[Federal Register Volume 85, Number 122 (Wednesday, June 24, 2020)]
[Proposed Rules]
[Pages 37810-37819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13582]
[[Page 37810]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[EPA-HQ-OPPT-2020-0063; FRL-10009-95]
RIN 2070-AK50
Review of Dust-Lead Post-Abatement Clearance Levels
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Reducing childhood lead exposure is a priority for EPA. As
part of EPA's efforts to reduce childhood lead exposure, backed by the
President's Task Force on Environmental Health Risks and Safety Risks
to Children, EPA evaluated the current dust-lead clearance levels
(DLCL). Clearance levels are currently defined as the maximum amount of
lead permitted in dust on a surface following completion of an
abatement activity. Surface dust is collected via dust wipe samples
that are sent to a laboratory for analysis. The post-abatement dust-
lead levels must be below the clearance levels. The DLCL have not
changed since they were issued in 2001. EPA is now proposing to lower
the DLCL from 40 micrograms of per square feet ([mu]g/ft\2\) and 250
[mu]g/ft\2\ to 10 [mu]g/ft\2\ and 100 [mu]g/ft\2\ for floors and window
sills, respectively.
DATES: Comments must be received on or before August 24, 2020
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2020-0063, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute.
Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460-0001.
Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.html.
Please note that due to the public health emergency the EPA Docket
Center (EPA/DC) and Reading Room was closed to public visitors on March
31, 2020. Our EPA/DC staff will continue to provide customer service
via email, phone, and webform. For further information on EPA/DC
services, docket contact information and the current status of the EPA/
DC and Reading Room, please visit https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: For technical information contact:
Claire Brisse, National Program Chemicals Division, Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 202-
564-9004; email address: [email protected]. These phone numbers may
also be reached by individuals who are deaf or hard of hearing, or who
have speech disabilities, through the Federal Relay Service's teletype
service at 800-877-8339.
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this action if you conduct Lead-
Based Paint (LBP) activities in accordance with 40 CFR 745.227, if you
operate a training program required to be accredited under 40 CFR
745.225, if you are a firm or individual who must be certified to
conduct LBP activities in accordance with 40 CFR 745.226, or if you
conduct rehabilitations or maintenance activities in most pre-1978
housing that is covered by a Federal housing assistance program in
accordance with 24 CFR part 35. You may also be affected by this action
if you operate a laboratory that is recognized by EPA's National Lead
Laboratory Accreditation Program (NLLAP) in accordance with 40 CFR
745.90, 745.223, 745.227, 745.327. You may also be affected by this
action, in accordance with 40 CFR 745.107 and 24 CFR 35.88, as the
seller or lessor of target housing, which is most pre-1978 housing. See
40 CFR 745.103 and 24 CFR 35.86. The following list of North American
Industrial Classification System (NAICS) codes is not intended to be
exhaustive, but rather provides a guide to help readers determine
whether this document applies to them. Potentially affected entities
may include:
Building construction (NAICS code 236), e.g., single-
family housing construction, multi-family housing construction,
residential remodelers.
Specialty trade contractors (NAICS code 238), e.g.,
plumbing, heating, and air-conditioning contractors, painting and wall
covering contractors, electrical contractors, finish carpentry
contractors, drywall and insulation contractors, siding contractors,
tile and terrazzo contractors, glass and glazing contractors.
Real estate (NAICS code 531), e.g., lessors of residential
buildings and dwellings, residential property managers.
Child day care services (NAICS code 624410).
Elementary and secondary schools (NAICS code 611110),
e.g., elementary schools with kindergarten classrooms.
Other technical and trade schools (NAICS code 611519),
e.g., training providers.
Engineering services (NAICS code 541330) and building
inspection services (NAICS code 541350), e.g., dust sampling
technicians.
Lead abatement professionals (NAICS code 562910), e.g.,
firms and supervisors engaged in LBP activities.
Testing laboratories (NAICS code 541380) that analyze dust
wipe samples for lead.
Federal agencies that own residential property (NAICS code
92511, 92811).
Property owners, and property owners that receive
assistance through Federal housing programs (NAICS code 531110,
531311).
B. What is the Agency's authority for taking this action?
EPA is proposing this rule under sections 401 and 402 of the Toxic
Substances Control Act (TSCA), 15 U.S.C. 2601 et seq., as created by
Title X of the Housing and Community Development Act of 1992 (also
known as the ``Residential Lead-Based Paint Hazard Reduction Act of
1992'' or ``Title X'') (Pub. L. 102-550) (Ref. 1).
TSCA section 402 (15 U.S.C. 2682) directs EPA to regulate LBP
activities, which include risk assessments, inspections, and
abatements. TSCA section 401 (15 U.S.C. 2681) defines abatements as
``measures designed to permanently eliminate lead-based paint hazards''
and the term includes ``all . . . cleanup . . . and post[-]abatement
clearance testing activities'' (15 U.S.C. 2681(1)). EPA is further
directed, in promulgating the regulations, to ``tak[e] into account
reliability, effectiveness, and safety'' (15 U.S.C. 2682(a)(1)).
C. What action is the Agency taking?
Clearance levels are currently defined as ``the maximum amount of
lead permitted in dust on a surface following
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completion of an abatement activity'' (40 CFR 745.223). Surface dust is
collected via dust wipe samples that are sent to a laboratory for
analysis. The post-abatement dust-lead levels must be below the
clearance levels, which are the standard used to evaluate the
effectiveness of post-abatement cleanings. In 2001, EPA originally
established DLCL of 40 [mu]g/ft\2\ for floors, 250 [mu]g/ft\2\ for
window sills and 400 [mu]g/ft\2\ for window troughs in a final rule
entitled, ``Identification of Dangerous Levels of Lead.'' See 66 FR
1206, January 5, 2001, also known as the 2001 LBP Hazards Rule (Ref.
2). EPA is proposing to revise the DLCL, set by the 2001 LBP Hazards
Rule, from 40 [mu]g/ft\2\ to 10 [mu]g/ft\2\ for floor dust and from 250
[mu]g/ft\2\ to 100 [mu]g/ft\2\ for window sill dust. As explained
elsewhere in this preamble, EPA is not proposing to revise the DLCL for
window troughs at this time. The proposed DLCL of 10 [mu]g/ft\2\ on
floors and 100 [mu]g/ft\2\ on window sills would not apply
retroactively; that is, this proposed rule would not impose retroactive
requirements on regulated entities that have previously performed post-
abatement clearance testing using the original DLCL of 40 [mu]g/ft\2\
on floors or 250 [mu]g/ft\2\ on window sills. While EPA's dust-lead
hazard standards (DLHS) do not compel property owners to evaluate their
property for hazards or take control actions (40 CFR 745.61(c)), if
someone opts to perform a lead-based paint activity such as an
abatement, then EPA's regulations set requirements for doing so (40 CFR
745.220(d)). This proposed rule, if finalized, would require
individuals and firms who perform an abatement to achieve the proposed
DLCL at 10 [mu]g/ft\2\ on floors and 100 [mu]g/ft\2\ on window sills at
the end of the abatement, which the 2019 rule updating the DLHS
(``Review of the Dust-Lead Hazard Standards and the Definition of Lead-
Based Paint,'' 84 FR 32632, July 9, 2019 (FRL-9995-49), also known as
the 2019 DLHS Rule) did not require under EPA's regulations (Ref. 3).
EPA is requesting comment on the appropriateness of the proposed, lower
DLCL for both floors and window sills.
EPA is also proposing to clarify language that defines the
achievement of post-abatement clearance, which explains what dust-lead
levels are permitted on a surface following an abatement that would
achieve clearance. The post-abatement clearance procedures set forth in
40 CFR 745.227 state that clearance is not achieved when post-abatement
dust-lead levels (which are a measure of the mass of lead per area,
commonly expressed in micrograms per square foot ([mu]g/ft\2\)) equal
or exceed the clearance levels (40 CFR 745.227(e)(8)(vii)). However, 40
CFR 745.223 defines clearance levels as ``the maximum amount of lead
permitted in dust on a surface following completion of an abatement
activity'' (40 CFR 745.223) (emphasis added). To resolve this
discrepancy, EPA is proposing to conform the definition of clearance
levels found in 40 CFR 745.223 to the post-abatement clearance
procedures in 40 CFR 745.227, in order to clarify in the definition
that the post-abatement dust-lead levels must be below the clearance
levels.
EPA is requesting comments on all aspects of this proposal,
including the window sill clearance options (40 [mu]g/ft\2\, 60 [mu]g/
ft\2\, 80 [mu]g/ft\2\ and 100 [mu]g/ft\2\) as presented in EPA's
Technical Support Document that accompanies this proposal (Ref. 4).
D. Why is the Agency taking this action?
Reducing childhood lead exposure is an EPA priority. EPA continues
to collaborate with its federal partners to reduce lead exposures and,
in so doing, to explore ways to strengthen its relationships and
partnerships with states, tribes, and localities. In December 2018, the
President's Task Force on Environmental Health Risks and Safety Risks
to Children released the Federal Action Plan to Reduce Childhood Lead
Exposures and Associated Health Impacts (Lead Action Plan) (Ref. 5) to
enhance the Federal Government's efforts to identify and reduce lead
exposure while ensuring children impacted by such exposure are getting
the support and care they need to prevent or mitigate any associated
health effects. The Lead Action Plan is helping Federal agencies work
strategically and collaboratively to reduce exposure to lead and
improve children's health. Considering revisions to the DLCL is an
action that EPA, in the Action Plan, committed to undertake given the
importance of childhood lead exposure; dust-lead is a significant
source of exposure for young children (Ref. 6).
In the 2001 LBP Hazards Rule, EPA first established the DLHS that
identify dust-lead hazards and the clearance levels used to evaluate
the effectiveness of cleaning following an abatement. Abatements are
designed to permanently eliminate LBP hazards including dust-lead
hazards.
In 2019, EPA re-evaluated the DLHS (Ref. 3). Based on that
evaluation, the final rule revised the DLHS from 40 [mu]g/ft\2\ and 250
[mu]g/ft\2\ to 10 [mu]g/ft\2\ and 100 [mu]g/ft\2\ on floors and window
sills, respectively. EPA based that decision on the best available
science, the Agency's review of public comments received on the
proposal for that rule, and consideration of the potential for risk
reduction, including whether such actions were achievable.
At that time, EPA focused its rulemaking on the DLHS and the
definition of LBP, which were the two actions that EPA had agreed to
undertake in response to a 2009 citizen petition (Ref. 7). In that
rulemaking, EPA did not propose to change DLCL in 40 CFR part 745,
subpart L. However, EPA recognizes the important relationship between
the DLHS and DLCL: The DLHS are used to identify dust-lead hazards and
the DLCL are used to demonstrate that specific abatement activities
have effectively and permanently eliminated those hazards. Therefore,
the purpose of this rulemaking is to update the DLCL so that attaining
these clearance levels demonstrate elimination of dust-lead hazards
under the new standards. Accordingly, EPA is now proposing to lower the
DLCL for floor dust to 10 [mu]g/ft\2\, and to lower the DLCL for window
sill dust to 100 [mu]g/ft\2\, taking into account reliability,
effectiveness, and safety.
E. What are the estimated incremental impacts of this action?
EPA has prepared an Economic Analysis (EA) of the potential
incremental impacts associated with this rulemaking (Ref. 8) on a
subset of target housing (i.e., most pre-1978 housing) and child-
occupied facilities affected by this proposed rule. The analysis, which
is available in the docket, estimates incremental costs and benefits
for abatements where a dust-lead level is between the current DLCL (40
[mu]g/ft\2\ for floors and 250 [mu]g/ft\2\ for window sills) and
alternate levels, including the proposed DLCL of 10 [mu]g/ft\2\ for
floors and 100 [mu]g/ft\2\ for window sills. Based on HUD data, EPA
estimates that the vast majority of floors and window sills are already
clearing at levels below the proposed DLCL after the completion of an
abatement. In addition, there is uncertainty about whether some state
and local regulations already use the EPA DLHS as DLCL, and about
whether some abatement contractors will voluntarily conduct additional
cleaning to ensure that dust-lead levels fall below the DLHS following
the completion of an abatement. If these situations occur, then the
costs and benefits of meeting the DLCL estimated in the EA would be
attributable to the 2019 DLHS Rule and not to the proposed regulation.
As in the EA for the 2019 DLHS Rule, there is also uncertainty
regarding the
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estimated number of lead hazard reduction events that will be triggered
by children with blood lead levels considered to be elevated. Most
states set a blood lead level value at which an environmental
investigation is recommended or required. Based on guidance posted on
environmental and public health department websites for each state,
these blood lead action levels range from 5 micrograms per deciliter
([mu]g/dL) to 25 [mu]g/dL. In eight states (AK, IN, MD, ME, MI, NE, OR,
and PA) the action level for an environmental investigation is a blood
lead level of 5 [mu]g/dL. Fourteen states (CA, DC, GA, IL, KS, LA, NC,
NH, NJ, NV, OH, TX, VT, WA, and WV) and the District of Columbia use an
action level of 10 [mu]g/dL. Nineteen states (AL, AZ, CO, DE, FL, HI,
IA, ID, KY, MN, MO, MS, NM, NY, RI, SC, UT, VA, and WI) use an action
level of 15 [mu]g/dL. Four states (CT, MA, OK, and TN) use an action
level of 20 [mu]g/dL or above. Five states (AR, MT, ND, SD, and WY)
have no policy recommendation or requirement for the blood lead level
at which an environmental investigation should be conducted. The
differences between states may reflect the prevalence of lead hazards
in each state and their relative prioritization of lead hazards and
other funding needs.
The EPA's analysis includes two scenarios for the number of
instances where clearance testing is performed that will be affected by
the rule: (1) Where dust-lead loadings are tested because a child's
blood lead level equals or exceeds 5 [mu]g/dL (the current Centers for
Disease Control and Prevention (CDC) blood lead reference value (BLRV))
(Ref. 9), and a loading is at or above the DLHS; and (2) where dust-
lead loadings are tested because a child's blood lead level equals or
exceeds the action level set by the state the child lives in, and a
loading is at or above the DLHS.
Consequently, the economic analysis includes a range for the number
of dust lead reduction events possibly affected by this rule changing
the clearance levels. The low end of the range is zero. This could
result, for example, if state or local regulations or voluntary actions
by abatement firms already cause dust-lead levels in all housing not
subject to the LSHR to fall below 10 [mu]g/ft\2\ on floors and 100
[mu]g/ft\2\ on window sills. The upper end of the range is 28,000
events, which assumes that an environmental investigation that includes
testing the dust-lead loadings in their home occurs when a child's
blood lead level equals or exceeds 5 [mu]g/dL. The EA also includes a
scenario based on 6,000 events, which assumes that dust-lead loading
tests occur in all instances when a child's blood lead level equals or
exceeds the state action level. The benefit and cost estimates are
highly sensitive to the range. The following is a brief outline of the
estimated incremental impacts of this rulemaking.
Benefits. Incremental actions to meet the proposed DLCL of
10 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ for window sills after
abatements where a baseline post-intervention loading is between the
current DLCL of 40 [mu]g/ft\2\ for floors and 250 [mu]g/ft\2\ for
window sills and the proposed DLCL would reduce exposure to lead,
resulting in benefits from avoided adverse health effects. In the
economic analysis of this rule, EPA quantified the benefits of reduced
lead exposure to children from avoided Intelligence Quotient (IQ) loss
as an indicator of improved cognitive function and, hence, lifetime
earnings. For the subset of adverse health effects where these effects
were quantified, the estimated annualized benefits are $0 million to
$487 million per year using a 3% discount rate, and $0 million to $106
million per year using a 7% discount rate, with the range representing
the uncertainties discussed above. There are additional unquantified
benefits due to other avoided adverse health or behavioral effects in
children, including attention-related behavioral problems, greater
incidence of problem behaviors, decreased cognitive performance,
reduced post-natal growth, delayed puberty, decreased hearing, and
decreased kidney function (Ref. 10).
Costs. This rule is estimated to affect between 0 and
28,000 events per year that incorporate an abatement activity, and to
result in costs of $0 to $7 million or $0 to $35 million per year using
either a 3% or a 7% discount rate. In most events affected by the
proposed rule additional costs are incurred for specialized cleaning
used to reduce dust-lead loadings to below the clearance levels. In
some instances, floors will be sealed, overlaid or replaced, or window
sills will be sealed or repainted.
Small entity impacts. EPA estimates that this rule may
impact approximately 0 to 10,200 small abatement firms; 0 to 9,000
would have cost impacts estimated at less than 1% of revenues, 0 to
1,000 would have impacts estimated between 1% and 3%, and 0 to 250
would have impacts estimated at greater than 3% of revenues. EPA's
analysis assumes that in all cases the costs are borne entirely by the
lead paint abatement firm (as opposed to being passed through to the
property owner). However, it is more likely that some, or perhaps even
most, of these costs will be passed on to the property owners.
Environmental justice and protection of children. This
rule would increase the level of environmental protection for all
affected populations without having any disproportionately high and
adverse human health or environmental effects on any population,
including any minority or low-income population or children.
Effects on state, local, and tribal governments. The rule
would not have any significant or unique effects on small governments,
or federalism or tribal implications.
F. Children's Environmental Health
Lead exposure has the potential to impact individuals of all ages,
but it is especially harmful to young children because the developing
brain can be particularly sensitive to environmental contaminants
(Refs. 11, 12). Exposure to lead is associated with increased risk of a
number of adverse health or behavioral effects in children, including
decreased cognitive performance, greater incidence of problem
behaviors, and increased diagnoses of attention-related behavioral
problems (Ref. 10). Furthermore, floor dust in homes and child-care
facilities is a significant route of exposure for young children given
their mouthing and crawling behavior and proximity to the floor.
Therefore, the environmental health or safety risk addressed by this
action may have a disproportionate effect on children (Ref. 4).
Consistent with the Agency's Policy on Evaluating Health Risks to
Children (Ref. 13), EPA has evaluated the health effects in children of
decreased lead exposure from the proposed lowering of the DLCL. EPA
prepared a Technical Support Document (TSD) for this rulemaking, which
models dust-lead exposures and estimates both blood lead levels (BLLs)
and associated impacts on IQ at the proposed DLCL of 10 [mu]g/ft\2\ and
100 [mu]g/ft\2\ versus the current DLCL of 40 [mu]g/ft\2\ and 250
[mu]g/ft\2\ for on floors and window sills, respectively (Ref. 4).
While no safe level of lead in blood has been identified (Ref. 5), the
reductions in children's blood-lead levels resulting from this rule are
expected to reduce the risk of adverse cognitive and developmental
effects in children. The TSD shows that health risks to young children
decrease with decreasing dust-lead levels.
[[Page 37813]]
G. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When preparing and submitting
your comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets.html.
II. Background
A. Health Effects
Lead exposure impacts individuals of all ages, but it is especially
harmful to young children because the developing brain can be
particularly sensitive to environmental contaminants (Ref. 11, 12).
Ingestion of lead-contaminated dust is a major contributor to BLLs in
children, particularly those who reside in homes built prior to 1978
(Ref. 14, 15). Infants and young children can be more highly exposed to
lead through floor dust at home and in child-care facilities because
they often put their hands and other objects that can have lead from
dust on them into their mouths (Ref. 12).
Best available science informs EPA's understanding of the
relationships between exposures to dust-lead loadings, BLLs, and
adverse human health effects. These relationships are summarized in the
Integrated Science Assessment for Lead (``Lead ISA'') (Ref. 16), which
EPA released in June 2013, and the National Toxicology Program (NTP)
Monograph on the Health Effects of Low-Level Lead, which was released
by the Department of Health and Human Services in June 2012 (``NTP
Monograph'') (Ref. 10).
The Lead ISA is a synthesis and evaluation of scientific
information on the health and environmental effects of lead, including
cognitive function decrements in children (Ref. 16).
The NTP, in 2012, completed an evaluation of existing scientific
literature to summarize the scientific evidence regarding potential
health effects associated with low-level lead exposure as indicated by
BLLs less than 10 [mu]g/dL. The evaluation specifically focused on the
life stage (prenatal, childhood, adulthood) associated with these
potential health effects, and on epidemiological evidence at BLLs less
than 10 [mu]g/dL, because health effects at higher BLLs are well-
established. The NTP concluded that there is sufficient evidence for
adverse health effects in children and adults at BLLs less than 10
[mu]g/dL, and less than 5 [mu]g/dL as well. The NTP concluded that
there is sufficient evidence that BLLs less than 10 [mu]g/dL are
associated with delayed puberty, decreased hearing, and reduced post-
natal growth. In children, there is sufficient evidence that BLLs less
than 5 [mu]g/dL are associated with increased diagnoses of attention-
related behavioral problems, greater incidence of problem behaviors,
and decreased cognitive performance. There is limited evidence that
BLLs less than 5 [mu]g/dL are associated with delayed puberty and
decreased kidney function in children 12 years of age and older (Ref.
10).
For further information regarding lead and its health effects, and
Federal actions taken to eliminate LBP hazards in housing, see the Lead
Action Plan, the TSD for this rulemaking and the background section of
the Lead Renovation, Repair and Painting Rule, issued on April 22, 2008
(also referred to as the ``RRP Rule,'' 73 FR 21692, April 22, 2008,
codified at 40 CFR part 745, subpart E) (Ref. 4, 5, 17).
B. Federal Actions To Reduce Lead Exposures
In 1992, Congress enacted Title X of the Housing and Community
Development Act (also known as the Residential Lead-Based Paint Hazard
Reduction Act of 1992 or ``Title X'') (Ref. 1) in an effort to
eliminate LBP hazards. Section 1018 of Title X required EPA and the
U.S. Department of Housing and Urban Development (HUD) to promulgate
joint regulations for disclosure of any known LBP or any known LBP
hazards in target housing offered for sale or lease (known as the
``Disclosure Rule'') (Ref. 18). (``Target housing'' is defined in
section 401(17) of TSCA, 15 U.S.C. 2681(17).) On March 6, 1996, the
Disclosure Rule was codified at 40 CFR part 745, subpart F, for EPA,
and 24 CFR part 35, subpart A, for HUD. It requires information
disclosure activities before a purchaser or lessee is obligated under a
contract to purchase or lease target housing.
TSCA section 402(a) directs EPA to promulgate regulations covering
LBP activities to ensure persons performing these activities are
properly trained, that training programs are accredited, and that
contractors performing these activities are certified. On August 29,
1996, EPA published final regulations under TSCA section 402(a) that
govern LBP inspections, risk assessments, and abatements in target
housing and child occupied facilities (COFs) (also referred to as the
``LBP Activities Rule'', codified at 40 CFR part 745, subpart L) (Ref.
19). The definition of ``child-occupied facility'' is codified at 40
CFR 745.223 for purposes of LBP activities. Regulations promulgated
under TSCA section 402(a) contain standards for performing LBP
activities, taking into account reliability, effectiveness, and safety.
TSCA section 402(c)(3) directs EPA to promulgate regulations
covering renovation or remodeling activities in target housing, public
buildings constructed before 1978, and commercial buildings that create
LBP hazards. EPA issued the final RRP Rule under TSCA section 402(c)(3)
on April 22, 2008 (Ref. 17).
TSCA section 403, 15 U.S.C. 2683, gives EPA a related authority to
carry out responsibilities for addressing LBP hazards under the
Disclosure and LBP Activities Rules. TSCA section 403 requires EPA to
promulgate regulations that ``identify . . . lead-based paint hazards,
lead-contaminated dust, and lead-contaminated soil'' for purposes of
TSCA Title IV and the Residential Lead-Based Paint Hazard Reduction Act
of 1992. LBP hazards, under TSCA section 401, are defined as conditions
of LBP and lead-contaminated dust and soil that ``would result'' in
adverse human health effects (15 U.S.C. 2681(10)). TSCA section 401
defines lead-contaminated dust as ``surface dust in residential
dwellings'' that contains lead in excess of levels determined ``to pose
a threat of adverse health effects'' (15 U.S.C. 2681(11)). The 2001 LBP
Hazards Rule established the DLHS to identify conditions of lead-
contaminated dust that would result in adverse human health effects.
These DLHS were revised in the 2019 DLHS Rule and are used to identify
dust-lead hazards.
The 2001 LBP Hazards Rule also established the DLCL (also referred
to as ``clearance levels'' and sometimes referred to elsewhere as
``clearance standards'') under TSCA section 402(a). These clearance
levels are used to evaluate the effectiveness of cleaning following an
abatement. As defined in TSCA Section 401 abatements are designed to
permanently eliminate LBP hazards, including dust-lead hazards. For
purposes of the DLCL, post-clearance dust-lead loadings below the
[[Page 37814]]
DLHS indicate permanent elimination of dust-lead hazards.
Pursuant to TSCA section 404, 15 U.S.C. 2684, and EPA's regulations
at 40 CFR part 745, subpart Q, interested states, territories, and
federally recognized tribes may apply for and receive authorization to
administer their own LBP Activities and RRP programs. EPA's regulations
are intended to reduce exposures, and the LBP Activities regulations in
particular are intended to identify and mitigate hazardous levels of
lead. Authorized programs must be ``at least as protective of human
health and the environment as the corresponding federal program,'' and
must provide for ``adequate enforcement.'' See 40 CFR 745.324(e)(2).
The 2019 DLHS Rule revised the regulation to improve the process for
states, federally recognized tribes, and territories with authorized
LBP Activities programs to demonstrate that their programs meet the
requirements of 40 CFR 745.325 (by submitting a report pursuant to 40
CFR 745.324(h) with such demonstration within two years of the
effective date of a revision).
HUD's Lead Safe Housing Rule (LSHR) is codified in 24 CFR part 35,
subparts B through R. The LSHR implements sections 1012 and 1013 of
Title X. Under Title X, HUD has specific authority to control LBP and
LBP hazards in federally-assisted target housing (including COFs that
are part of an assisted target housing property covered by the LSHR,
because they are part of the common area of the property). The LSHR
aims in part to ensure that federally-owned or federally-assisted
target housing is free of LBP hazards (Ref. 20). Under the LSHR, when a
child under age six (6) with an elevated BLL residing in certain
categories of assisted target housing is identified, the ``designated
party'' and/or the housing owner shall undertake certain actions.
C. Applicability and Uses of the DLCL
The DLCL reviewed in this regulation support the LBP Activities
program, and apply to target housing (i.e., most pre-1978 housing) and
COFs (i.e., pre-1978 non-residential properties where children under
the age of six (6) spend a significant amount of time such as child
care centers and kindergartens). Apart from COFs, no other public and
commercial buildings are covered by this rule. For further background
on the types of buildings to which the LBP Activities program apply,
refer to the proposed and final 2001 LBP Hazards Rule (Ref. 2).
The DLCL are incorporated into the post-abatement work practices
outlined in the LBP Activities Rule (40 CFR 745.227). LBP Activities
regulations apply to inspections, risk assessments, project design and
abatement activities. Pre-abatement dust-lead testing occurs during a
risk assessment, often initiated to comply with HUD's LSHR or in
response to discovery of a child with a BLL that equals or exceeds the
current CDC BLRV (Ref. 9), or the action level set by the state the
child lives in. The objective of a risk assessment is to determine, and
then report, the existence, nature, severity, and location of LBP
hazards in residential dwellings and COFs through an on-site
investigation. During a risk assessment, a risk assessor collects
environmental samples that include dust wipe samples from floors and
window sills that are sent to an NLLAP-recognized laboratory for
analysis. The risk assessor then compares the results of the dust wipe
samples against the DLHS. If the dust-lead loadings from the samples
are at or above the applicable DLHS, indicating LBP hazards are
present, the risk assessor will identify acceptable options for
controlling the hazards in the respective property, which may include
abatements and/or interim controls. TSCA section 401 defines abatements
as, ``measures designed to permanently eliminate lead-based paint
hazards,'' (15 U.S.C. 2681(1)), while interim controls are ``designed
to temporarily reduce human exposure or likely exposure to lead-based
paint hazards,'' (40 CFR 745.83 and 745.223). These options should
allow the property owner to make an informed decision about what
actions should be taken to protect the health of current and future
residents. Risk assessments can be performed only by certified risk
assessors.
The DLCL are used to evaluate the effectiveness of a cleaning
following an abatement. After an abatement is complete, a risk assessor
or inspector determines whether there are any ``visible amounts of
dust, debris or residue,'' which will need to be removed before
clearance sampling takes place (40 CFR 745.227(e)(8)). Once the area is
free of visible dust, debris and residue, and one hour or more after
final post-abatement cleaning ceases, clearance sampling for dust-lead
(via dust wipe samples) can take place and will be conducted ``using
documented methodologies that incorporate adequate quality control
procedures'' (40 CFR 745.227(e)(8)). Only a properly trained and
certified risk assessor or inspector can conduct clearance sampling. A
NLLAP-recognized laboratory must analyze the dust wipe samples and a
risk assessor or inspector must compare the results from window sills
and floors (and window troughs) to the appropriate DLCL. Every sample
must test below the corresponding DLCL, and if a single sample is equal
to or greater than the corresponding DLCL, then the abatement fails
clearance and the components represented by the sample must be
recleaned and retested (40 CFR 745.227(e)(8)). After the dust wipe
samples show dust-lead loadings below the DLCL, an abatement report is
prepared, copies of any reports required under the LBP Activities Rule
are provided to the building owner (and to potential lessees and
purchasers under the LBP Disclosure Rule by those building owners or
their agents), and all required records are retained by the abatement
firm or by the individuals who developed each report.
The DLCL cannot be used to identify housing that is free from
exposure to lead, as exposures are dependent on many factors. For
instance, the physical condition of a property may change over time,
resulting in an increased exposure.
III. Proposed Rule
The purpose of this rulemaking is to update the DLCL so that
attaining these clearance levels demonstrate elimination of the dust-
lead hazard under the new standards. EPA is proposing to lower the DLCL
for floors from 40 [mu]g/ft\2\ to 10 [mu]g/ft\2\. EPA is proposing to
lower the DLCL for window sills from 250 [mu]g/ft\2\ to 100 [mu]g/
ft\2\. Because there is no DLHS for window troughs, EPA is proposing no
change to the DLCL for window troughs at this time. EPA is requesting
comment on each of these DLCL.
A. Approach for Reviewing and the Selection of the Dust-Lead Clearance
Levels
As EPA explained in the LBP Activities Rule (Ref. 19) (61 FR 45778,
45779), the work practice standards covered by those regulations are
intended to ensure that abatements are conducted reliably, effectively,
and safely. While considering those three criteria, the 2001 LBP
Hazards Rule modified the work practice standards to include dust-lead
clearance levels, which ``are used to evaluate the effectiveness of
cleaning following an abatement.'' (Ref. 2) (66 FR 1206, 1211). The
definition of abatement includes cleanup and post-abatement clearance
testing activities, and abatements are designed to permanently
eliminate LBP hazards including dust-lead hazards (40 CFR 745.223). A
dust-lead hazard is identified by the DLHS and the DLCL are used to
demonstrate that abatement activities effectively and permanently
[[Page 37815]]
eliminate those hazards. Therefore, in choosing which DLCL to propose
in this rulemaking, EPA considered how the DLCL will support the
reliability, effectiveness, and safety of abatements to permanently
eliminate LBP hazards.
The 2001 LBP Hazards Rule adopted the rationale outlined in EPA's
1998 proposed rule (``Identification of Dangerous Levels of Lead,'' 63
FR 30302, 30341, June 3, 1998) (Ref. 21). See also Ref. 2 (66 FR 1206,
1222-1223). EPA chose DLCL that were ``achievable using products and
methods known to be reliable and effective'' (Ref. 21). In the 2018
proposed rule for the 2019 DLHS Rule (``Review of the Dust-Lead Hazard
Standards and the Definition of Lead-Based Paint,'' 83 CFR 30889, July
2, 2018), EPA acknowledged that if the DLHS were set too low, the
effectiveness of the LBP Activities program may be harmed if the
abatement projects became overly expensive and time consuming due to
issues of achievability (Ref. 22). That same concern for achievability
applies to EPA's decision on which DLCL to propose in this rulemaking.
However, in the final 2019 DLHS Rule, EPA examined results of a survey
of lead hazard control grantees conducted by HUD's Office of Lead
Hazard Control and Healthy Homes (OLHCHH), and found that:
``reductions in dust-lead levels to 10 [mu]g/ft\2\ on floors and
to 100 [mu]g/ft\2\ on window sills were shown to be technically
achievable using existing cleaning practices, even though, at the
time, the reductions had to be just down to 40 and 250 [mu]g/ft\2\,
respectively'' (Ref. 23).
Therefore, the proposed DLCL of 10 [mu]g/ft\2\ on floors and 100
[mu]g/ft\2\ on window sills are shown to be achievable using available
products and methods that are effective and reliable in permanently
eliminating LBP hazards. For further information on the HUD Clearance
Survey, see the preamble to the 2019 DLHS Rule.
In addition to the specific criteria of reliability, effectiveness,
and safety, the 2001 LBP Hazards rulemaking considered the DLCL in the
broader context of Title X, and selected DLCL that are compatible with
a ``workable framework for lead-based paint hazard evaluation and
reduction'' (Ref. 21). To this end, EPA chose DLCL that were consistent
with the DLHS in part to ensure they were ``as easy as possible to
understand and implement'' (Ref. 21).
EPA maintains the concern for consistency between the DLCL and DLHS
for this rulemaking. During the DLHS rulemaking, multiple commenters
claimed that not revising clearance levels creates confusion (Ref. 24).
Compounding the potential for such confusion is the fact that, as
indicated in the 2019 DLHS Rule and described in greater detail
elsewhere in this preamble, HUD cross-references EPA's DLHS for
clearance work practices under HUD's LSHR. This means that if EPA
chooses different DLCL than the DLHS, a segment of the regulated
community will have two sets of clearance levels to consider. Selecting
DLCL at 10 [mu]g/ft\2\ on floors and to 100 [mu]g/ft\2\ on window sills
will mitigate this confusion within the regulated community.
B. Technical Analysis
The TSD that accompanies this proposal evaluated the 2001 DLCL, the
background dust-lead level, and the five DLCL options (15 [mu]g/ft\2\
for floors and 100 [mu]g/ft\2\ for window sills; and 10 [mu]g/ft\2\ for
floors, and 40 [mu]g/ft\2\, 60 [mu]g/ft\2\, 80 [mu]g/ft\2\ and 100
[mu]g/ft\2\ for window sills) with values between background (lowest)
and the 2001 DLCL (highest). The methods for estimating exposure and
health impacts utilized for the 2019 DLHS rulemaking are reflected in
the TSD for this rule to analyze the DLCL options. The various
components of the model and input parameters used in the TSD for the
DLHS and this rulemaking have been the subject of multiple Science
Advisory Board Reviews, workshops and publications in the peer review
literature (Ref. 4, 25). The analysis outlined in the 2019 DLHS Rule
was used to identify conditions that would result in adverse health
effects. Where the DLHS are used to identify conditions that would
result in adverse health effects, the DLCL must demonstrate that those
conditions identified by the DLHS have been eliminated. Therefore, the
health impact analysis for the DLCL is less central to the decision-
making for this rule than it was to the 2019 DLHS Rule. Regardless, EPA
must understand the impact on public health when selecting the DLCL in
order to inform the economic analysis.
The analyses that EPA developed and presented in both the TSD for
the 2019 DLHS Rule and the TSD accompanying this proposal, were
specifically designed to model potential health effects that might
accrue to the subpopulation, i.e., children living in pre-1940 and pre-
1978 housing. EPA notes that its different program offices estimate
exposures for different populations, different media, and under
different statutory requirements and thus different models or
parameters may be a better fit for their purpose. As such, the approach
and modeling parameters chosen for this rulemaking should not
necessarily be construed as appropriate for or consistent with the
goals of other EPA programs (Ref. 4).
In its evaluation, EPA estimated BLLs and IQ changes as a proxy for
changes in cognitive function in children below the age of six (6)
exposed long-term to these analyzed dust-lead loading levels. As also
reflected in the 2019 DLHS Rule, EPA generated two different modeling
approaches to estimate the quantitative relationships between dust-lead
and BLL data. The first approach used mechanistic modeling data that
include consideration of age-specific ingestion rates, activity
patterns, and background exposures. The second approach used empirical
data that includes co-reported dust-lead and BLL measurements in the
homes of children. The dust-lead and BLL data are used to develop an
empirical relationship to estimate BLL for each candidate DLCL. Both
approaches (mechanistic and empirical) are compared to provide
independent confirmation of the relationship between dust-lead loadings
and BLL. For additional information summarizing the methodologies
employed in the TSD, see the 2018 preamble to the proposed DLHS rule
(Ref. 22).
C. Effect of the Proposed Revised DLCL on EPA and HUD Programs
1. LBP Activities Rule--EPA Abatements
Abatements are any measures or set of measures designed to
permanently eliminate lead-based paint hazards and include activities
such as the removal of paint and dust, the permanent enclosure or
encapsulation of lead-based paint, the replacement of painted surfaces
or fixtures, and all preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures. Abatements
must be conducted by certified abatement workers and supervisors. After
LBP abatements are conducted, EPA's regulations require a certified
inspector or risk assessor to conduct post-abatement clearance testing
(via dust wipe samples) of the abated area. If the dust wipe sample
results show dust-lead loadings equal to or exceeding the applicable
clearance level, ``the components represented by the failed sample
shall be recleaned and retested.'' See 40 CFR 745.227(e)(8)(vii). In
other words, the abatement is not cleared until the dust wipe samples
in the work area are below the clearance levels. Under this proposed
rule, inspectors and risk assessors would compare dust wipe sampling
results for floors and window sills to the lower proposed DLCL and the
results for window
[[Page 37816]]
troughs to the current DLCL. Dust wipe sampling results at or above the
proposed DLCL would indicate that the components represented by the
sample must be recleaned and retested. The proposed rule does not
change any other risk assessment requirements.
2. Renovation, Repair and Painting (RRP) Rule
Revising the DLCL will not trigger new requirements under the
existing RRP Rule (40 CFR part 745, subpart E). The RRP Rule requires
post-renovation cleaning verification under 40 CFR 745.85(b), but the
rule does not require dust wipe sampling and analysis using the DLCL.
However, although optional under the RRP Rule, dust wipe sampling for
clearance using the DLCL in accordance with the LBP Activities Rule (40
CFR 745.227(e)(8)) may be required by contract or by another Federal,
state, territorial, tribal, or local law or regulation. At this time,
other than HUD's Lead Safe Housing Rule, EPA is not familiar with other
laws and regulations that require clearance testing using EPA's DLCL.
3. EPA-HUD Disclosure Rule
Under the Disclosure Rule, prospective sellers and lessors of
target housing must provide purchasers and renters with a federally
approved lead hazard information pamphlet and disclose known LBP and/or
LBP hazards, and any available records, reports, and additional
information pertaining to LBP and/or LBP hazards. The information
disclosure activities are required before a purchaser or renter is
obligated under a contract to purchase or lease target housing. Records
or reports pertaining to LBP and/or LBP hazards must be disclosed,
including results from post-abatement clearance testing, regardless of
whether the level of dust-lead is below the clearance levels.
The proposed DLCL of 10 [mu]g/ft\2\ on floors and 100 [mu]g/ft\2\
on window sills will not result in additional disclosures because there
are no new information collection requirements to consider under this
proposed rule. Property owners would already be disclosing results,
records, reports, and any additional information that show dust-lead
below the original DLCL of 40 [mu]g/ft\2\ on floors or below 250 [mu]g/
ft\2\ on window sills, and any results, records, and reports of
additional cleaning due to lower DLCL would be reflected in this same
record.
4. LSHR Clearance Requirements
The DLCL in this proposal will not change the clearance levels that
apply to hazard reduction activities under HUD's LSHR because the LSHR
currently requires clearance at the DLHS level, which is reflected by
the proposed DLCL. The LSHR requires certain hazard reduction
activities to be performed in certain federally-owned and assisted
target housing including abatements, interim controls, paint
stabilization, and ongoing LBP maintenance. Hazard reduction activities
are required in this housing when LBP hazards are identified or when
maintenance or rehabilitation activities disturb paint known or
presumed to be LBP. The LSHR's clearance regulations, 24 CFR 35.1340,
specify requirements for clearance of these projects (when they disturb
more than de minimis amounts of known or presumed lead-based painted
surfaces, as defined in 24 CFR 35.1350(d)), including a visual
assessment, dust sampling, submission of samples for analysis for lead
in dust, interpretation of sampling results, and preparation of a
report. As explained in the preamble to the 2019 DLHS Rule (Ref. 3),
the LSHR clearance regulations cross-reference EPA's DLHS. As a result,
the LSHR clearance standards were lowered to 10 [mu]g/ft\2\ and 100
[mu]g/ft\2\ for floors and window sills, respectively, when the 2019
DLHS Rule became effective on January 6, 2020. Accordingly, activities
under the LSHR are currently required to be cleared using EPA's DLHS.
5. 2017 Policy Guidance--HUD Requirements for Lead Hazard Control
Grants
On February 16, 2017, HUD's OLHCHH issued policy guidance to
establish new and more protective requirements for dust-lead action
levels for its Lead-Based Paint Hazard Control (LBPHC) and Lead Hazard
Reduction Demonstration (LHRD) grantees (the requirements also apply to
related HUD grants under similar names, including Lead Hazard Reduction
(LHR) grants and their High Impact Neighborhoods and Highest Lead-Based
Paint Abatement Needs grant categories (Ref. 26). In particular, the
guidance adopted clearance levels of 10 [mu]g/ft\2\ and 100 [mu]g/ft\2\
for floors and window sills, respectively, for lead hazard control
activities performed under these grant programs. The change in
requirements were supported by scientific evidence on the adverse
effects of lead exposure at low blood-lead levels in children, (<10
[mu]g/dL) as well as the achievability of lower clearance levels based
on the Lead Hazard Control Clearance Survey. The guidance clearance
levels for floors and window sills are equal to the proposed DLCL.
Consequently, the proposed changes to the DLCL that EPA may promulgate
will not affect the clearance levels used by the LBPHC and LHRD
grantees.
6. HUD Guidelines
The HUD Guidelines for the Evaluation and Control of Lead-Based
Paint Hazards in Housing were developed in 1995 under section 1017 of
Title X. They provide detailed, comprehensive, technical information on
how to identify LBP hazards in residential housing and COFs, and how to
control such hazards safely and efficiently. The Guidelines were
revised in 2012 to incorporate new information, technological advances,
and new Federal regulations, including EPA's LBP hazard standards.
Based on EPA's changes to the DLHS in 2019 and any changes, if made to
the DLCL, HUD plans to revise Chapter 5 of the Guidelines on risk
assessment and reevaluation and Chapter 15 on clearance, and make
conforming changes elsewhere as needed.
7. Previous LBP-Related Activities
The DLCL are used to evaluate the effectiveness of a cleaning
following an abatement. After the dust wipe samples show dust-lead
loadings below the DLCL, an abatement report is prepared, copies of any
reports required under the LBP Activities Rule are provided to the
building owner (and to potential lessees and purchasers under the LBP
Disclosure Rule by those building owners or their agents), and all
required records are also retained by the abatement firm or by the
individuals who developed each report. The proposed DLCL of 10 [mu]g/
ft\2\ on floors and 100 [mu]g/ft\2\ on window sills will not impose
retroactive requirements on regulated entities that have previously
performed post-abatement clearance testing using the original DLCL of
40 [mu]g/ft\2\ on floors or 250 [mu]g/ft\2\ on window sills. The new
requirements would only apply to post-abatement clearance sampling and
analysis conducted after the effective date of the final rule.
D. State Authorization
Pursuant to TSCA section 404 and EPA's regulations at 40 CFR part
745, subpart Q, interested states, territories and federally recognized
tribes may apply for and receive authorization to administer their own
LBP Activities programs, as long as their programs are at least as
protective of human health and the environment as the EPA's program and
provide adequate enforcement. As part of the authorization process,
states, territories
[[Page 37817]]
and federally recognized tribes must demonstrate to EPA that they meet
the requirements of the LBP Activities Rule. If EPA finalizes the lower
DLCL, a state, territory or federally recognized tribe must demonstrate
that it meets the new requirements in its application for authorization
or, if already authorized, in a report submitted under 40 CFR
745.324(h) no later than two years after the effective date of the new
requirements. If an application for authorization has been submitted
but not yet approved, the state, territory or federally recognized
tribe must demonstrate that it meets the new requirements either by
amending its application, or in a report it submits under 40 CFR
745.324(h) no later than two years after the effective date of the new
requirements.
IV. Request for Comments
EPA is requesting comment on all aspects of this proposal,
including but not limited to the topics specifically discussed in this
paragraph. For example, EPA requests comment on EPA's proposal to lower
the DLCL for floor dust to 10 [mu]g/ft\2\ and for window sill dust to
100 [mu]g/ft\2\. Because there is no DLHS for window troughs, EPA is
proposing no change to the DLCL for window troughs at this time, and
requests comment on this topic as well. EPA is requesting comment on
the appropriateness of each of the DLCL, including the effectiveness of
the proposed DLCL to ensure that an abatement has permanently
eliminated a dust-lead hazard. EPA is also requesting comment on the
ability of laboratories to analyze dust wipe samples in accordance with
these proposed lower levels. In some cases, window sills may have a
small surface area, therefore, EPA is requesting comment on the ability
to collect a sufficient amount of dust-lead to meet all laboratories'
quantitation limits with their existing analytical equipment for the
range of window sill clearance options, 40 [mu]g/ft\2\, 60 [mu]g/ft\2\,
80 [mu]g/ft\2\ and 100 [mu]g/ft\2\ as presented in the EA and TSD. For
further information on laboratory capabilities, see the preamble to the
2019 DLHS Rule. In general, EPA is requesting comments on all the
options (15 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ for window
sills; and 10 [mu]g/ft\2\ for floors, and 40 [mu]g/ft\2\, 60 [mu]g/
ft\2\, 80 [mu]g/ft\2\ and 100 [mu]g/ft\2\ for window sills) in the EA
and TSD, as well as the methods, models, and data used to analyze the
options presented in the EA and the TSD. In particular, EPA is
requesting comment on the assumption, derived from HUD data, that 18%
of the housing units that conduct abatements would not achieve dust-
lead loadings below the 2019 DLHS of 10 [mu]g/ft\2\ for floors and 100
[mu]g/ft\2\ for window sills in the baseline.
V. References
The following is a list of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.
1. Public Law 102-550, Title X--Housing and Community Development
Act, enacted October 28, 1992 (also known as the Residential Lead-
Based Paint Hazard Reduction Act of 1992 or ``Title X'') (42 U.S.C.
4851 et seq.). https://www.govinfo.gov/content/pkg/USCODE-2017-title42/html/USCODE-2017-title42-chap63A-sec4851.htm.
2. U.S. EPA. Lead; Identification of Dangerous Levels of Lead; Final
Rule. Federal Register (66 FR 1206, January 5, 2001) (FRL-6763-5).
https://www.federalregister.gov/documents/2001/01/05/01-84/lead-identification-of-dangerous-levels-of-lead.
3. U.S. EPA. Review of the Dust-Lead Hazard Standards and the
Definition of Lead-Based Paint; Final Rule. Federal Register (84 FR
32632, July 9, 2019) (FRL-9995-49). https://www.federalregister.gov/documents/2019/07/09/2019-14024/review-of-the-dust-lead-hazard-standards-and-the-definition-of-lead-based-paint.
4. U.S. EPA, Office of Pollution Prevention and Toxics. Technical
Support Document for Residential Dust-lead Clearance Levels
Rulemaking Estimation of Blood Lead Levels and Effects from
Exposures to Dust-lead. June 2020.
5. President's Task Force on Environmental Health Risks and Safety
Risks to Children. Federal Action Plan to Reduce Childhood Lead
Exposures and Associated Health Impacts. December 2018. https://www.epa.gov/lead/federal-action-plan-reduce-childhood-lead-exposure.
6. U.S. EPA. Implementation Status of EPA Actions Under the 2018
Federal Action Plan To Reduce Childhood Lead Exposures and
Associated Health Impacts: Fiscal Year 2019, 4th Quarter. October
2019. https://www.epa.gov/leadactionplanimplementation/implementation-status-epa-actions-under-2018-federal-action-plan-1#goal1.
7. Sierra Club et al. Letter to Lisa Jackson RE: Citizen Petition to
EPA Regarding the Paint and Dust Lead Standards. August 10, 2009.
https://www.epa.gov/sites/production/files/2015-10/documents/epa_lead_standards_petition_final.pdf.
8. U.S. EPA, Office of Pollution Prevention and Toxics. Economic
Analysis of the Proposed Rule to Revise the TSCA Dust-Lead Clearance
Levels. June 2020.
9. CDC. Childhood Blood Lead Levels in Children Aged <5 Years--
United States, 2009-2014. CDC Morbidity and Mortality Weekly Report,
Vol. 66 No. 3, January 20, 2017. https://www.cdc.gov/mmwr/volumes/66/ss/ss6603a1.htm.
10. HHS, National Toxicology Program. NTP Monograph on Health
Effects of Low-Level Lead. National Institute of Environmental
Health Sciences, Research Triangle Park, NC. NIH Pub. No. 12-5996.
ISSN 2330-1279. June 13, 2012. https://ntp.niehs.nih.gov/ntp/ohat/lead/final/monographhealtheffectslowlevellead_newissn_508.pdf.
11. Agency for Toxic Substances and Disease Registry, Division of
Toxicology and Human Health Sciences. Lead--ToxFAQsTM CAS #7439-92-
1. August 2007. https://www.atsdr.cdc.gov/toxfaqs/tfacts13.pdf.
12. U.S. EPA. Exposure Factors Handbook 2011 Edition (Final Report).
U.S. Environmental Protection Agency, Washington, DC, EPA/600/R-09/
052F. September 2011. https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.
13. U.S. EPA. Policy on Evaluating Health Risks to Children. Policy.
October 1995. https://www.epa.gov/sites/production/files/2014-05/documents/1995_childrens_health_policy_statement.pdf.
14. Zartarian, V., Xue, J., Tornero-Velez, R., & Brown, J.
Children's Lead Exposure: A Multimedia Modeling Analysis to Guide
Public Health Decision-Making. Environmental Health Perspectives,
125(9), 097009-097009. September 12, 2017. https://doi.org/10.1289/EHP1605.
15. President's Task Force on Environmental Health Risks and Safety
Risks to Children. Key Federal Programs to Reduce Childhood Lead
Exposures and Eliminate Associated Health Impacts. November 2016.
https://ptfceh.niehs.nih.gov/features/assets/files/key_federal_programs_to_reduce_childhood_lead_exposures_and_eliminate_associated_health_impactspresidents_508.pdf.
16. U.S. EPA. Integrated Science Assessment (ISA) for Lead (Final
Report, June 2013). U.S. EPA, Washington, DC, EPA/600/R-10/075F,
2013. https://www.epa.gov/isa/integrated-science-assessment-isa-lead.
17. U.S. EPA. Lead; Renovation, Repair, and Painting Program; Final
Rule. Federal Register (73 FR 21692, April 22, 2008) (FRL-8355-7).
https://www.federalregister.gov/citation/73-FR-21692.
18. HUD, EPA. Lead; Requirements for Disclosure of Known Lead-Based
Paint and/or Lead-Based Paint Hazards in Housing; Final Rule.
Federal Register (61 FR 9064, March 6, 1996) (FRL-5347-9). https://www.federalregister.gov/citation/61-FR-9064.
19. U.S. EPA. Lead; Requirements for Lead-Based Paint Activities in
Target Housing and Child-Occupied Facilities; Final Rule. Federal
Register (61 FR 45778, August 29, 1996) (FRL-5389-9). https://
[[Page 37818]]
www.federalregister.gov/citation/61-FR-45778.
20. HUD. Requirements for Notification, Evaluation and Reduction of
Lead-Based Paint Hazards in Federally Owned Residential Property and
Housing Receiving Federal Assistance; Response to Elevated Blood
Lead Levels; Final Rule. Federal Register (82 FR 4151, January 13,
2017) (FR-5816-F-02). https://www.federalregister.gov/documents/2017/01/13/2017-00261/requirements-for-notification-evaluation-and-reduction-of-lead-based-paint-hazards-in-federally.
21. U.S. EPA. Lead; Identification of Dangerous Levels of Lead;
Proposed Rule. Federal Register (63 FR 30302, June 3, 1998) (FRL-
5791-9). https://www.federalregister.gov/documents/1998/06/03/98-14736/lead-identification-of-dangerous-levels-of-lead.
22. U.S. EPA. Review of the Dust-Lead Hazard Standards and the
Definition of Lead-Based Paint; Proposed Rule. Federal Register (83
FR 30889, July 2, 2018) (FRL-9976-04). https://www.federalregister.gov/documents/2018/07/02/2018-14094/review-of-the-dust-lead-hazard-standards-and-the-definition-of-lead-based-paint.
23. HUD, Office of Lead Hazard Control and Healthy Homes. Lead
Hazard Control Clearance Survey. Final Report. October 2015. https://www.hud.gov/sites/documents/clearancesurvey_24oct15.pdf.
24. U.S. EPA. Review of the Dust-Lead Hazard Standards and the
Definition of Lead-Based Paint RIN 2070-AJ82 Response to Comment.
June 2019. https://www.regulations.gov/document?D=EPA-HQ-OPPT-2018-0166-0571.
25. U.S. EPA, Office of Pollution Prevention and Toxics. Technical
Support Document for Residential Dust-lead Hazard Standards
Rulemaking Approach taken to Estimate Blood Lead Levels and Effects
from Exposures to Dust-lead. June 2019.
26. HUD. Revised Dust-Lead Action Levels for Risk Assessment and
Clearance; Clearance of Porch Floors. Policy Guidance 2017-01 Rev 1.
February 16, 2017. https://www.hud.gov/sites/documents/LEADDUSTLEVELS_REV1.pdf.
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is an economically significant regulatory action that
was submitted to the Office of Management and Budget (OMB) for review
under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563
(76 FR 3821, January 21, 2011). Any changes made in response to OMB
recommendations have been documented in the docket. The Agency prepared
an analysis of the potential costs and benefits associated with this
action, which is available in the docket (Ref. 8).
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is expected to be an Executive Order 13771 regulatory
action (82 FR 9339, February 3, 2017). Details on the estimated costs
of this proposed rule can be found in EPA's analysis of the potential
costs and benefits associated with this action (Ref. 8).
C. Paperwork Reduction Act (PRA)
This action does not directly impose an information collection
burden under the PRA, 44 U.S.C. 3501 et seq. Under 24 CFR part 35,
subpart A, and 40 CFR 745, subpart F, sellers and lessors must already
provide purchasers or lessees any available records or reports
``pertaining to'' LBP, LBP hazards and/or any lead hazard evaluative
reports available to the seller or lessor. Accordingly, a seller or
lessor must disclose any reports showing dust-lead levels, regardless
of the value. Thus, this action would not result in additional
disclosures. Because there are no new information collection
requirements to consider under the proposed rule, or any changes to the
existing requirements that might impact existing ICR burden estimates,
additional OMB review and approval under the PRA is not necessary.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq. The small businesses subject to the requirements of
this action are abatement firms that may incur costs associated with
additional cleaning and sealing in houses where a post-abatement
loading is between the current DLCL of 40 [mu]g/ft\2\ for floors and
250 [mu]g/ft\2\ for window sills, and the proposed DLCL of 10 [mu]g/
ft\2\ for floors and 100 [mu]g/ft\2\ for window sills.
EPA's Economic Analysis (Ref. 8) presents low and high scenarios
for the number of housing units where a child with a blood lead level
that equals or exceeds a Federal or state trigger value lives. For the
low scenario, environmental investigations are assumed to be conducted
when a child's blood lead level equals or exceeds the trigger value set
by that child's state. These values vary from 5 [mu]g/dL to 25 [mu]g/
dL, depending on the state. For the high scenario, environmental
investigations are assumed to be conducted when a child's blood lead
level equals or exceeds the CDC's reference level of 5 [mu]g/dL. The
two scenarios function as bounding estimates, and a more realistic
assessment of the number of environmental investigations is that they
are between the high and low scenarios. The low and high scenarios for
the number of environmental investigations affect the estimated number
of small business that might incur costs for cleaning and additional
dust wipe testing if EPA promulgates the clearance levels in this
proposed rule.
The Agency has determined that this rule may impact approximately 0
to 10,200 small abatement firms, with 0 to 9,000 having cost impacts
less than 1% of revenues, 0 to 1,000 having impacts between 1% and 3%,
and 0 to 250 having impacts greater than 3% of revenues. Details of the
analysis are presented in the EA, which is available in the docket
(Ref. 8).
In addition to the use of the high scenario, the analysis makes a
series of other assumptions that are likely to lead to an overestimate
of small entity impacts. In order to estimate the potential impacts of
the rule, EPA assumed that an environmental investigation occurs
whenever a child's blood lead level is found to equal or exceed a
Federal or state trigger value; that the environmental investigation
always includes dust wipe testing of the child's home; and that a
clean-up occurs whenever the environmental investigation indicates that
dust-lead loadings exceed a hazard standard. Neither the DLCL nor the
other provisions of EPA's LBP activities regulations require property
owners to evaluate their properties for the presence of dust-lead
hazards, or to take action to address the hazards if dust-lead hazards
are identified.
The analysis also assumes that in all cases where a dust-lead
hazard is identified, the property owner performs at least one baseline
abatement activity. This likely overestimates costs because some events
may only involve interim controls, and EPA does not require clearance
testing for such events.
Finally, the analysis assumes that in all cases the costs are borne
entirely by the lead paint abatement firm (as opposed to being passed
through to the property owner). However, it is more likely that some,
or perhaps even most, of these costs will be passed on to the property
owners.
[[Page 37819]]
In light of these conservative assumptions, the small entity
impacts analysis likely overstates the number of small businesses with
large impacts.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The total estimated
annual cost of the proposed rule is $0 to 7 million to $0 to 35 million
per year (Ref. 8), which does not exceed the inflation-adjusted
unfunded mandate threshold of $156 million.
F. Executive Order 13132: Federalism
This action does not have federalism implications, as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. States
that have authorized LBP Activities programs must demonstrate that they
have DLCL at least as protective as the levels at 40 CFR 745.227.
However, authorized States are under no obligation to continue to
administer the LBP Activities program, and if they do not wish to adopt
the new DLCL they can relinquish their authorization. In the absence of
a State authorization, EPA will administer these requirements. Thus,
Executive Order 13132 does not apply to this action.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). Federally
recognized tribes that have authorized LBP Activities programs must
demonstrate that they have DLCL at least as protective as the clearance
level at 40 CFR 745.227. However, these authorized tribes are under no
obligation to continue to administer the LBP Activities program, and if
they do not wish to adopt the new DLCL they can relinquish their
authorization. In the absence of a tribal authorization, EPA will
administer these requirements. Thus, Executive Order 13175 does not
apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is economically significant as defined in
Executive Order 12866, and because the environmental health or safety
risk addressed by this action may have a disproportionate effect on
children (Ref. 4).
The primary purpose of this rule is to clear abatements to a level
that can reliably, effectively and safely eliminate LBP hazards in
target housing, including target housing where children reside, and
COFs. EPA's analysis indicates that there will be approximately 10,500
to 51,000 children per year affected by the rule (Ref. 8).
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply, distribution
or use of energy.
J. National Technology Transfer and Advancement Act (NTTAA)
Since this action does not involve any technical standards, NTTAA
section 12(d), 15 U.S.C. 272 note, does not apply to this action.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
List of Subjects in 40 CFR Part 745
Environmental protection, Abatement, Child-occupied facility,
Clearance levels, Hazardous substances, Lead, Lead poisoning, Lead-
based paint, Target housing.
Dated: June 17, 2020.
Andrew Wheeler,
Administrator.
Therefore, it is proposed that 40 CFR chapter I, subchapter R, be
amended as follows:
PART 745--[AMENDED]
0
1. The authority citation for part 745 continues to read as follows:
Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
0
2. Amend Sec. 745.223 by revising the definition for ``Clearance
levels'' to read as follows:
Sec. 745.223 Definitions.
* * * * *
Clearance levels are values that indicate the amount of lead in
dust on a surface following completion of an abatement activity. To
achieve clearance when dust sampling is required, values below these
levels must be achieved.
* * * * *
0
3. Amend Sec. 745.227 by revising paragraph (e)(8)(viii) to read as
follows:
Sec. 745.227 Work practice standards for conducting lead-based paint
activities: Target housing and child-occupied facilities.
* * * * *
(e) * * *
(8) * * *
(viii) The clearance levels for lead in dust are 10 [mu]g/ft\2\ for
floors, 100 [mu]g/ft\2\ for interior window sills, and 400 [mu]g/ft\2\
for window troughs.
* * * * *
[FR Doc. 2020-13582 Filed 6-23-20; 8:45 am]
BILLING CODE 6560-50-P