint hazards standard at 40 CFR 745.65 establishes three types of lead hazards: paint, dust and soil. The agency was directed by the court to revise the definition of paint- and dust-lead hazards but proposed changing only the definition of dust-lead hazards. For paint, EPA reasoned that it lacks sufficient information “to establish a statistically valid causal relationship between concentrations of lead in paint (lower than the current definition) and dust-lead loadings which cause lead exposure.”[1] The agency said it “would need to further explore the availability and application of statistical modeling approaches that establish robust linkages between the concentration of lead in paint below the current definition and floor dust and [blood lead level] before EPA could develop a technically supportable proposal to revise the definition of [lead-based paint].”

Clearly, EPA fell into the same trap I did; the agency connected paint-lead hazards to dust and did not consider that the standard is primarily focused on the risk of children eating paint chips.

The rule defines a paint-lead hazard as one of four conditions. One condition is “Any chewable lead-based painted surface on which there is evidence of teeth marks.”[2] Therefore, EPA is claiming that it has insufficient evidence to show that paint with between 5,000 and 600 ppm of lead would harm a child who chewed (and presumably swallowed) the paint. If the child ate no more than one square centimeter – about the size of a fingernail – the child would ingest at least 1,000 micrograms of lead.[3] This is equivalent to a child wiping and eating all the dust from 100 square feet of flooring under the proposed standard of 10 micrograms per square foot. Remember, the risk assessment would only find a hazard for the paint that is on a chewable surface with evidence of chewing.

Another condition is when paint on an impact surface is damaged or otherwise deteriorated. The rule gives two examples: a door knob that knocks into a wall or a door that knocks against the door frame. It is not a leap of logic to imagine that a child might ingest the paint chip loosened by the impact.

Similarly, a third condition is when a risk assessor finds dust-lead hazards and must evaluate nearby paint above the floor to determine if it is subject to abrasion. I have seen this on the inside track of a window frame, a door rubbing against a door frame, or a chair rubbing on a painted floor. Under EPA’s reasoning, a risk assessor would only find the abraded paint to be a paint-lead hazard if it contains more than 5,000 ppm of lead. When a dust-lead hazard is already found in a child-care center, why would EPA not want the risk assessor to use a lower threshold to determine whether the center has paint needs to be removed?

The final condition is “Any other deteriorated lead-based paint in any residential building or child-occupied facility or on the exterior of any residential building or child-occupied facility.”[4] It would only apply to “paint or other coating that is that is peeling, chipping, chalking or cracking, or any paint or coating located on an interior or exterior surface or fixture that is otherwise damaged or separated from the substrate.”[5] As with the other examples, if paint is separated from the substrate, a child is likely to eat it.

The bottom line is that for purposes of defining a paint-lead hazard, EPA already has sufficient evidence to tighten the definition of lead-based paint. At the very least, the definition should be lowered to mirror the definition of lead-based paint that the Consumer Product Safety Commission (CPSC) used when it banned lead-based paint in 1978—that is, paint containing at least 600 ppm of lead. Since the 2009 petition that prompted the court order, CPSC has lowered the level from to 90 ppm based on the risk posed by a child ingesting the paint. When defining paint-lead hazards, EPA should use at least 600 ppm and consider lowering it to 90 ppm to be consistent with CPSC.

[1] 83 Federal Register 30889, July 2, 2018 at 30897.

[2] 40 CFR 745.65(a)(3).

[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.

[4] 40 CFR 745.65(a)(4).

[5] 40 CFR 745.63.