[Federal Register Volume 66, Number 4 (Friday, January 5, 2001)]
[Rules and Regulations]
[Pages 1206-1240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-84]



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Part III





Environmental Protection Agency





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40 CFR Part 745



Lead; Identification of Dangerous Levels of Lead; Final Rule

  Federal Register / Vol. 66, No. 4 / Friday, January 5, 2001 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[OPPTS-62156H; FRL-6763-5]
RIN 2070-AC63


Lead; Identification of Dangerous Levels of Lead

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Final rule.

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SUMMARY:  EPA is issuing a final regulation under section 403 of the 
Toxic Substances Control Act (TSCA), as amended by the Residential 
Lead-Based Paint Hazard Reduction Act of 1992, also known as ``Title X 
(ten),'' to establish standards for lead-based paint hazards in most 
pre-1978 housing and child-occupied facilities. This regulation 
supports the implementation of regulations already promulgated, and 
others under development, which deal with worker training and 
certification, lead hazard disclosure in real estate transactions, 
requirements for lead cleanup under State authorities, lead hazard 
evaluation and control in Federally-owned housing prior to sale and 
housing receiving Federal assistance, and U.S. Department of Housing 
and Urban Development (HUD) grants to local jurisdictions to perform 
lead hazard control. In addition, today's action also establishes, 
under authority of TSCA section 402, residential lead dust cleanup 
levels and amendments to dust and soil sampling requirements and, under 
authority of TSCA section 404, amendments to State program 
authorization requirements. By supporting implementation of the major 
provisions of Title X and by providing guidance to all owners and 
occupants of pre-1978 housing and child-occupied facilities, this 
regulation will help to prevent lead poisoning in children under the 
age of 6.

DATES:  This final rule is effective on March 6, 2001. This rule shall 
be promulgated for purposes of judicial review at 1 p.m. eastern 
daylight time on February 5, 2001.

FOR FURTHER INFORMATION CONTACT:  For general information contact: 
Barbara Cunningham, Director, Office of Program Management and 
Evaluation, Office of Pollution Prevention and Toxics (7401), 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW, 
Washington, DC 20460; telephone number: 202-554-1404; e-mail address: 
[email protected].
    For technical information contact: Dave Topping, National Program 
Chemicals Division (7404), Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: (202) 260-7737; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:   

I. General Information

A. Does this Action Apply to Me?

    You may be affected by this action if you must comply with other 
Title X regulations that are affected by today's action. The following 
table identifies potentially affected categories and entities:

 
----------------------------------------------------------------------------------------------------------------
                                                                          NAICS or
                 Category                      Examples of Entities      SIC codes      Effect of Regulation
----------------------------------------------------------------------------------------------------------------
Lead abatement professionals               Workers, supervisors,            562910  Provides standards that risk
                                            inspectors, risk assessors,              assessors would use to
                                            and project designers                    identify hazards and
                                            engaged in lead-based paint              evaluate clearance tests;
                                            activities.                              helps determine when
                                                                                     certified professionals
                                                                                     would need to be employed
                                                                                     to perform lead cleanup
----------------------------------------------------------------------------------------------------------------
Training providers                         Firms providing training         611519  Provides standards that
                                            services in lead-based                   training providers would
                                            paint activities                         have to teach in their
                                                                                     courses
----------------------------------------------------------------------------------------------------------------
Federal agencies that own residential                                       92511,  Standards identify hazards
 property                                                                    92811   that Federal agencies or
                                                                                     purchasers of Federal
                                                                                     property would have to
                                                                                     abate in pre 1960 housing
                                                                                     prior to sale, under Title
                                                                                     X, section 1013.
----------------------------------------------------------------------------------------------------------------
Property owners that receive assistance    State and city public            53110,  Standards identify hazards
 through Federal housing programs           housing authorities, owners     531311   that property owners would
                                            of multifamily rental                    have to abate or reduce as
                                            properties that receive                  specified by regulations
                                            project-based assistance,                issued by HUD under
                                            owners of rental properties              authority of Title X,
                                            that lease units under                   section 1012
                                            HUD's tenant-based
                                            assistance program
----------------------------------------------------------------------------------------------------------------
Property owners                            Owner occupants, rental         531110,  Standards identify hazards
                                            property owners, public         531311   that, when known, would
                                            housing authorities,                     have to be disclosed under
                                            Federal agencies                         EPA/HUD joint regulations
                                                                                     promulgated under Title X,
                                                                                     section 1018
----------------------------------------------------------------------------------------------------------------

    This listing is not intended to be exhaustive, but rather provides 
a guide for entities likely to be affected by this action. Other types 
of entities not listed in the table in this unit could also be 
affected. To determine whether you or your business is affected by this 
action, you should carefully examine the applicability provisions in 
relevant regulations. If you have any questions regarding the 
applicability of this action to a particular entity, consult the 
technical person listed in the FOR FURTHER INFORMATION CONTACT section.

B. How Can I Get Additional Information, Including Copies of this 
Document or Other Related Documents?

    1. Electronically. You may obtain electronic copies of this 
document, and certain other related documents that might be available 
electronically, by

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going directly to the Internet Home Page for this regulation at http://www.epa.gov/lead/leadhaz.htm and selecting the desired document. You 
can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/ to obtain a copy of this final rule.
    2. In person. The Agency has established an official record for 
this action under docket control number OPPTS-62156. The official 
record consists of the documents specifically referenced in this 
action, any public comments received during the comment period, and 
other information related to this action. This official record includes 
the documents that are physically located in the docket, as well as the 
documents that are referenced in those documents. The public version of 
the official docket, which includes printed, paper versions of any 
electronic comments submitted during the comment period, is available 
for inspection in the TSCA Nonconfidential Information Center, North 
East Rm. B-607, Waterside Mall, 401 M St., SW., Washington, DC. The 
Center is open from noon to 4 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Center is (202) 260-7099.

II. Overview

A. Introduction

    The Title X term ``lead-based paint hazard'' is intended to 
identify lead-based paint and all residential lead-containing dusts and 
soils regardless of the source of the lead, which, due to their 
condition and location, would result in adverse human health effects. 
One of the underlying principles of Title X is to move the focus of 
public and private sector decision makers away from the mere presence 
of lead-based paint, to the presence of lead-based paint hazards, for 
which more substantive action should be undertaken to control 
exposures, especially to young children. This regulation establishes 
hazard standards for residential lead-based paint, and residential dust 
and soil lead. The hazard standards for these three media, 
collectively, are statutorily defined as lead-based paint hazards.

B. Summary of Statutory Authority

    The Residential Lead-Based Paint Hazard Reduction Act of 1992 was 
enacted as Title X of the Housing and Community Development Act of 
1992. Title X establishes a comprehensive Federal program for reducing 
the risks from lead-based paint and certain lead hazards. The Title X 
program primarily gives authority to HUD and EPA, but affects a number 
of other Federal agencies. Among other things, Title X amended TSCA by 
adding TSCA Title IV, which specifically gives regulatory authority to 
EPA to cover, among other things, training of workers who deal with 
lead-based paint hazard abatement, the appropriate form of State and 
Tribal lead programs, and the identification of dangerous levels of 
lead. Title IV includes section 403. EPA is promulgating the standards 
for lead-based paint hazards under the authority of TSCA section 403, 
15 U.S.C. 2683.
    Section 403 requires EPA to promulgate regulations that ``identify 
. . . lead-based paint hazards, lead-contaminated dust, and lead-
contaminated soil'' for purposes of the entire Title X. Lead-based 
paint hazards, under TSCA section 401 (15 U.S.C. 2681), are defined as 
conditions of lead-based paint and lead-contaminated dust and soil that 
``would result'' in adverse human health effects (15 U.S.C. 2681(10)). 
Lead-based paint is defined by statute as paint with lead levels equal 
to or exceeding 1.0 milligrams per square centimeter (mg/
cm2) or 0.5% by weight (see section 302(c) of the Lead-
Poisoning Prevention Act (42 U.S.C. 4822(c)) and TSCA section 401(9) 
(15 U.S.C. 2681(9)). 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)). TSCA section 401 defines lead-contaminated soil as 
``bare soil on residential real property that contains lead at or in 
excess of levels determined to be hazardous to human health'' (15 
U.S.C. 2681(12)).
    EPA is also promulgating amendments to the regulations for lead-
based paint activities under the authority of TSCA section 402 (15 
U.S.C. 2682) and to the State and Tribal program authorization 
requirements under authority of TSCA section 404 (15 U.S.C. 2684). 
These changes are needed to ensure consistency among the various 
regulations covering lead risks under TSCA. Section 402 requires EPA to 
promulgate regulations establishing training and certification 
requirements for individuals and firms engaged in lead-based paint 
activities. Lead-based paint activities, in the case of target housing 
and child-occupied facilities, include risk assessment, inspection and 
abatement. See TSCA section 402(b)(1); 15 USC 2682(b)(1). To clarify 
this definition, EPA notes that lead-based paint activities do not 
include interim controls. These regulations ``shall contain standards 
for performing lead-based paint activities, taking into account 
reliability, effectiveness, and safety'' (15 U.S.C. 2682(a)(1)). 
Section 404 requires States and Tribes seeking to administer and 
enforce standards, regulations, or other requirements under section 
402, 406, or both to seek authorization from EPA.

C. Guiding Principles

    Reducing exposure to lead has been an important issue for EPA for 
more than 2 decades. Young children are especially vulnerable to the 
toxic effects of lead because their nervous systems are still 
developing and they absorb more of the lead to which they are exposed. 
Many of the health effects associated with lead are thought to be 
irreversible. Moreover, the effects at lower levels of exposure are 
often asymptomatic. In light of the impacts on children and the nature 
of the health effects, EPA's goal is to eliminate exposure to harmful 
levels of lead. This goal has informed Agency actions such as the 
decision to remove lead as an additive from gasoline as discussed in 
the preamble to the proposed rule (63 FR at 30305).
    First and foremost, the Agency faces the difficulty of determining 
the level at which to set the standards given the uncertainties in 
information on cause and effect--what environmental levels in which 
specific medium may actually cause particular blood lead levels that 
are associated with adverse health effects. The Agency has tools, which 
are only generally consistent, that show that certain increases in 
environmental lead levels are associated with certain increases in 
blood lead levels. Given the range of uncertainty shown in its analysis 
supporting the establishment of a hazard level under this rule, EPA has 
developed a technical analysis that considers hazard standards for dust 
and soil at the lowest levels at which the analysis shows that across-
the-board abatement on a national level could be justified. EPA 
recognizes, however that for any levels of lead in dust or soil 
judgment must be exercised as to how to treat the medium, and interim 
controls as well as abatement could be effective. In addition, EPA 
recommends that organizations and individuals consider some form of 
interim control in certain residential areas even where soil lead 
levels are below the hazard standard if there is a concern that 
children under 6 might spend substantial time in such areas, or there 
is potential for that soil to contribute to hazardous lead levels in 
play areas or dwellings. While the risks from lead at these lower 
levels are less than the hazard level, EPA believes that public health 
will be further protected if

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owners and occupants of residential properties are encouraged to take 
actions to reduce the potential for lead exposure.
    In performing its analyses for this rule, the Agency could not 
quantitatively compare interim control strategies with abatement 
strategies because there are only limited data available on the 
effectiveness of interim controls over extended periods of time, and 
those data which are available are not suitable for quantitative 
comparisons with abatements. In comparing interim control strategies 
with abatement strategies, one must make a number of assumptions 
concerning the costs of administrative management, and frequency of 
monitoring and renewal over the planning horizon. For the 50-year 
planning horizon which the Agency used in its dust and soil analyses, 
one would have to compare the time stream of interim control expenses, 
for as long as such expenses are necessary, and weigh the possible 
differences in potential blood-lead reductions, to make a fair 
comparison of abatement and interim control strategies.
    Nevertheless, experience with interim control programs is 
increasing and certain organizations, particularly public health and 
housing agencies, believe they have been able to develop effective 
programs for interim controls which achieve virtually the same degree 
of risk reduction as do abatement programs, but at much reduced cost. 
EPA received comments on this issue during the public comment process. 
EPA wishes to encourage the continuing evaluation of such efforts 
because resources to deal with hazardous lead levels are often limited, 
and strategies which achieve comparable risk reduction, but at much 
reduced cost, have the potential to protect more children by allocating 
the limited resources more effectively. EPA believes that public and 
private organizations should evaluate both interim control and 
abatement strategies in determining the most effective course of action 
when dealing with dust and soil hazards.
    In addition, EPA recommends that organizations and individuals 
consider some form of interim control response action in certain areas 
even where soil lead levels are below the hazard standard. This would 
apply if there is a concern that children under the age of 6 spend 
substantial time in such areas, or there is potential for that soil to 
contribute to hazardous lead levels in play areas or dwellings. While 
the risks from lead at these lower levels are less than at the hazard 
level, EPA believes that public health will be further protected if 
owners and occupants of residential properties are aware of such 
contamination and are encouraged to take actions to reduce the 
potential for lead exposures.
    For determining a paint lead hazard EPA faced a data problem 
different from that faced with respect to dust and soil hazards. For 
dust and soil, EPA had substantial raw data on environmental levels and 
blood lead levels, even though it faced substantial uncertainty in 
correlating the levels. For lead-based paint, as discussed later in 
this preamble, the Agency had no data by which it could select a 
threshold below which the paint would not be a hazard. EPA, therefore, 
could not apply the same analysis for the paint hazard determination as 
it did for the dust and soil hazard determinations. Comments indicated 
that even very tiny amounts of deteriorated lead-based paint are 
sufficient in certain circumstances to result in adverse health 
effects. Accordingly, EPA has generally designated any amount of 
deteriorated paint as a lead-based paint lead hazard. Nevertheless, as 
with dust and soil hazards, EPA would not recommend full scale 
abatement be undertaken for all paint lead hazards. Instead, the Agency 
wishes the public to be aware that any deteriorated lead-based paint 
presents enough of a risk that it should be stabilized and carefully 
monitored if it is not abated.
    Controlling exposure to lead in the residential environment 
presents EPA with challenges that, in important respects, are different 
from and often more complex than those the Agency deals with in other 
regulatory contexts. Among the challenges of this regulation is that it 
requires the Agency to address exposure from the past use of products 
that contained lead rather than current products and/or processes that 
introduce lead into the environment. Assuming that there are safe and 
available substitutes, the government can eliminate lead from an 
existing product if the risk warrants such removal (e.g., gasoline, 
solder for water pipes and food cans). Removing lead that is already in 
the environment is far more difficult. It would have been better that 
lead never found its way into paint that exists today in approximately 
64 million homes. However, since it is so pervasive, EPA is faced with 
a number of dilemmas. First, the number of properties that have some 
form of lead is enormous. However, the number of buildings with lead 
paint an dust that present a hazard is, relatively, much lower. The 
Agency must therefore distinguish which of these lead conditions need 
to be controlled. Because there is a great deal of variability among 
properties containing lead paint, our ability to identify which 
properties present risks is limited. Moreover, the exposure risk to 
individuals, even if there were not such a large number of affected 
properties, can be compounded by child-specific factors (e.g., hand-to-
mouth behavior, pica, nutrition, hygiene).
    In addition, the success of the program will largely rely upon the 
voluntary participation of States and Tribes, as well as counties and 
cities, to implement the program and upon property owners to follow the 
standards and EPA's recommendations. If EPA were to set unreasonable 
standards (e.g., standards that would recommend removal of all lead 
from paint, dust, and soil), States and Tribes may choose to opt out of 
the Title X lead program and property owners may choose to ignore EPA's 
advice, believing it lacks credibility and practical value. 
Consequently, EPA needed to develop standards that would protect 
children without wasting resources by chasing risks of negligible 
importance and that would be accepted as reasonable by States, Tribes, 
local governments, and property owners.
    Three other considerations also merit the public's attention. 
First, as noted, the standards are designed to focus resources on the 
worst problems. If property owners are able to address less pressing 
problems (e.g., deteriorated paint below the minimum area threshold), 
EPA encourages them to take action. EPA also encourages States, Tribes, 
and local governments to adopt more stringent standards if local 
circumstances warrant such action.
    Second, the standards alone cannot solve the lead problem. They are 
part of a broader program designed to educate the public and raise 
public awareness, empower and protect consumers, and provide helpful 
technical information that professionals can use to identify and 
control lead hazards. EPA has developed and implemented an active 
public education and outreach program consisting of a toll-free hotline 
(1-800-424-LEAD) co-sponsored with HUD and U.S. Centers for Disease 
Control and Prevention (CDCP), public service announcements, poster 
campaigns, distribution of a parent's guide through grocery stores, 
slides in movie theaters, and an outreach campaign with the National 
Parent Teachers Association, the National Association of Child Care 
Providers, and public libraries.
    Consumer empowerment and protection efforts include the hazard 
disclosure regulations jointly issued with HUD training and 
certification

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standards for individuals and firms engaged in lead-based paint 
activities, and the pre-renovation education rule that requires 
renovation and remodeling contractors to provide the EPA pamphlet 
``Protect Your Family from Lead in Your Home'' to occupants prior to 
the start of renovation and remodeling projects. In addition, under 
section 402 of TSCA, EPA is currently developing training and 
certification requirements for renovation and remodeling contractors 
whose activities may create lead hazards.
    EPA and other Federal agencies continue to conduct field studies to 
identify and evaluate lower cost products and technologies for 
evaluating and controlling lead-based paint hazards. The findings of 
these studies are distributed to professionals through our lead 
hotline, EPA's website (www.epa.gov/lead) and at other agencies' 
websites, and through on-going contact with trade and professional 
associations. The standards, combined with these other efforts, provide 
a comprehensive program designed to reduce and eventually help 
eliminate lead in residential paint, dust, and soil as a cause of 
childhood lead poisoning.
    Third, these standards are based on the best science available to 
the Agency. EPA recognizes, however, that the science is constantly 
developing and with it our understanding of the relationship between 
lead in the environment and human exposure and the relationship between 
exposure and health impacts. If new data become available (e.g., 
empirical data showing that very small amounts of deteriorated paint 
pose a serious health risk or data showing that hazard control 
activities are more effective at reducing long-term dust-lead levels 
than assumed by EPA), the Agency will consider changing the standards 
to reflect these data. If the data indicate that the standards should 
be changed and they meet EPA's quality criteria, the Agency will 
consider publishing the data for public review and comment and amending 
today's regulation.

D. Regulatory Approach

    1. Uniform national standards. EPA is issuing uniform national 
standards in this rule. The rationale for adopting uniform national 
standards is found on pages 63 FR 30307 to 30308 of the preamble to the 
proposed rule. EPA summarizes this reasoning in the following 
paragraphs.
    EPA stated that the relationship between environmental lead levels 
(from paint, dust, and soil) and their effects on the health of exposed 
children, which forms the basis for this rule, is complex, and is 
dependent upon numerous site-specific and child-specific factors. Where 
more site-specific factors can be considered on a smaller (residence or 
community) scale, estimates of the effects of environmental levels on 
blood lead can be more accurate. The data needed, however, are not 
available for communities nationwide. In contrast, national data on 
lead in paint, dust, and soil are currently available. Even if data 
were available, the residence or community scale standards would still 
not account for variability in exposure influenced by child-specific 
factors (e.g., hand-to-mouth behavior, hygiene, and nutrition). 
Detailed evaluations that considered the specifics of individual 
communities would generally require information for each residence to 
evaluate the impact of environmental lead on children.
    In addition, uniform national standards provide a fixed basis of 
comparison for all homes. National standards can be used to compare 
properties and establish priorities. This would be extremely difficult 
to accomplish if there were the numerous standards specific to 
individual communities.
    EPA also took into account that certain segments of the population 
have a higher incidence of elevated blood-lead levels (e.g., minority 
and low-income children). Because estimates of the relationship between 
environmental lead levels and children's health effects are not 
sufficiently refined to distinguish relationships for particular 
subsets of the general population of children, EPA is choosing to 
emphasize program implementation (e.g., training, education, and 
environmental justice grants), which the Agency considers a more 
effective and simpler approach to address vulnerable communities rather 
than setting community-specific standards. EPA preferred to establish a 
simple, set of standards that could easily be adopted by States, 
allowing them to tailor the standards, should they so choose. This 
allows States greater flexibility to establish and implement their 
programs while a national, baseline level of protection to children is 
maintained.
    2. Media-specific standards. A second basic issue that shaped EPA's 
standard-setting approach involves the fact that a child's total lead 
exposure is the sum of contributions from numerous sources, including 
paint, dust, soil, and others. Specifically, EPA had to decide whether 
to set separate, independent standards for paint, dust, and soil or to 
integrate the standards.
    Under the first option, EPA would establish a fixed standard for 
each medium without considering the varying conditions in the other 
media. For example, the soil standard would remain constant, regardless 
of whether dust lead levels were high or low. The chief advantage of 
this option is that the standards are simple to understand and use.
    A potential disadvantage of this approach is that a standard could 
be established for a particular medium that does not consider the total 
exposure of a child (i.e., exposures from all other media). To address 
this potential shortcoming, the Agency considered candidate sets of 
standards for dust, lead, and paint together so that its comparisons of 
candidate standards reflected exposures to all media. Consequently, the 
standards, although they are medium-specific numbers will effectively 
identify hazards as long as all media are evaluated and compared to the 
standards.
    Under the second option, EPA would set standards to account for 
total lead exposure from all media. Under a joint standard, the 
standard for each medium would vary, depending on the conditions in the 
other media. For a graphical [illustration of this option, see page 
30308 of the preamble to the proposed rule. The major advantage of the 
joint standards is that they avoid anomalous situations. For example, 
it stands to reason that if both dust and soil measurements are just 
below the hazard levels--35 g/ft2 on the floor and 
1,175 parts per million (ppm) in the non-play area--the situation is 
more dangerous than if one measurement is above the hazard level--e.g. 
1,225 ppm for soil--and floor dust is at zero. Yet the first set of 
measurements would not constitute a hazard and the second set would. In 
these circumstances, joint standards may better reflect the total 
exposure and risk. Furthermore, for this option to be truly effective, 
EPA would need to know the levels from all sources of lead exposure and 
how they relate to blood lead levels individually and in various 
combinations. EPA, currently, lacks the analytical tools to support 
selection of joint standards. In addition, EPA is endeavoring to set 
the media specific hazard standards low enough that hazardous 
situations will not occur if both soil and dust are just below the 
standards. In such a case, the media specific standards could be 
overinclusive. The Agency, however, believes that this approach is 
appropriate to protect public health. Accordingly, in this rule EPA is 
establishing media-specific standards. Additional explanation for this 
decision

[[Page 1210]]

can be found on pages 30308 and 30309 of the preamble to the proposed 
rule.

E. Applicability and Uses of the Standards

    The standards established in this rule apply to target housing 
(i.e., most pre-1978 housing) and child-occupied facilities (pre-1978 
non-residential properties where children under the age of 6 spend a 
significant amount of time such as daycare centers and kindergartens). 
The standards are intended to be used prospectively. That is, they 
should be used to identify properties that present risks to children 
before children are harmed. This, of course, would not prevent them 
from being used retrospectively in the case of environmental 
intervention blood lead investigations and clearance of resulting lead 
hazard control activities.
    These standards are not appropriate as the sole source of 
information to use when identifying the source of exposure for a lead-
poisoned child. When a property is being evaluated in response to an 
identification of a lead-poisoned child, the risk assessor in 
cooperation with local public health officials should identify and 
consider all sources of lead exposure. For example, a risk assessor 
should consider lead in drinking water as well as the presence of any 
amount of deteriorated lead-based paint.
    Within the scope of Title X, these regulatory standards will help 
support and implement major provisions of the statute. They will be 
incorporated into the risk assessment work practice standards, 
providing the basis for risk assessors to determine whether lead-based 
paint hazards are present. By helping to determine when a hazard is 
present, the standards will help determine when a hazard control 
activity must be performed by certified personnel. EPA further notes 
that only abatement of lead-based paint hazards specifically hazardous 
lead-based paint, dust-lead hazards or soil-lead hazards identified in 
40 CFR 745.65 requires certified personnel. This is because 
``abatement'' is defined in 40 CFR 745.223 as ``measures designed to 
permanently eliminate lead-based paint hazards.'' Thus, permanent 
elimination of lead-based paint, and dust or soil lead would not 
require the use of certified personnel unless lead-based paint hazards 
are present in those media.
    States and Tribes wishing to obtain or retain authorization to 
administer and enforce training and certification programs must 
incorporate hazard standards as protective as the standards in this 
rule. Provisions for State and Tribal authorization are described at 40 
CFR part 745, subpart Q. These standards will also help property owners 
comply with section 1018 by establishing what conditions must be 
disclosed to prospective purchasers and renters as lead-based paint 
hazards prior to the sale or rental of target housing. HUD, the 
Department of Defense (DoD), and other Federal agencies will use these 
standards in implementing or overseeing the evaluation and control of 
hazards in Federally-assisted housing and Federally-owned housing prior 
to disposition. (24 CFR part 35)
    Under section 1018 of Title X (42 U.S.C. 4852d), EPA and HUD have 
jointly developed regulations requiring a seller or lessor of most pre-
1978 housing to disclose the presence of any known lead-based paint and 
lead-based paint hazards to the purchaser or lessee (24 CFR part 35, 
subpart A; 40 CFR part 745, subpart F). When these section 403 rules 
become effective, lead-based paint hazards in lead paint, dust or soil 
will need to be disclosed. EPA further notes, however, that under the 
section 1018 rules, the seller or lessor also must provide the 
purchaser or lessee any available records or reports ``pertaining to'' 
lead-based paint, lead-based paint hazards and/or any lead hazard 
evaluative reports available to the sellor or lessor (section 
1018(a)(1)(B). See 40 CFR 745.107(a)(4). Accordingly, if a seller or 
lessor has a report showing lead is present in levels that would not 
constitute a hazard, that report must also be disclosed. Thus, 
disclosure is required under section 1018 even if dust and soil levels 
are less than the hazards. EPA notes, however, that with respect only 
to leases of target housing, disclosure is not required in the limited 
circumstance where the housing has been found to be lead-based paint 
free by a certified inspector (24 CFR 35.82; 40 CFR 745.101), although 
voluntary disclosure of such certifications is encouraged.
    Beyond the scope of Title X, these standards will guide the control 
of lead-based paint hazards in the nation's housing stock.
    Although other regulations (e.g., hazard evaluation and control in 
housing receiving Federal assistance and Federally-owned housing prior 
to sale) may require property owners to evaluate properties for the 
presence and/or control of lead hazards, today's action does not 
contain such requirements. Specific requirements are determined by the 
particular State, Federal, and local government regulations which 
mandate actions when health hazards are found in target housing or 
child-occupied facilities. EPA, however, strongly recommends that 
property owners or other decision makers take appropriate actions to 
reduce or eliminate hazards. Finally, the standards provide property 
owners and other decision makers with the Federal government's best 
judgement concerning lead dangers in residential paint, dust, and soil.
    The standards were established assuming that property owners and 
other decision makers would identify and control hazards in all three 
media (i.e., paint, dust, and soil). Failure to take a multimedia 
approach may not provide adequate protection to children. First, the 
protectiveness of the standards assumes that all media will be 
appropriately addressed. Second, failure to address one or more medium 
leaves children at risk from exposure to lead in media that are not 
addressed. Third, failure to address one or more media reduces the 
effectiveness of hazard control actions that are taken due to 
recontamination of one media from lead in another. Fourth, the Agency 
believes that soil can be a source of exposure whenever it is 
accessible for either incidental ingestion or tracking into a home, and 
that while grass and other coverings may be effective in significantly 
reducing potential exposures, such coverings must be maintained in 
order to provide continuing protection.

F. Summary of the Final Rule

    1. Hazardous lead-based paint (Sec. 745.65(a)). The hazard standard 
for lead-based paint, called the ``paint lead hazard,'' is any of the 
following:
    a. Any lead-based paint on a friction surface that is subject to 
abrasion and where the lead dust levels on the nearest horizontal 
surface underneath the friction surface are equal to or greater than 
the dust hazard levels.
    b. Any damaged or otherwise deteriorated lead-based paint on an 
impact surface that is caused by impact from a related building 
component.
    c. Any chewable lead-based paint surface on which there is evidence 
of teeth marks.
    d. Any other deteriorated lead-based paint in residential buildings 
or child-occupied facility or on the exterior of any residential 
building or child-occupied facility.
    The purpose of identifying almost all deteriorated lead-based paint 
as a paint lead hazard is to alert the public to the fact that all 
deteriorated lead-based paint should be addressed--through use of paint 
stabilization or interim controls. Something less than abatement and 
certified personnel, however, would be needed to undertake interim 
controls or to abate lower levels of deterioration.

[[Page 1211]]

Two existing HUD and EPA rules provide the applicable standards: HUD 
rules under sections 1012 and 1013 of Title X published on September 
15, 1999 (61 FR 50140), and EPA work practice rules under section 402 
of TSCA published on August 29, 1996 (61 FR 45778) (FRL-5389-9). In 
general, these rules provide that occupant protection procedures, 
clearance testing, use of certified personnel or other similar 
specialized lead hazard control practices and procedures are not 
required if one or more of the following conditions exist:
    a. Two square feet or less of deteriorated lead-based paint in a 
room.
    b. Twenty square feet or less of deteriorated exterior lead-based 
paint;
    c. Ten percent of the total surface area on an interior or exterior 
type of component with a small surface area consist of deteriorated 
lead-based paint.
    2. Dust standards. Today's regulation includes two standardsfor 
dust: hazard levels for floors (including carpeted floors) and interior 
window sills (Sec. 745.65(b)) and clearance standards for floors 
(including carpeted floors), interior window sills, and window troughs 
(Sec. 745.227(e)(8)(viii)). The dust-lead hazard standards are 40 
g/ft2 for floors based on a weighted average of all 
wipe samples and 250 g/ft2 for interior window 
sills based on a weighted average of all wipe samples. The weighted 
average, or weighted arithmetic mean, means the arithmetic mean of 
sample results weighted by the number of subsamples in each sample. Its 
purpose is to give influence to a sample relative to the surface area 
it represents.
    The clearance standards for dust following an abatement are 40 
g/ft2 for floors, 250 g/ft2 for 
interior window sills, and 400 g/ft2 for window 
troughs. The dust-lead level must be less than the applicable standard 
for the surface to pass clearance. Clearance standards are used to 
evaluate the effectiveness of cleaning following an abatement, and EPA 
may also use these standards in future rulemakings to evaluate the 
effectiveness of cleaning following a renovation and remodeling 
project. Properties that undergo abatement must pass clearance 
according to the work practice standards for abatement found at 40 CFR 
745.227. If a property fails clearance, it must be recleaned until it 
passes, although it is not automatically necessary to reclean the 
entire property when clearance fails, such as when some of the visual 
and dust-testing clearance results have indicated that portions of the 
property are already cleared.
    3. Soil standards. Today's regulation establishes the following 
standards for bare residential soil: a hazard standard of 400 ppm by 
weight in play areas based on the play area bare soil sample and an 
average of 1,200 ppm in bare soil in the remainder of the yard.based on 
an average of all other samples collected. See Sec. 745.65(c). The 
final rule also identifies lead-contaminated soil as soil with levels 
equal to or greater than these soil-lead hazard standards.
    Property owners and other decision makers should implement 
effective measures to reduce or prevent childrens' exposure to lead in 
soil that exceeds these levels. These measures may incorporate, but are 
not limited to, interim controls that include covering bare soil and 
placement of washable doormats in entryways. The need for more 
permanent controls should be determined with consideration of local 
conditions and usage patterns, the relative risks from different lead 
sources, and the potential for exposures to change over time.
    4. Summary of other actions. Today's rule also amends existing 
regulations for lead-based paint activities including:
    a. Requirements for interpreting the results of a lead-based paint 
risk assessment sampling for purposes of determining if lead-based 
paint hazards are present.
    b. Changes to the risk assessment work practice standards at 40 CFR 
745.227 to require testing of all deteriorated paint on surfaces with a 
distinct painting history to determine if the paint is lead-based.
    c. Changes to the dust and soil sampling locations in the risk 
assessment work practice standards at 40 CFR 745.227.
    d. Work practice standards for the management of soil removed 
during an abatement.
    e. Amendments to the State and Tribal program authorization 
requirements under 40 CFR part 745, subpart Q; and
    f. Amendment to the definition of ``abatement'' at 40 CFR 745.223 
to make it clear that abatement does not include removal of paint, 
dust, and soil unless lead-based paint hazards are present in those 
media.

G. Limitations of the Hazard Standards

    As stated in the proposed rule (63 FR at 30304), there is 
significant confusion about the requirements and purpose of the TSCA 
section 403 regulations. Consequently, EPA felt it necessary in the 
preamble to the proposed rule to highlight major limitations and other 
issues related to the scope and use of the regulation. These statements 
continue to apply. To summarize, the regulation does not establish a 
new definition for lead-based paint. The hazard standards apply to 
conditions observed when the risk assessment was performed. The 
standards do not address the potential for a hazard to develop. The 
standards apply to target housing, but may be used as guidance for 
other residential property. Finally, the standards are intended to 
identify dangerous levels of lead, not housing that is free from risks 
associated with exposure to lead.
    As stated in Unit II.F.3., today's rule establishes two hazard 
standards for bare residential soil; 400 ppm for play areas and an 
average of 1,200 ppm for the rest of the yard. EPA recommends that 
organizations and individuals consider some action in certain areas 
even where levels in bare soils are below the hazard standard, 
particularly, if there is a concern that children 6 years and under 
might spend substantial time in such areas, or if there is concern that 
the bare soil in such areas may contribute to lead levels in the 
dwelling, or in the play areas. However, this rule does not mandate 
that any action be implemented when levels are found to be below the 
lead hazard standard. Moreover, the kind of response that organizations 
and individuals might consider could include modest actions such as 
planting grass (or other ground cover) to more extensive actions such 
as covering the bare soil with several inches of clean fill.
    As indicated in Unit II.E., it is also important to emphasize that 
this rule only applies to pre-1978 target housing and certain child-
occupied facilities, and that these standards were not intended to 
identify potential hazards in other settings. If one chooses to apply 
the hazard level to situations beyond the scope of Title X, care must 
be taken to ensure that the action taken in such settings is 
appropriate to the circumstances presented in that situation, and that 
the action is adequate to provide any necessary protection for children 
exposed. See also Unit IV.D. for a discussion regarding the 
relationship of the soil hazard standard to Superfund soil cleanup 
standards.

H. Preamble Overview

    The remainder of this preamble consists of four units. Unit III. 
presents an explanation of the Agency's decisions. It includes a 
summary of the proposal, identifies the major changes between the 
proposed and final rules, and explains the changes. Unit IV. presents a 
discussion of some of the more significant issues raised by the public 
comments. Unit V. contains the

[[Page 1212]]

references for sources used in this preamble. Unit VI. is the 
regulatory assessment unit, which deals with the Federal requirements 
for agency rulemaking that are imposed by various statutes and 
executive orders. Unit VII. discusses the Congressional Review Act 
requirements.

III. Explanation of the Agency's Decisions

A. Summary of the Proposed Regulation

    EPA published the proposed regulations on June 3, 1998 (63 FR 
30302) (FRL-5791-9). The proposed standard for hazardous lead-based 
paint was lead-based paint in poor condition, defined as more than 10 
ft2 of deteriorated lead-based paint on exterior components 
with large surface areas, more than 2 ft2 of deteriorated 
lead-based paint on interior components with large surface areas, or 
deteriorated lead based paint on more than 10% of the total surface 
area of interior or exterior components with small surface areas. 
Lesser amounts of deteriorated paint were considered de minimis levels 
and were not considered hazards. The proposed standard for a dust lead 
hazard was the average level of lead in dust that equals or exceeds 50 
g/ft2 on uncarpeted floors and 250 g/
ft2 on interior windows sills. The proposed standard for 
soil-lead hazard was lead that equals or exceeds 2,000 ppm based on a 
yard-wide average soil-lead concentration. A soil-lead level of 
concern, proposed to be 400 ppm, was included in draft guidance but not 
in the proposed regulation. The statutory basis for the level of 
concern was the section 403 requirement that EPA identify ``lead-
contaminated soil,'' which the Agency interpreted to be a level less 
than the soil-lead hazard. EPA used the term ``level of concern'' 
instead of ``lead-contaminated soil. EPA proposed that lead-based paint 
hazards be identified by certified risk assessors performing risk 
assessments according to the work practice standards at 40 CFR 745.227.
    The June 3, 1998 document also proposed amendments to existing 
regulations for lead-based paint activities including:
    1. Clearance standards for dust following an abatement of 50 
g/ft2 for uncarpeted floors, 250 g/
ft2 for interior window sills, and 800 g/
ft2 for window troughs.
    2. Requirements for interpreting the results of a lead-based paint 
risk assessment sampling for purposes of determining if lead-based 
paint hazards are present.
    3. Changes to the dust and soil sampling locations in the risk 
assessment work practice standards at 40 CFR 745.227.
    4. Work practice standards for the management of soil removed 
during an abatement; and
    5. Amendments to the State and Tribal program authorization 
requirements under 40 CFR part 745, subpart Q.

B. Summary of Significant Changes from the Proposed Regulation and 
Other Major Decisions

    This section of the preamble briefly presents the major changes 
between the proposal and final rule. EPA also identifies major 
provisions of the proposed regulation that remain unchanged in the 
final rule. Unit II.D. of the preamble presents the Agency's 
explanation for these decisions.
    1. Dust standards. The final rule changes the lead-based paint 
hazard standard for dust, known as the dust-lead hazard, and the 
standard for dust clearance for floors to 40 g/ft2. 
In addition, the dust-lead hazard will apply to all floors, including 
carpeted floors. It will not be limited to bare floors. The final rule 
does not change the dust-lead hazard for interior window sills. Today's 
action lowers the clearance level for window troughs from the proposed 
800 g/ft2 to 400 g/ft2. In 
addition, the final rule modifies the method for interpreting composite 
dust clearance samples. Under the proposed rule, the result of the 
composite sample would have been compared to the clearance level 
divided by the number of subsamples in the composite. The final rule 
requires the result of the composite sample to be compared to the 
clearance level divided by half the number of subsamples in the 
composite.
    2. Soil standards. With respect to the soil standards, there are 
several changes from the proposed rule. First, EPA is not establishing 
any distinction between lead-contaminated soil (soil lead ``level of 
concern'') and soil-lead hazards. Instead, EPA is, in the preamble, 
simply identifying lead-contaminated soil as soil with levels equal to 
or greater than the soil-lead hazard standards. For purposes of this 
rule ``lead-contaminated soil'' is the same as a ``lead-based paint 
hazard'' based on soil lead.''
    Second, in the final rule EPA is establishing the lead-based paint 
hazard standard for bare soil, known as the soil-lead hazard standard, 
to have one hazard level for play areas and another for the remainder 
of the yard. The proposed rule did not give special attention to play 
areas and made the hazard determination based on the whole yard only. 
From the proposed 2,000 ppm for bare soil in the entire yard, EPA is 
setting a final soil-lead hazard of 400 ppm for bare soil in play areas 
and an average of 1,200 ppm for bare soil in the non-play area portion 
of the yard.
    3. Paint standards. The paint component of the lead-based paint 
hazard standards is known as the paint-lead hazard. The paint-lead 
hazard consists of three standards: Deteriorated lead-based paint; 
lead-based paint on friction and impact surfaces; and lead-based paint 
on accessible (chewable) surfaces.
    a. Deteriorated paint. EPA considers that, in general, any 
deteriorated lead-based paint needs to be addressed and should be 
considered a paint-lead hazard. Accordingly, in the final rule the 
Agency does not have a de minimis level of deteriorated paint for the 
paint-lead hazard. Instead, the final rule simply refers to work 
practice and certification regulations issued by HUD and EPA that apply 
to dealing with paint-lead hazards. These regulations provide that 
occupant protection procedures, clearance testing, use of certified 
personnel or other similar specialized lead hazard control practices 
and procedures are not required at lesser levels of paint 
deterioration. These specific levels of deterioration are (i) Two 
square feet or less of deteriorated lead-based paint per room; (ii) 
twenty square feet or less of deteriorated exterior lead-based paint; 
(iii) ten percent of the total surface area on an interior or exterior 
type of component with a small surface area.
    b. Friction and impact surfaces. The standard in the final rule for 
the paint-lead hazard on friction surfaces is lead-based paint that is 
subject to abrasion where the lead dust levels on the nearest 
horizontal surface underneath the friction surface are equal to or 
greater than the lead-dust hazard levels. The paint-lead hazard for 
impact surfaces is any damaged or otherwise deteriorated paint on an 
impact surface that is cause by impact from a related building 
component. No minimum area threshold of paint deterioration applies to 
friction or impact surfaces. In the proposed rule, EPA did not include 
a preferred option for these surfaces. The Agency, instead, solicited 
public comment on a range of options including: Lead-based paint 
regardless of condition on a friction/impact surface; abraded lead-
based paint on a friction/impact surface; and no separate standard.
    c. Surfaces accessible for chewing or mouthing. The standard for 
the paint-

[[Page 1213]]

lead hazard on accessible surfaces, referred to as ``chewable'' 
surfaces in the final rule, is any chewable lead-based paint surface on 
which there is evidence of teeth marks. No minimum area threshold 
applies to deteriorated lead-based paint on accessible surfaces. In the 
proposed rule, EPA did not include a preferred option for these 
surfaces. The Agency, instead, solicited public comment on a range of 
options including: Lead-based paint regardless of condition on interior 
window sills up to 5 feet off the floor; and no separate standard for 
accessible surfaces. EPA has eliminated the 5-foot requirement.
    4. Requiring certified risk assessors to determine the existence of 
lead-based paint hazards. The final rule does not include a requirement 
that the presence of lead-based paint hazards must be determined by 
certified risk assessors following the risk assessment work practice 
standards at 40 CFR 745.227.

C. Explanation of the Agency's Decisions

    In this section of the preamble, EPA provides its reasons for 
choosing the final TSCA section 403 standards for lead-based paint 
hazards (which includes paint-lead, dust-lead, and soil-lead hazards) 
and its final determination for what constitutes lead-contaminated dust 
and residential soil. In addition, EPA provides its reasons for 
establishing the clearance levels for household dust--measures of dust 
in lead that will show that hazards have been appropriately cleaned.
    The choice of the particular methodologies used to develop each of 
these standards constitutes another important set of decisions. Hazard 
levels for dust and soil were developed using an analysis of risk, the 
potential for risk reduction (considering uncertainties in the data and 
scientific evidence describing the risks), and the cost of reducing 
risk. In determining the paint-lead hazard, EPA has decided that any 
deteriorated lead-based paint would result in adverse health effects, 
based on information submitted in public comments and other information 
in the rulemaking record. The Agency has been unable to determine any 
level of deteriorated lead-based paint that should not be considered a 
paint-lead hazard.
    The general outline of these methodologies is referred to in later 
sections of this Unit and, where applicable, incorporates into the 
final rule those decisions made in the preamble to the proposed rule.
    1. Basis for dust and soil standards. As a preliminary matter, EPA 
has found, after considering all significant public comments and all 
other information in the rulemaking record, that the legal 
interpretations and policy decisions in the preamble to the proposed 
rule form the basis for the final decisions discussed in this preamble, 
except as indicated below. EPA hereby incorporates, for purposes of 
this final rule, the relevant reasoning and analyses from the proposed 
preamble, as indicated below. Any modifications to the analyses or 
reasoning from the preamble to the proposed rule will be specifically 
explained in this preamble, the Reponse to Comment (RTC) document, or 
other documents in the record, and are supported by the record for the 
final rule.
    a. Legal basis. Details of the basic legal structure of Title X and 
the legal effect of the issuance of regulations under TSCA section 403, 
including the responsibilities of EPA and HUD, are set forth in the 
preamble to the proposed rule (63 FR 30306) and need not be repeated 
here. There EPA provided a detailed discussion of its views at the time 
of the statutory mandate and the statutory criteria, including the 
Agency's interpretation of relevant terms and the statutory basis for 
the Agency's decision to use particular criteria to develop the 
determination for what constitutes lead-contaminated dust and lead-
contaminated soil and the hazard standards for dust, soil and paint at 
(63 FR at 30311-30315). EPA has modified some of these interpretations 
and retains others, as discussed below.
    EPA needs to define three terms under TSCA section 403, ``lead-
based paint hazards,'' ``lead-contaminated dust'' and ``lead-
contaminated soil.'' Lead-based paint hazards consist of lead-
contaminated paint, lead-contaminated dust and lead-contaminated soil 
that ``would result'' in adverse health effects.
    Section 401(9) of TSCA provides a definition of lead-based paint, 
which EPA interprets to be lead-contaminated paint for purposes of this 
rule. EPA noted that lead-based paint is not, under the statute, a 
risk-based term, but only a benchmark that identifies material subject 
to jurisdiction of the authorities of TSCA and Title X. Not all lead-
based paint is a hazard, only that paint which EPA determines ``would 
result'' in adverse health effects. EPA has determined, as discussed 
below, that the dust and soil levels designated as lead-based paint 
hazards are also identified as ``lead-contaminated dust'' and ``lead-
contaminated soil.'' This equating of dust and soil contamination with 
``lead-based paint hazards'' caused by dust and soil lead represents a 
change from the reasoning in the preamble to the proposed rule. EPA's 
reasons for this change are discussed below.
    EPA generally refers to the hazards in each of the media as 
``paint-lead hazards,'' ``dust-lead hazards'' and ``soil-lead 
hazards.''
    i. Decision on contaminated dust and soil. While section 403 
obligates the Agency to identify lead-based paint hazards, lead 
contaminated dust, and lead-contaminated soil, the legislative history 
and statutory text are themselves silent on how Congress intended the 
Agency to differentiate between the standard for soil contamination 
(the level of lead in soil determined to be hazardous to human health), 
dust contamination (the level of lead in dust that poses a threat of 
adverse health effects in pregnant women or young children), and the 
levels of contaminated dust or soil that constitute a lead-based paint 
hazard (a condition that would result in adverse human health effects). 
Further, the terms ``lead-contaminated dust'' and ``lead-contaminated 
soil'' have no significance under either TSCA or Title X except insofar 
as the level of contaminated dust or soil constitutes a ``lead-based 
paint hazard''.
    In the proposed rule EPA considered that, because the statute 
required the identification of ``lead contaminated'' dust and soil, the 
Agency needed to establish separate levels for these terms than for 
``lead-based paint hazards'' resulting from contaminated dust or soil. 
Furthermore, EPA proposed, based on the statutory language and the 
structure of the statute, that the determination of whether dust or 
soil were contaminated required less certainty than whether such dust 
or soil constituted a hazard. See 63 FR 30311-12. In the preamble to 
the proposed rule EPA set the ``contamination'' levels, then called 
``levels of concern,'' at those levels the Agency determined could 
result in a 1 to 5% probability of an individual child's exceeding a 
blood lead level of 10 g/dL. See 63 FR 30316-30317.
    EPA noted, however, that the terms, ``lead-contaminated'' dust and 
soil have no direct effect on any activities subject to regulation 
under Title X. For example, no certification requirements are imposed 
for persons who remove lead-contaminated soil, only for those who 
remove soil associated with soil-lead hazards. Because the 
contamination levels do not affect other activities under Title X or 
TSCA Title IV, EPA proposed not to include them in the regulatory 
language. EPA only proposed to adopt in guidance to accompany the final 
rule a separate level for lead-contaminated soil of 400

[[Page 1214]]

ppm for the entire yard. EPA did not propose to adopt a separate 
standard for contaminated dust, since it found substantial overlap in 
its analysis and could not distinguish between dust-lead contamination 
and dust-lead hazards.
    EPA received a significant number of comments criticizing the 
establishment of these ``contamination'' levels, particularly for soil, 
primarily because setting two levels for ``contamination'' and 
``hazard'' would confuse the public. Other comments claimed EPA had no 
authority to establish separate contamination levels, as opposed to 
hazard levels.
    While the Agency clearly has authority to establish separate levels 
for contaminated dust and soil, given the comments, the lack of clear 
statutory direction, and the lack of significance of the terms in the 
statutory structure, the Agency has determined not to establish any 
separate levels for contaminated dust or soil beyond those levels that 
constitute a lead-based paint hazard. The Agency believes it sufficient 
for purposes of TSCA and Title X to conclude that, at a minimum, the 
quantity of lead in dust or soil found to result in conditions that 
cause exposure to lead that would result in adverse human health 
effects (i.e., constitutes a lead-based paint hazard) is ``lead-
contaminated dust'' and ``lead-contaminated soil,'' respectively. 
Accordingly, for purposes of this regulation, the dust and soil levels 
designated as lead-based paint hazards are also identified as ``lead-
contaminated dust'' and ``lead-contaminated soil''.
    ii. Weight of evidence for dust and soil hazard standards. EPA's 
dilemma in determining what constitutes dust-lead and soil-lead hazards 
is based on the Agency's recognition that any determination of hazard 
requires a great deal of judgment in the case of lead health risks 
where, ``as a practical matter, all the scientific evidence is 
uncertain to some degree . . .'' (See preamble to the proposed rule at 
63 FR 30313.) Making judgments on the science varies to a large extent 
with respect to three issues: How to determine which blood lead levels 
are truly hazardous; how to interpret the statutory language ``result 
in adverse human health effects,'' when uncertainties exist; and how 
best to account for uncertainties in the risk analyses that relate 
environmental lead levels to blood lead levels and the prevalence data 
that is used in this analysis.
    The resolution of these issues, at best, produces a continuum 
where, at one end, blood and environmental levels exist that everyone 
would agree constitute a hazard. At the other end, approaching blood 
lead levels in the general population (averaging lower than 5 
g/dL) or typical environmental levels (generally, less than 
the hazard levels found in this regulation), greater uncertainty exists 
on how to model the likelihood of health effects. This is compounded by 
having to factor in uncertainties of the effects of both blood lead 
levels and the associated environmental levels. This is because, even 
if EPA has confidence in the blood lead levels of concern, the Agency 
still faces the uncertainty of associating blood lead with 
environmental levels in each medium, as well as possible effects from 
other sources--for example, water and air emissions.
    In addressing the first issue, the Agency has chosen 10 g/
dL as the blood-lead level of concern. This value is equal to the level 
of concern recommended by the CDCP and the Agency's reasons for 
choosing this value are explained in the next section of this preamble.
    As to the second issue, the challenge to the Agency is how to deal 
with the statutory criterion, ``would result in adverse human health 
effects.'' This is especially problematic because the statutory 
mandated activity that requires EPA to choose a cutoff for when this 
risk exists does not lend itself to a straightforward empirical 
analysis that provides bright lines for decision makers. Even if the 
science and environmental-lead prevalence data were perfect, there 
would likely be no agreement on the level, or certainty, of risk that 
is envisioned in the phrase ``would result in adverse human health 
effects.'' Thus, it would not be appropriate to base a lead-based paint 
hazard standard on any specific probability of exceeding any specific 
blood-lead level.
    The Agency therefore elected to take a pragmatic approach to 
setting the hazard standards namely, evaluating the amount of risk 
reduction that the hazard standards could provide. That is, rather than 
trying to select standards based solely on model-based probability 
distributions (which is even further complicated by the fact that 
different models produce different results), the Agency looked at the 
consequences of the standards based on the assumption that, if EPA 
calls something a ``lead-based paint hazard,'' all persons would act 
rationally in their own best interests and would permanently eliminate 
(abate) these hazards before a child is about to become exposed to 
them. This is the so-called ``normative'' analysis referred to in the 
preambles to the proposed and final rule and discussed in detail in the 
economic analyses and preambles for the proposed and final rules. 
(EPA's analysis for using this method for determining what constitutes 
dust and soil hazards is discussed in detail in the preamble to the 
proposed rule at 30312-15. That analysis is incorporated as the final 
interpretation of the Agency on this matter and will not be repeated in 
great detail here. Later in this preamble, EPA responds to the various 
public comments on its analysis of the appropriate method for 
determining dust and soil lead-hazards under TSCA section 403.)
    Also, identification of lead-based paint hazards under this 
regulation is sure to have impacts that could be expensive even though 
the range of expenses is, itself, difficult to resolve because of the 
uncertainty of individual behavior and the willingness of individuals 
to accept risks that EPA may identify. Thus, if EPA were to choose 
standards that are too low, the public could be unable to distinguish 
between trivial risks at the low levels of lead from the more serious 
risks at higher levels. This could result in clean up for little to no 
health benefit, or conversely, it could result in almost no clean up 
because persons would question the credibility of the ``hazard'' 
determination. Thus, they may ignore even those high risk situations 
that need to be controlled. On the other hand, if the Agency chooses 
standards that are too high, actual adverse effects could occur at 
levels below that. EPA's dilemma is to draw this line.
    Based on the language of section 403, the purposes of Title X and 
its legislative history, and basic policy decisions, EPA determined 
that it was a reasonable exercise of its discretion to draw this line 
based on consideration of the potential for risk reduction of any 
action taken (considering uncertainties in the data and the scientific 
evidence describing the risks) and whether such risk reductions are 
commensurate with the costs of those actions. This is commonly referred 
to as cost-benefit balancing. In this rule, EPA used cost-benefit 
balancing to assist in identifying the hazard standards. This method 
was useful because available data run through various models showed a 
range of environmental levels that could be associated with a 
particular blood-lead level (the surrogate used to approximate risk) 
and the potential reduction in blood-lead concentration/risk that could 
result from eliminating or controlling the environmental level. Given 
this range, EPA used cost-benefit balancing to assist in selecting the 
specific

[[Page 1215]]

standards for this rule from within the range bounded by the results of 
the models.
    Using this approach, the Agency is better able to deal with the 
third issue identified above how to best consider and account for the 
strengths and weaknesses of its risk assessment tools and data. For 
example, in estimating the number of homes that would be identified as 
hazards at various environmental lead levels, the Agency relied upon 
data from the HUD National Survey. Obviously, when assessing the 
impacts of standards at lower environmental lead levels, estimates are 
more likely to be inaccurate due to the presence of outliers in the 
data than would be the case in the middle range of the data. 
Additionally, the Agency must consider the range of exposures over 
which its models relating environmental lead to blood lead can be 
expected to perform well and the sensitivity of those models to the 
data inputs. By considering at which points in its analyses the data 
and models are strongest and weakest, the Agency can identify where in 
its analyses the greatest levels of certainty exist. Consideration of 
these factors is described in section 3.b., which discusses the 
selection of the dust and soil hazard levels.
    b. Choosing the lowest candidate hazard standards. While EPA is no 
longer considering the determination of what constitutes lead-
contaminated dust or soil to be governed by different standards from 
those used in the determination of what constitutes dust or soil-lead 
hazards, the analysis used in the proposal to determine the 
contamination standards is still relevant to the consideration of 
options for the hazard standards. This is because the effect of 
choosing the proposed dust and soil lead contamination standards based 
on a 1 to 5% probability of an individual child's having blood lead 
levels exceeding 10 g/dL was to establish the lowest candidate 
hazard standards. In the proposal, this was for dust 50 g/
ft2 on uncarpeted floors and 250 g/ft2 
for sills and for soil 400 ppm in the entire residential yard. 
Additional analysis, as noted below in discussion of the dust and soil 
hazard level determination, was applied to actually develop the hazard 
standards.
    Furthermore, as noted above, the determination of which blood lead 
levels are truly hazardous (the blood lead level of concern) was the 
first scientific issue EPA had to decide in selecting dust and soil 
lead hazards.
    Accordingly, EPA adopts as the basis determining the lowest 
candidate standards for the final dust and soil lead hazards the same 
policy basis used in the proposal for choosing dust and soil lead 
contamination levels--a 1 to 5% probability of a child's developing a 
blood lead level of 10 g/dL.
    The choice of 10 g/dL is based on a significant body of 
scientific evidence, extensively cited in the preamble to the proposed 
rule, that shows that a number of significant health effects manifest 
themselves in the 10-15 g/dL range. EPA hereby incorporates as 
the basis for its final decision on the blood lead concentration of 
concern all relevant discussions in the preamble to the proposed rule, 
particularly the discussion at 63 FR 30316-17. The Agency's decision is 
supported by past statements made by the Clean Air Science Advisory 
Committee and is consistent with Federal policy established by the CDCP 
and the recommendations of the National Academy of Sciences (NAS). The 
Agency wishes to emphasize, as it stated in the proposed rule, that 
this choice does not imply that 10 g/dL is a threshold level. 
On the contrary, EPA maintains its position that there is no known 
threshold for lead. EPA decided not to use a level lower than 10 
g/dL because the evidence indicates that health effects at 
lower levels of exposure are less well substantiated, based on a 
limited number of children, and observation of subtle molecular changes 
that are not currently thought to be sufficiently significant to 
warrant national concern.
    The choice of probability is based on the Agency's interpretation 
of the statute and the limits of EPA's analytical tools. The Agency 
rejected the lowest possible probability, which is zero. Even without 
lead-based paint and lead-contaminated soil and dust, there could be 
some small mathematical probability that a child could still have a 
blood-lead level equaling or exceeding 10 g/dL. This is 
because other sources of exposure (e.g., air, water, diet, and 
background levels of lead) remain. Because under the statute EPA may 
only account for risks associated with paint, dust and soil, a zero 
exceedence probability would not make sense for this rule.
    In addition, EPA's assessment for this rule indicates that, as a 
practical matter, in the context of establishing on a national level 
the initial candidate for the hazard level, the probabilities that 
given environmental levels of lead ``would result'' in blood lead 
levels of concern, 1% is not distinguishable from 5% in estimating 
risks from soil lead. This is because, within the context of the 
analyses for this rule, there was substantial overlap in estimates of 
risk from soil lead within the 1 to 5% risk range. This overlap is due 
to the uncertainty and variability related to EPA's analyses to 
associate low levels of lead in a specific environmental medium to 
blood-lead concentrations and limited data. For example, results from 
models used to relate environmental levels to blood lead levels vary 
depending upon what is assumed about the interrelationship between dust 
and soil. Also, in the performance characteristics analysis (explained 
below), the number of children was small, yielding similar results for 
a 1% exceedence as for a 5% exceedence. In effect, EPA is setting the 
exceedence probability as close to zero as it is able (within 
analytical limits of its analyses) for the effects of lead paint and 
lead in dust and soil.
    In addition, given the data and analytical tools available to 
support this rulemaking, the Agency determined that, as a practical 
matter, 1% is not distinguishable from 5%. This overlap is due to the 
uncertainty and variability related to any effort to associate low 
levels of lead in a specific environmental medium to blood-lead 
concentrations and limited data. For example, in the performance 
characteristics analysis, the number of children was small, yielding 
similar results for a 1% exceedence as for a 5% exceedence. In effect, 
EPA is setting the exceedence probability as close to zero as it is 
able (within analytical limits of its analyses) for the effects of lead 
paint and lead in dust and soil.
    At the other end of the range considered by EPA was an exceedence 
probability of 10%. With this distribution of risk, a child would have 
approximately a 2% chance of having a blood-lead concentration 
exceeding 15 g/dL and a less than 1% chance of having a blood-
lead concentration exceeding 20 g/dL, the level at which CDC 
recommends medical intervention. In the proposal's discussion of the 
contamination standard, the Agency rejected this probability as 
presenting exceedingly high risks. For determination of a hazard level, 
they would also be excessively high. EPA believes it is inconsistent 
with the statute to establish a hazard standard at which significant 
numbers of children would need medical treatment.
    c. Basis for the dust and soil hazard standards. As explained in 
the preamble to the proposal, EPA used cost-benefit balancing to 
establish a range of options for hazard standards. EPA then selected 
its preferred options based on consideration of relevant factors, 
including the assumptions and tools underlying EPA's analysis, health

[[Page 1216]]

protectiveness, cost, and the effect on the overall lead risk reduction 
program (63 FR at 30314-30315). The Agency refers the public to the 
proposal for the detailed discussion of its reasoning for choosing the 
approach to develop the hazard standards. EPA's approach for using cost 
benefit analysis is described in the proposed rule and is used for the 
final rule.
    In this document, EPA wishes to highlight several points that merit 
special attention. First, the various modeling techniques used by EPA 
only established a range of possible answers upon which the Agency 
exercised its administrative judgement. EPA used its quantitative 
modeling as a tool to establish the boundaries of the Agency's inquiry, 
not as the sole basis for decisions. Because precise values cannot be 
assigned to risks (or costs), any cost-benefit balancing is 
appropriately used to help select an option within a range for the 
hazard standards. The Agency then selected its preferred options, from 
within the range bounded by the modeling results, based on 
consideration of relevant factors, including the weight of the evidence 
of harm, assumptions and tools that underlie EPA's analysis, as well as 
other factors, including health protectiveness and total costs.
    To support the establishment of a range of options, EPA used a 
normative analysis which assumes that all hazards to young children 
will be identified and controlled. EPA adopted this approach not only 
in view of the obvious imprecision in its ability to estimate how the 
public will actually respond in terms of the number and scope of hazard 
control interventions that will be implemented in response to the 
standards, but also with the objective of allowing Agency decision-
makers to compare costs and benefits. Thus, while the Agency can only 
estimate the theoretically possible costs and benefits associated with 
each option, not the actual costs and benefits, EPA is confident that 
the relative balance of costs and benefits estimated is unlikely to be 
very different from the relative balance of actual costs and benefits.
    Finally, EPA wishes to emphasize that there is no set way to apply 
the balancing of costs and risk reduction. Where standards would 
require the high expenditure of resources, the level of risk reduction 
(considering both the toxicity of lead and the probabilities of 
exposure) and the strength of evidence should be correspondingly high. 
On the other hand, if the costs of standards are relatively low, the 
level of risk reduction and the strength of the evidence could be less 
compelling. As stated in the preamble to the proposed rule and as 
adopted in today's final rule, the determination on soil standards 
considers the fact that relatively high costs may be incurred to abate 
residential soils. Consequently, under a cost-benefit balancing 
concept, before selecting an option associated with high costs, EPA 
would want a greater measure of confidence that the standard would 
result in a higher level of risk reduction.
    EPA recognizes that resources for abatement to address lead risks 
to children are often limited and that societies often have to set 
priorities. Therefore, establishing numerically low national standards 
could serve to dilute resources across more properties and communities 
instead of steering resources to address situations that present 
clearer, more certain risk. Along the same line of reasoning, the 
Agency believes that it is sound public policy for the hazard standard 
to embody a ``worst first'' approach that will aid in setting 
priorities to address the greatest lead risks promptly.
    With respect to the paint component, data limitations prevented EPA 
from quantifying the costs and benefits of the options considered in 
the proposal (as well as for the final rule). Consequently, EPA's 
decisions with respect to the options for the paint component involved 
a more qualitative judgment on the part of the Agency in the proposal, 
as well as in the final rule. Later in this unit, EPA explains its 
decision for identifying what constitutes hazardous lead based paint.
    2. Technical analyses. To support the development of the dust and 
soil hazard standards in this rule, EPA required tools to relate lead 
in the environment to blood-lead concentration. As described in the 
proposal to the proposed rule, EPA used several methods for this 
purpose: a mechanistic model that has been calibrated and validated 
with various empirical dataset and which simulates the body's response 
to lead exposure, and both modeling and non-modeling analyses of 
empirical data from the Rochester Lead in Dust Study. The mechanistic 
model is the Agency's Integrated Environmental Uptake and Biokinetic 
(IEUBK) model. The empirical data used in the modeling and non-modeling 
analysis to support this rule was obtained from a study of lead in 
Rochester, New York entitled ``Rochester Lead-in-Dust Study.'' The 
preamble to the proposed rule (63 FR 30315 ) contains a general 
overview of these tools. Given the uncertainties and limitations 
associated with any single approach, EPA decided that it would be 
helpful to obtain several perspectives (with different associated 
strengths and weaknesses) on the relationship between environmental 
lead and blood lead levels.
    EPA thoroughly evaluated its choice of methods in response to 
public comments and all other information available to the Agency. EPA 
has concluded that it is appropriate to use the same methodology for 
its final decision. Based upon public comments and all other 
information in the rulemaking record, the Agency also recalculated the 
numerical results obtained for the proposed rule. These recalculations 
did result in some changes to the standards from those proposed, as is 
explained below.
    a. Initial candidate hazard levels--i. Dust. For development of the 
proposed dust-lead contamination level (referred to as the level of 
concern) EPA used: A multimedia model based on the data from the 
Rochester Lead-in-Dust study and a performance characteristics analysis 
of the Rochester data. The reasons for using these models and their 
implementation is explained in the preamble to the proposed rule (63 FR 
at 30317-30319) in the Units titled ``c. Characterizing individual 
risk.'' and ``d. Dust analysis.'' For purposes of this analysis for 
determining the initial candidate levels for the final hazard 
standards, however, EPA judges it is appropriate to continue to use the 
same model, based on the same reasoning.
    The multimedia model yielded the following results. The levels of 
lead in dust on floors associated with an individual child having from 
a 1 to 5% chance of having a blood-lead concentration equal to or 
exceeding 10 g/dL range from near zero to 6.7 g/
ft2. The range for dust loadings on window sills is from 
near zero to 74 g/ft2.
    The performance characteristics analysis yielded the following 
results. For floors, dust-lead loadings ranged from 50 g/
ft2 to 400 g/ft2. For interior window 
sills, dust-lead loadings ranged from 100 g/ft2 to 
800 g/ft2. These ranges were significantly higher 
than the ranges yielded by the multimedia approach.
    The performance characteristics analysis to support the 
determination that 1 to 5% of children would develop blood lead levels 
above 10 g/dL remains unchanged for the analysis in this final 
rule. The results yielded by the multimedia model would put the 
environmental dust-lead levels at which 1-5% of children would develop 
blood lead levels above 10 g/dL at near or below background 
levels and well below the residual levels that remain after homes have 
been well cleaned (i.e.,

[[Page 1217]]

the clearance levels). These results do not seem to make sense to the 
Agency since they imply that background levels in well cleaned homes 
would still be of concern from a risk perspective. Therefore, based 
upon public comments, the Agency reevaluated its analyses.
    Based upon this reassessment, EPA decided to make some revisions to 
the way it applied the multimedia model so that its results would be 
more comparable to the performance characteristics analysis. This was 
accomplished by using the same set of parameters (average soil 
concentration, dust on floors and sills, and paint conditions) and the 
same subset of data from the Rochester Lead-in-Dust Study. Following 
these changes, the order of magnitude difference in results between the 
original multimedia model and the performance characteristics model 
virtually disappears. At 50 g/ft2, the performance 
characteristics shows a 7.5% risk of equaling or exceeding 10 
g/dL and the multimedia model shows a 5.34% risk. At 40 
g/ft2, the performance characteristics shows a 5.1% 
risk of equaling or exceeding 10 g/dL and the multimedia model 
shows a 5.30% risk. That is, under these analyses, floor dust levels at 
40 g/ft2 correspond to 5% and less probability of 
blood lead levels exceeding 10 g/dL. Thus, using the revised 
model, 40 g/ft2 is the standard that better meets 
the criteria spelled out in the Agency's proposal (less than 5% 
probability of exceeding 10 g/dL). EPA provides a detailed 
description of this revised analysis in the ``Risk Analysis to Support 
Standards for Lead in Paint, Dust, and Soil: Supplemental Report.'' EPA 
accordingly has chosen 40 g/ft2 as the initial 
candidate level for the dust-lead hazard level in today's final rule.
    ii. Soil. In the proposed rule, EPA set a ``level of concern'' 
based on the Agency's IEUBK model and a performance characteristics 
analysis of the Rochester data. The reasons for using these models and 
their implementation is explained in the preamble to the proposed rule 
(63 FR 30317, 30319) in the Units titled ``c. Characterizing individual 
risk'' and ``e. Soil Analysis.'' Under the IEUBK analysis soil-lead 
concentrations generally at or below 500 parts per million (ppm) would 
result in a 1 to 5% probability that a child will have a blood-lead 
concentration that equals or exceeds 10 g/dL. The performance 
characteristics analysis for soil ranged from 200 ppm to 1,500 ppm 
correlated with 1 to 5% of children with elevated blood lead levels 
exceeding 10--g/dL. EPA chose 400 ppm as the proposed soil 
lead contamination level. EPA adopts that same level as the initial 
candidate soil hazard standard for the same reasons as provided in the 
preamble to the proposed rule for choosing 400 ppm as the soil 
contamination level.
    3. Dust and soil hazard levels. The analyses to support selection 
of the dust and soil hazard levels included evaluation of the nation-
wide reduction in risk that could potentially result from a set of 
hazard standards. EPA measured the change in risk reduction in terms of 
an estimated change in the national blood-lead distribution, equated 
this change to reductions in several adverse public health outcomes 
(e.g., IQ point loss), assigned a value to these reductions, and 
compared these public health benefits to the costs of hazard 
intervention.
    a. Methodology. EPA finds no reason to change its methodology of 
using a normative cost-benefit analysis for developing dust-lead and 
soil-lead hazards. The Agency, accordingly, adopts the reasoning set 
forth in the preamble to the proposed rule for conducting this 
analysis. The general overview of the cost-benefit analysis and its use 
in decisionmaking is provided in the preamble to the proposal (63 FR at 
30319-30320) in the introductory paragraphs to the section entitled 
``2. Dust-lead and soil-lead hazard standards''.
    The methodology for estimating risk reduction is found in the 
section entitled, ``a. Estimating risk reduction.'' (63 FR 30320) and, 
partially, in the section entitled ``b. Estimating costs and 
benefits.'' (63 FR 30321). Methodology for estimating the monetary 
value to be assigned to the value of risk reduction that may be 
achieved by actions taken in response to the hazard standards is found 
in the section entitled ``b. Estimating costs and benefits.'' (63 FR at 
30320-30321). Determination of the costs of actions that may be taken 
to reduce risk is in the same section at 30321-22 and in two paragraphs 
at 63 FR 30325 in the section entitled ``c. Results.'' The limitations, 
qualifications and uncertainties that affect both the estimates of 
benefits and costs are found at 63 FR 30322-30323 in the section 
entitled ``b. Estimating costs and benefits.''
    The Risk Assessment was designed to estimate the declines in 
children's blood lead levels that would result if abatement and other 
response actions were taken in housing units that exceeded candidate 
standards for paint, dust, and soil. While certain details of the 
analysis are complex, the basic approach is straightforward. First, a 
baseline of environmental lead and blood lead levels was established. 
These represent the ``pre-403'' conditions.
    For the pre-403 environmental lead levels, the Agency used the 
Department of Housing and Urban Development's National Survey of Lead-
Based Paint in Housing (the HUD Survey). Conducted in 1989-1990, the 
HUD Survey measured the extent and condition of lead-based paint in 
housing, the amount of lead in dust within the housing, and the amount 
of lead in soil surrounding the housing. For the pre-403 blood lead 
levels, the Agency used Phase 2 of the third National Health and 
Nutrition Examination Survey (NHANES III). Conducted by the Centers for 
Disease Control and Prevention in 1991-1994, NHANES III included 
measurements of children's blood-lead levels.
    Next, the Agency estimated the reduction in environmental lead 
levels that would result if abatements or other responses were 
performed in housing units that failed candidate standards for paint, 
dust, and soil. These levels represent the ``post-403'' environmental 
lead levels and rely upon estimates of the effectiveness and duration 
of the response actions.
    The Agency then modeled the blood lead levels that would correspond 
to the pre- and post-403 environmental lead levels. This allowed an 
estimation the blood-lead reduction that would result from the 
standards (i.e., the difference in the blood lead levels from the pre-
403 environmental levels to the post-403 environmental levels). Here, 
the Agency used two different models the Integrated Exposure Uptake 
Biokinetic (IEUBK) Model and an empirical model that was based upon the 
results of the Rochester Lead in Dust Study. Consequently, there are 
two different estimates of the blood-lead changes that would result 
from the 403 standards, one based upon each model. Finally, the two 
estimates of blood-lead changes were re-scaled by applying the pre-403 
blood-lead levels in NHANES III. EPA repeated this process for each set 
of standards under consideration.
    The two models of risk assessment were incorporated into the 
economic benefit-cost framework to generate net benefit estimates for 
the various candidate hazard standards. EPA wishes to emphasize that it 
is more important to consider the net benefit estimates relative to 
each other rather than their actual numerical value for the various 
candidate hazard standards. In order to apply these models in this 
national analysis, the models relating environmental lead to blood lead 
could not reflect the consideration of site-specific data to the extent 
that would be sought when they are applied locally.

[[Page 1218]]

Also, the Agency recognizes that the costs and benefits associated with 
the normative analysis are likely to overstate the actual costs and 
benefits associated with the standards since it is likely that not 
everyone will follow the rule recommendations and, to the extent they 
do not, benefits and costs would both be lower. This is not of great 
concern because the objective of this analysis is to provide EPA with a 
tool to compare options in terms of relative costs and benefits of each 
option, not to develop precise absolute estimates of costs and 
benefits.
    Despite the limitations and uncertainties of the analysis, the 
results for options within each model can be compared. The limitations 
may affect the estimates of absolute costs and benefits, but these 
limitations should have similar effects on the estimates for each 
option. Additional discussion of how to interpret the results of the 
normative cost-benefit analysis is provided in the preamble to the 
proposed rule (63 FR 30323) at the beginning of the Unit entitled ``c. 
Results.''
    b. Results. The results of the analysis, under each model, to 
determine dust-lead and soil-lead hazards for the proposed rule are 
found in the preamble to the proposed rule (63 FR at 30323-30325). The 
results of the analysis after the reevaluation for the final rule are 
presented in this section. The analysis' computation of net benefits is 
the difference between the total benefits estimate and the total costs 
estimate. Net benefits are an indicator of the societal gains from 
hazard controls. While the rule, in and of itself, does not impose a 
requirement to abate the hazards, for purposes of its risk analysis for 
this rule, EPA has assumed that abatement will be undertaken in all 
homes that exceed the levels when a child is born. This analysis does 
not account for the costs and benefits associated with child-occupied 
facilities because of the lack of available data and resources.
    While the Agency has assumed that the remediation response to the 
presence of a paint, dust or soil lead hazard is abatement (e.g., 
removal or permanent covering for soil) for purposes of its analyses, 
it should not be concluded that the Agency has identified abatement as 
the only viable response to paint, soil or dust hazards. The Agency 
believes that well-designed and well-managed programs of interim 
controls can achieve significant reductions in hazards and, 
particularly for soil hazards, could be less expensive than removal.
    As noted previously in this preamble, in performing its analyses 
for this rule, the Agency could not quantitatively compare interim 
control strategies with abatement strategies because there are only 
limited data available on the effectiveness of interim controls over 
extended periods of time, and those data which are available are not 
suitable for quantitative comparisons with abatements. Nevertheless, 
experience with interim control programs is increasing and certain 
organizations, particularly public health and housing agencies, believe 
they have been able to develop effective programs for interim controls 
which achieve virtually the same degree of risk reduction as do 
abatement programs, but at much reduced cost. EPA believes that public 
and private organizations should evaluate both interim control and 
abatement strategies in determining the most effective course of 
action.
    Therefore, while EPA does not have the authority under this statute 
to mandate any particular remediation action for lead-based paint 
hazards, it recommends strongly that some action be initiated--interim 
controls or abatement--if lead levels exceed the hazard standards. 
Morever, if bare soil-lead levels are below the hazard standard in non-
play areas, the Agency recommends that organizations and individuals at 
least consider some action in bare soil in those areas if there is a 
concern that children under the age of 6 might spend substantial time 
in such areas, or there is concern that the bare soils in such areas 
may contribute to hazardous lead levels in the dwelling, or in the play 
area.
    The IEUBK-based analysis and the Empirical-model-based analysis are 
only used to calculate the benefits of the various options. Costs are 
calculated in the same manner for both models. Total costs increase as 
options become increasingly stringent and are mainly a function of unit 
costs (costs for a single abatement) and the number of homes affected. 
Unit costs for dust are the same whenever a dust lead hazard is 
present. For soil, unit costs vary depending on the part of the yard 
being addressed by the abatement (e.g., dripline, mid-yard, play-area) 
and on whether the removed soil has to be managed as hazardous waste 
under regulations under the Resource Conservation and Recovery Act 
(RCRA). The unit cost is lower for lower soil-lead levels (below 2,000 
ppm) because it is expected that the removed soil would not have to be 
managed as hazardous waste.
    In the analysis for the proposed rule, unit costs for dust 
abatement were $ 391 for single-family homes and $ 262 for multi-family 
units (63 FR 30324). The preamble to the proposed rule (63 FR 30322) 
included the following complete range of unit costs for soil removal 
and other control actions as follows:

   Table 1.--Hazard Evaluation and Control Costs (per activity in 1995
                                dollars)
------------------------------------------------------------------------
                                                          Multi-family
             Activity                 Single Family        (per unit)
------------------------------------------------------------------------
Risk assessment                                   456                235
------------------------------------------------------------------------
Interior paint repair                             437                437
------------------------------------------------------------------------
Interior paint abatement                        6,587              4,687
------------------------------------------------------------------------
Exterior paint repair                             807                182
------------------------------------------------------------------------
Exterior paint abatement                        5,706              2,275
------------------------------------------------------------------------
Dust cleaning                                     391                262
------------------------------------------------------------------------
Soil removal (dripline;                         2,046                399
 nonhazardous waste)
------------------------------------------------------------------------
Soil removal (mid-yard;                         7,878                777
 nonhazardous waste)
------------------------------------------------------------------------
Soil removal (both areas;                       9,008                901
 nonhazardous waste)
------------------------------------------------------------------------

[[Page 1219]]

 
Soil removal (dripline; hazardous               3,443                541
 waste)
------------------------------------------------------------------------
Soil removal (mid-yard; hazardous              16,486              1,351
 waste)
------------------------------------------------------------------------
Soil removal (both areas;                      19,013              1,617
 hazardous waste)
------------------------------------------------------------------------
Soil removal (play area, non-                   1,460                314
 hazardous waste)
------------------------------------------------------------------------
Soil removal (play area, hazardous              2,129                359
 waste)
------------------------------------------------------------------------

    It is important to note that, as printed in the proposal, this 
table contained a typographical error with respect to the cost of 
exterior paint abatement in single-family housing. This error was 
identified and corrected in a Federal Register document published on 
December 18, 1998 (63 FR 70087) (FRL-6048-3).
    Total costs for the various options considered are found in Tables 
4, 5, 6, and 7 of the proposal (63 FR at 30324-30325). Similar tables, 
although slightly revised as is described later in this section, are 
presented as Tables 7-A1 through 7-A4 in Appendix 7 of the Economic 
Analysis of the TSCA section 403 Lead-based Paint Hazard Standards 
Final Rule (December 2000) (Economic Analysis) (Ref. 14). As in the 
proposal, however, these tables do not include estimated costs or 
benefits of paint interventions, or any testing or risk assessment 
costs. Since only a single standard was considered for paint 
interventions, associated costs and benefits are omitted from the 
tables to permit a clearer presentation of the incremental changes in 
costs and benefits that are associated with changes in standards for 
the option considered. The Agency also omits testing and risk 
assessment costs in the tables below for a similar reason. Finally, in 
order to observe the effects of intervention in each medium separately, 
EPA held lead levels in all other media constant at baseline levels, 
which are based on the HUD National Survey data. In tables 7A-3 and 7A-
4 for the estimated costs and benefits for soil-lead hazard standard, 
independent dust and paint interventions are assumed not to occur. Some 
dust interventions that are triggered by soil abatements are 
incorporated in these two tables.
    The units of benefit and the value being assigned to them are 
presented in Table 2 below.

                                 Table 2.--Summary of Benefits Analysis Estimate
----------------------------------------------------------------------------------------------------------------
           Type of Effect                   Description                Estimate                  Source
----------------------------------------------------------------------------------------------------------------
Effect of a Single Point Reduction     Sum of the direct and   $9,360 in 1995 dollars    Product of the estimate
 in IQ                                 indirect effects on                               of the present value of
                                       the percent of                                    average lifetime
                                       earnings lost (2.379%)                            earnings based on U.S.
                                       and express the effect                            Department of Commerce
                                       in terms of the                                   ($366,021 (1992 $)) and
                                       present value of                                  the assumed percentage
                                       average lifetime                                  loss of earnings from a
                                       earnings                                          single point reduction
                                                                                         in IQ of 2.379%
                                                                                         (Salkever 1995)
----------------------------------------------------------------------------------------------------------------
Cost of Additional Education           Sum of the direct       $1,014 in 1995 dollars    Sum of the estimate of
                                       costs ($316) and                                  the direct and
                                       opportunity costs                                 opportunity costs of
                                       ($627) of additional                              additional education
                                       education                                         based on U.S.
                                                                                         Department of Education
                                                                                         (1993) data
----------------------------------------------------------------------------------------------------------------
Total Effect of a Single Point         Subtract the costs of   $8,346 in 1995 dollars    Accounting for the cost
 Reduction in IQ                       additional education                              of additional education
                                       from the effects on                               was based on Salkever
                                       earnings lost                                     (1995)
----------------------------------------------------------------------------------------------------------------
Special Education (IQ less than 70     Cost of special         $53,836 in 1995 dollars   Kakalik et al. (1981)
 points)                               education beginning at                            estimate annual
                                       age 7 and ending at                               incremental regular
                                       age 18                                            classroom costs of
                                                                                         $6,458 in 1995 dollars
                                                                                         for special education.
                                                                                         This estimate is the
                                                                                         discounted value of
                                                                                         such costs for age 7
                                                                                         through 18.
----------------------------------------------------------------------------------------------------------------
Compensatory Education (Blood lead     Cost of compensatory    $15,298 in 1995 dollars   Kakalik et al. (1981)
 greater than 20)                      education beginning at                            estimate annual
                                       age 7 and ending at                               incremental regular
                                       age 9                                             classroom costs of
                                                                                         $6,458 in 1995 dollars
                                                                                         for compensatory
                                                                                         education. This
                                                                                         estimate is the
                                                                                         discounted value of
                                                                                         such costs for age 7
                                                                                         through 9.
----------------------------------------------------------------------------------------------------------------
Medical Intervention (for several      Cost of blood lead       Risk Group\1\ I:$58;     Recommendations and
 blood lead ranges)                    screening and medical    R.G. IIA: $70; R.G.      actual practice based
                                       intervention for         IIA: $227; R.G. IIA:     on information from CDC
                                       children less than six   $417; R.G. IIA: $678;    (1991), AAP (1995), and
                                       years old (by blood      R.G. IIA: $9843; R.G.    medical practitioners.
                                       lead Risk Group)         IIA: $9843               These estimates are the
                                                                                         discounted costs per
                                                                                         newborn associated with
                                                                                         each blood lead Risk
                                                                                         Group.
 
----------------------------------------------------------------------------------------------------------------
\1\(All in $1995)


[[Page 1220]]

    Calculations for the IEUBK-based analysis for a range of dust 
hazard options for floor dust and the soil hazard standard options are 
presented in the economic analysis (Ref 14). Discussion of the 
calculations is found at 63 FR 30323-25. The dust values for 40 
g/ft2 will be discussed later in this preamble. 
Finally, the units of benefit and the value being assigned to them in 
these analyses are presented in Table 2.
    In summary, total benefits increase as options become increasingly 
stringent, ranging from $ 50 billion to $ 88 billion for dust and from 
$ 16 billion to $ 145 billion for soil. As discussed in the Economic 
Analysis, the results presented for soil account for the fact that soil 
interventions (excluding those in play areas only) include dust 
interventions following the removal and replacement of soil, and thus 
incorporate the costs and benefits associated with dust interventions 
in addition to the costs and benefits associated with the soil 
abatement itself. Benefits increase at an increasing rate because, as 
dust and soil-lead levels decline, the number of homes at given 
environmental lead levels increases more quickly. For example, moving 
from a soil standard of 5,000 ppm to 4,500 ppm increases the number of 
homes exceeding the standard from about 600,000 to about 700,000 (an 
increase of about 100,000 housing units), while moving from 1,000 ppm 
to 500 ppm increases the number of homes exceeding the standard from 
about 6 million to 12 million (an increase of about 6 million housing 
units).
    Because total benefits increase at a faster rate than total costs, 
net benefits also increase as options become increasingly stringent, 
ranging from $ 42 billion to $ 69 billion for dust and $ 13 billion to 
$ 103 billion for soil. The increase in net benefits is relatively 
constant as the dust standards become more stringent. For soil, net 
benefits increase slowly from 5,000 ppm to 3,000 ppm and increase more 
quickly from 3,000 ppm to 2,000 ppm and from 1,200 to 500 ppm. Net 
benefits increase because total benefits are increasing at a faster 
rate than total costs.
    It is important to note that the above analyses do not take into 
account lead levels in other media. Controlling for other contributors 
to blood lead presents a different picture of the net benefits that 
result from moving to a more stringent standard.
    Under the Empirical-model for floor dust, total benefits increase 
as options become increasingly stringent, ranging from $ 27 billion to 
$ 36 billion. For sill dust over the range of candidate standards that 
were considered, net benefits are in the maximum range at 250 
g/ft2 and are slightly higher with floor dust 
standards of 50 g/ft2 as compared to 100 
g/ft2. As is the case in the IEUBK model-based 
analysis, the rate at which benefits increase rises as the stringency 
of the options increase, because more homes are affected (and more 
children are protected). The rate at which benefits increase, however, 
is tempered somewhat because the relationship between dust and soil-
lead and blood lead remains relatively constant across the range of 
options considered. The increasing number of children protected by more 
stringent standards is counter balanced by decreasing risk reduction 
predicted for children living in homes with low dust and soil-lead 
levels. That is, there are smaller changes in blood lead because there 
are smaller changes in environmental-lead between baseline dust-lead 
levels and post-intervention levels.
    Of the combinations of dust standard options evaluated in the 
proposal, net benefits were relatively constant for all the 
combinations except the most and least stringent (floor = 50 
g/ft2 with sill = 100 g/ft2 and 
floor = 100 g/ft2 with sill = 1,000 g/
ft2, respectively). For the other options considered, 
benefits and costs increase at approximately the same rate, resulting 
in little change in net benefits. Specifically, the combinations 
resulted in net benefits of around $ 20 billion, which is also the case 
when a floor standard of 40 g/ft2 is considered.
    Net benefits for soil range from $ -7 billion to $ 2 billion, 
approaching maximum levels near 5,000 ppm and 2,000 ppm. Below 2,000 
ppm, net benefits decrease because total benefits increase at a slower 
rate than total costs. The increased number of children protected at 
more stringent standards is offset by a smaller predicted reduction in 
risk at lower environmental levels.
    4. Selection of the standards and other Agency decisions. This 
section of the preamble presents the explanation of EPA's decisions 
regarding the standards for dust and soil lead hazard and paint-lead 
hazard standards.As part of the discussion of the Agency's decisions 
for each media, EPA is also presenting its decisions on related issues 
including sampling location and interpretation. The dust section will 
also include a discussion of the dust clearance standards, and the soil 
section will include EPA's decision regarding management of soils 
removed during abatement.
    The clearance standards for dust, interpretation of composite 
clearance samples, soil management practices, and sampling location 
requirements are not being issued under authority of section 403 of 
TSCA, but under the work practice standards of section 402. Therefore, 
the legal reasoning, policy decisions, and technical analyses explained 
above do not have direct applicability to their promulgation. EPA is 
presenting these issues in this unit for public convenience, in order 
to keep all its decisions regarding each medium in one place in this 
preamble.
    a. Dust--i. Dust-lead hazard standards. EPA has decided to adopt a 
dust-lead hazard standard 40 g/ft2 for floors and 
250 g/ft2 for interior window sills) in the final 
rule. The floor standard is changed somewhat from the proposal but the 
window sill standard remains the same as for the proposal.
    According to the Empirical model-based analysis for the proposal, 
the results of which are summarized in Table 6 of the proposed rule, 
four of six combinations of options for floor and window sill standards 
have net benefits in the maximum range (i.e., $ 21 to $ 22 billion). 
One combination (100 g/ft2 for floors, 1,000 
g/ft2 for sills) provides significantly less risk 
reduction relative to cost; and one combination (50 g/
ft2 for floors, 100 g/ft2 for sills) 
provides little additional benefit but costs increase significantly. 
Incremental benefits are less than one third the incremental costs and 
an additional 11 million homes would fall under the standard. EPA, 
therefore, considers that this lower standard for sills is associated 
with increased costs without commensurate attendant benefits.
    Of the four combinations considered in the proposed rule, the 50/
250 g/ft2 standard was found to be the most 
protective in terms of the amount of risk reduction yielded. The other 
three options, though less costly, also provided less risk reduction. 
The decrease in both costs and benefits as the combination of floor and 
sill options become less stringent were roughly the same (between $5 
billion and $6 billion), resulting in little change in net benefits.
    EPA's decision on the proposed floor standard was further supported 
by the results of the IEUBK model-based normative analysis, summarized 
in Table 4 of the preamble to the proposed rule, which showed that the 
net benefits for the proposed floor standard were greater than those 
for a less stringent standard; net benefits estimated by this analysis 
increased from $ 48 billion for 100 g/ft2 to $ 61 
billion for the proposed 50 g/ft2 standard.
    EPA reiterates that this normative cost-benefit analysis has been 
undertaken for comparative purposes

[[Page 1221]]

only to evaluate the hazard standards on a relative basis. However it 
does not mean to imply that billions of dollars will be spent on lead 
dust cleanup because the responses projected in the cost estimates may 
not necessarily reflect the behavior of residents and building owners 
over 50 years. These costs also reflect some extremely conservative 
assumptions, such assuming that all yards are potentially affected even 
if they actually contain no bare soil. These costs are put into better 
perspective when it is understood that the cost per residence of dust 
cleaning is less than $ 600 per affected residence over a 50-year 
period in 1995 dollars. In making this decision, EPA recognizes that 
the proposed standard could result in dust hazard interventions in 
perhaps as many as 20 million homes. Although this is a very large 
number of homes, the cost of intensive dust cleaning is relatively low 
for individual residences.
    EPA decided to propose the 50 g/ft2 and 250 
g/ft2 standards respectively for floors and sills 
because the Agency preferred to select the most protective of the four 
combinations.
    In the proposal, the Agency did not consider a floor standard 
option less than 50 g/ft2 because, in its risk 
analysis, EPA's best estimate was that the post-intervention dust-lead 
loading would be the lower of the pre-intervention dust-loading or 40 
g/ft2. This was the Agency's best estimate of dust 
levels that would remain after controlling sources of lead and 
thoroughly cleaning the residence. It was based on an analysis of data 
from several abatement studies which is more fully discussed in Chapter 
6 of the Agency's risk analysis (Risk Analysis to Support Standards for 
Lead in Paint, Dust, and Soil, EPA 747-R-97-3006, June 1998) (Ref. 12). 
in the record for the proposed rule. In light of this estimate, EPA 
found it would be impractical to set the standard for floors lower than 
40 g/ft2 because little or no risk reduction would 
likely to be achieved for homes that had dust-lead loadings at or below 
40 g/ft2.
    In the preamble to the proposed rule, EPA stated that, if new data 
were to become available before promulgation of the final rule that 
show that even lower post-intervention dust-lead loadings could be 
achieved, EPA would consider establishing a more stringent dust-lead 
hazard standard. A number of comments were submitted claiming that 
cleanup could be achieved below 40 g/ft2. Of 
particular relevance were comments from HUD stating that, in its 
experience, cleaning to levels below 40 g/ft2 was 
typically achieved as evidenced by its Grantees program. In fact, since 
the proposal of this rule, HUD has promulgated a 40 g/
ft2 standard for floors in its 1012/1013 regulations. Since 
EPA's basis for not considering a standard less than 50 g/
ft2 was based upon its understanding of the effectiveness of 
cleaning and, based upon the data provided by HUD in its comments, it 
is now clear that a 40 g/ft2 standard is 
achievable, the Agency is establishing 40 g/ft2 as 
the dust-lead hazard standard for floors. The Agency believes that this 
is consistent with the approach taken in its proposal namely, that the 
floor-dust hazard standard should be at the lower end of the range 
where risk reduction is possible. Further, when considered in terms of 
its cost-benefit analysis, EPA found that indeed positive net benefits 
resulted for the 40 g/ft2 hazard standard. In fact, 
as compared to the proposed standard of 50 g/ft2 
with a sill dust standard of 250 g/ft2 (see Tables 
2 and 4), net benefits are somewhat higher under the IEUBK model-based 
analysis and approximately the same under the Empirical model-based 
analysis.
    EPA does not believe it is appropriate to set a dust-lead hazard 
below this level for the additional reason that such a level would 
significantly increase the number of homes identified as lead hazards 
and would not likely identify more truly hazardous environments. This 
is based on the fact that these lower levels would identify 
significantly more than the approximately 22 million homes that are 
identified as having dust-lead hazards under the 40 g/
ft2 standard. In view of the fact that there are far less 
children in the population with elevated blood lead levels, EPA has to 
question modeling results that would suggest such lower levels.
    ii. Carpeted floors. In contrast to the proposed standards that 
only applied to uncarpeted floors, EPA has decided to include carpeted 
floors in the dust-lead hazard standard, and the clearance standards. 
EPA's reasoning is explained herein.
    The Agency received substantial comment on the issue of the floor 
dust standard, and its proposed limitation to uncarpeted floors. As 
discussed in the preamble for the proposed rule (63 FR 30336), EPA did 
not include dust standards for carpeted floors because the Agency was 
unaware of adequate data that could be used to establish a statistical 
relationship between dust lead on carpeted floors and children's blood-
lead concentrations. In the absence of such relationship, EPA felt it 
could not estimate the level of risk and risk reduction that would be 
associated with various levels of dust-lead in carpeted floors. 
Furthermore, EPA did not believe it had adequate data on the 
effectiveness of carpet cleaning that would be needed to establish a 
dust clearance level for carpeted floors. EPA did state that it planned 
to analyze expeditiously any newly available data to establish dust 
standards on carpeted floors and to amend the regulations to add 
standards for carpeted floors.
    EPA, however, acknowledged that the lack of standards for carpeted 
floors was a significant limitation of the proposal. Accordingly, the 
Agency requested comment on the impact of not including standards for 
carpeted floors and indicated it would be interested in any information 
or data that would help it establish such standards.
    Almost all comments on this issue disagreed with EPA's decision not 
to set carpet standards, even though many recognized that the lack of 
data on hazardous levels of lead in carpets makes it difficult for EPA 
to establish a dust-lead standard for carpeted floors. However, by 
excluding carpet dust from the dust hazard standard EPA will cause 
excessive amounts of lead to be ignored during dust-lead control 
activities. Many children who live in homes with wall-to-wall carpeting 
will remain unprotected from floor dust-lead hazards. Using data from 
the 1997 American Housing Survey, EPA estimates that approximately 54 
million housing units built prior to 1978 contain some wall-to-wall 
carpeting. Of these units, wall-to-wall carpeting is found in a living 
room in approximately 47 million units and in a bedroom in 
approximately 46 million units (i.e., rooms in which children reside 
and play most frequently.
    A number of comments pointed out the unintended consequences of not 
having a dust-lead standard for carpets. Contractors complained that, 
because abatement requires quality control standards in order to be 
properly executed, many contractors will refuse to work in rooms where 
there is no standard on which they can fall back to show they have done 
their work correctly. This could raise liability issues because there 
would be no standard to determine whether it is safe for a family to 
return to a home after a lead cleanup. Not having a carpet standard 
could create the notion that, if carpet remains, there is no hazard on 
the floors and the carpeted floor can be ignored. Further, a property 
owner could avoid having to meet clearance levels for lead dust on 
floors simply by laying carpet.
    In view of the substantial loophole that could be created in the 
absence of a standard for carpeted floors, many comments recommended 
that EPA

[[Page 1222]]

should maintain one standard for all floors until research can be done 
that supports a different standard for carpeted floors. The Agency is 
persuaded by the comments that the absence of any standard at this time 
would potentially lead to significant exposures for children, and that 
some standard is necessary at this time.
    In response to these concerns, the Agency has reviewed the 
information submitted by commenters and other information in its 
rulemaking record, including the data base supporting the floor dust-
lead standard. EPA agrees with the comments that the huge potential 
loophole created by not having a carpet standard could affect large 
numbers of children and would be inappropriate. It is known that 
carpeting can be a dust reservoir with significant amounts of lead. In 
addition, the Agency believes that its rulemaking record supports 
setting a carpet standard that is the same as the standard for bare 
floors.
    Specifically, EPA finds that the following information supports 
setting a carpet standard that is the same as the bare floor standard. 
First, EPA agrees with the comments, particularly with respect to the 
fact that substantial amounts of children would remain unprotected by 
not having a carpet standard and that the consequences are harmful to 
public health.
    With respect to data, EPA has examined its analysis that supported 
the dust-lead hazard standard. That analysis not only supports the 
standard for bare floors, but also the same one for carpeted floors. 
This is because the data that was used as input to its models did not 
distinguish between bare floors and carpeted floors. That is, the 
Agency's risk analysis, its analysis of risk reduction that could be 
achieved through cleanup, and the cost-benefit analysis for floors 
evaluated both carpeted and uncarpeted floors. EPA cannot definitively 
state that, in fact, all factors will be the same for both carpeted and 
uncarpeted floors, but sufficient evidence exists to establish a carpet 
standard. This is based upon considering the potential loophole that 
could exist in the absence of a carpet standard and the fact that some 
correlation exists between carpeted and non-carpeted floors.
    The correlation between carpeted and non-carpeted floors is 
supported by data in the rulemaking record, as well as data submitted 
by HUD in comment. These data include the Rochester (NY) Lead-in-Dust 
study and the pre-intervention, evaluation phase of the HUD Lead-Based 
Paint Hazard Control Grant (``HUD Grantees'') Program (data collected 
through September 1997), both of which appear in the record for this 
rulemaking and are described in the Risk Analysis for the proposed 
rule. The Rochester Study shows a significant correlation between dust 
lead in carpets and children's blood lead. Further, the study showed 
that the percentage of children with blood-lead levels above 10 
g/dL were nearly the same with carpeted and uncarpeted floors 
(19.8 and 18%, respectively). This correlation supports setting at 
least the same standard for carpeted and non-carpeted floors. In 
addition, data from the HUD Grantees indicate that grantees were able 
to reduce dust-lead loadings in carpets, although the data are limited 
by the fact that grantees were working with higher clearance standards 
(80 - 200 g/ft2 instead of 40 g/
ft2). Nevertheless, the fact is that the identical cleaning 
techniques were used, regardless of the clearance standard. Finally, 
there are no scientific data available demonstrating that carpeted 
floors pose different risks to children than any other type of 
flooring.
    Accordingly, EPA's dust-lead, hazard and clearance standards apply 
to all floors. This will ensure that children are protected from dust 
hazards on all types of floors until future rulemakings can more 
definitively evaluate the need for different carpet standards.
    iii. Sampling requirements related to assessing dust-lead hazards. 
EPA is adopting the sampling location (63 FR 30342) and interpretation 
(63 FR 30339--30340) requirements based on the rationale in the 
proposed rule. This regulation amends the work practice standards for 
risk assessments at 40 CFR 745.227 to require risk assessors, for 
purposes of hazard assessment, to take samples from floors and interior 
window sills. This regulation also amends the work practice standards 
to require risk assessors to make the dust-lead hazard determination by 
comparing the average of wipe sample results, weighted by the number of 
subsamples in each sample to the hazard standard for the appropriate 
surface (i.e., floors, sills) For multifamily properties, the risk 
assessor will determine that unsampled units of particular type of 
surface (i.e., floors, sills) constitute a hazard if at least one 
sampled unit is determined to be a hazard. Unsampled common areas are 
presumed to contain a lead-based hazard if at least one sampled common 
area of a similar type contains a lead-based hazard.
    iv. Dust clearance standards. EPA is explaining in this section its 
reasoning for establishing clearance standards for cleanup of lead dust 
hazards and work practice standards for interpreting composite samples 
for clearance purposes.
    Clearance standards are used by certified individuals to evaluate 
the adequacy of the cleanup performed in residences at the completion 
of abatement. According to the practices prescribed at 40 CFR 745.227, 
a certified risk assessor or inspector must collect dust samples and 
have them analyzed by an EPA-recognized laboratory following the 
cleanup to assure that the cleanup reduces dust-lead levels to 
prescribed ``clearance'' levels. If the clearance levels are not met, 
the cleanup and testing process must be repeated until the clearance 
standards are met. Although clearance testing is not required following 
implementation of interim controls (e.g., paint repair), the Agency 
strongly recommends such testing to ensure that the residence has been 
adequately cleaned.
    With respect to composite sampling, the work practice standards at 
40 CFR 745.227 do not differentiate between single surface samples and 
composite samples for determining compliance with clearance standards. 
EPA recognizes that because composite samples provide an average level 
of lead, low values on some surfaces may mask the presence of lead 
levels that exceed clearance standards on other surfaces. EPA continues 
to believe, however, that composite sampling is a useful tool for risk 
assessment and clearance and wishes to preserve its use under the 
regulations, the Agency proposed a method to remedy this problem and 
discussed various related issues in the preamble to the proposal (63 FR 
30342).
    A. Clearance standards for floors and sills. The final regulation 
contains clearance standards for floors and interior window sills of 40 
g/ft2 and 250 g/ft2 
respectively. This change from 50 g/ft2 to 40 
g/ft2 accounts for the Agency's decisions to 
include standards for carpets as well as bare floors and to lower the 
dust lead hazard standard, as discussed earlier in this preamble.
    The preamble to the proposed rule (63 FR 30341) discusses the 
statutory requirements applicable to clearance standards in TSCA 
section 402. On the same page, EPA provides the reasoning supporting 
the Agency's decision to use the same level to define clearance 
standards for dust as is used to define dust hazard standards for 
floors and interior window sills. This section of the proposal also 
explains how the Agency considered available field data documenting 
experience with the HUD cleaning protocol and decided to propose 
clearance standards that are the

[[Page 1223]]

same as the dust-lead hazard standard. These portions of the preamble 
to the proposed rule are adopted as support for the final clearance 
standards in this rule.
    B. Clearance standard for window troughs. For window troughs, where 
EPA is not issuing a hazard standard, the Agency has decided to issue a 
clearance standard of 400 g/ft2. This is a change 
from the proposal, where EPA proposed to adopt the then-existing 
clearance standard of 800 g/ft2 from HUD's 
guidance.
    The decision is based on EPA's consideration of public comments, 
and other information available to the Agency, which suggested that 400 
g/ft2 is an appropriate clearance standard for 
window troughs. In the proposal, EPA used the current HUD clearance 
level for troughs (800 g/ft2). As a result of the 
public comments, EPA revisited the data from the Agency's clearance 
evaluation, which clearly demonstrates that the 400 g/
ft2 level is achievable without a major increase in burden. 
In six of the eight studies the pass rate for 400 g/
ft2 after one trough clearance test ranged from 80.3% to 
93.6%. The corresponding range for 800 g/ft2 is 
88.4% to 96.6%. Two of the studies had significantly lower pass rates 
at 400 g/ft2 (30.6% and 53%). These studies, 
however, also had lower significantly lower pass rates at 800 
g/ft2 (43.5% and 62.9%).
    C. Sampling location and interpretation of composite dust samples. 
EPA is adopting the amendments to the sampling location requirements in 
the abatement work practice standards at 40 CFR 745.227 discussed in 
the proposed rule. This amendment changes sampling locations from 
uncarpeted floors and windows to all floors, interior window sills, and 
window troughs. This change is needed because the EPA is establishing 
clearance standards for all floors, including carpeted floors, and 
specific window surfaces.
    To remedy the problem that composite samples may mask the presence 
of lead levels that exceed clearance standards, EPA proposed to require 
a risk assessor to divide the clearance standard by the number of 
subsamples in the composite. For example, if a composite floor sample 
of 50 g/ft2 contained four subsamples, the risk 
assessor would compare the loading from the composite sample to 12.5 
g/ft2 (i.e., the proposed floor clearance standard 
divided by four). Using this approach, it was mathematically impossible 
for the composite to pass when any single subsample exceeds the 50 
g/ft2 proposed clearance standard for floors. It 
would have, however, introduced the possibility of a composite sample 
failing clearance even if all the subsamples would have passed 
clearance individually (i.e., false failure), leading to additional 
clean up activities that would not have been necessary. At the time of 
the proposal EPA decided that this method would provide the best 
balance of safety, effectiveness, and reliability (63 FR 30342). EPA 
specifically asked for comment on this approach.
    Commenters objected to this approach for several reasons. The most 
persuasive is that this approach would create a significant 
disincentive for risk assessors to use composite testing. HUD 
specifically referred to a study by Scott Clark and Paul Succop which 
showed that a better approach would be to compare the composite sample 
to the clearance levels divided by half the number of subsamples. 
Clark's and Succop's data shows that this approach produces an 
equivalent rate of passing clearance as single surface sampling.
    Upon review of this study, EPA has decided to adopt this approach 
and is amending the work practice standards at 40 CFR 745.227 
accordingly. Although the Agency prefers single surface sampling, it 
does not want to create a disincentive to conduct composite testing 
since in some circumstances it can save time and money. By selecting an 
approach that judges composite samples and single surface samples in an 
equivalent manner, EPA is removing the disincentive that the proposed 
approach would have created.
    b. Soil. This section of the preamble presents EPA's decisions 
regarding the soil lead hazard standards. It addresses the soil-lead 
hazard standards for children's play areas and the remainder of the 
yard, and management controls for soil removed during an abatement:
    i. Soil hazard standard. For the final regulation, EPA has selected 
400 ppm in bare soil as the hazard standard for children's play areas 
and is an average of 1,200 ppm as the soil-lead hazard standard for the 
remainder of the yard. EPA's decision is a change from the proposed 
standard of 2,000 ppm as a yard-wide standard.
    EPA's reasoning in support of the 2,000 ppm yard-wide standard is 
explained in the preamble to the proposed rule (63 FR at 30328-30330). 
To determine the final soil hazard, EPA uses the same underlying legal 
and policy rationale in the proposal. The Agency, however, now believes 
it is more protective of children and still consistent with the legal 
and policy bases to establish a lower level that focuses on children's 
play areas, as well as a lower level for the remainder of the yard.
    EPA did not identify new information that has a significant bearing 
on the decisions needed for this rule and indeed is using the same 
references cited in support of the proposed soil hazard standard, to 
support this final decision. Comments on the proposal that questioned 
whether the proposed standard would be adequately protective of 
children, however, did cause the Agency to rethink its approach in 
reviewing the results of the analysis and the assessment of the 
available options. During this reevaluation of the options, EPA 
considered all options from 400 ppm to 5,000 ppm and selected the most 
protective option that could be supported by the analysis. This section 
presents EPA's rationale for selecting 400 ppm for children's play 
areas and 1,200 ppm for the remainder of the yard as the hazard 
standards and for not choosing the other options. Detailed responses to 
comments on all the options are found in the RTC document.
    In order for the public to understand EPA's reasoning for the final 
soil hazard levels, the Agency believes it is necessary to review its 
reasons for not selecting the lowest and highest levels under 
consideration (400 and 5,000 ppm yard-wide averages, respectively), the 
reasons for proposing 2, 000 ppm instead of 1,200 ppm as yard-wide 
standards, and the reasons for choosing 1,200 ppm in the nonplay areas 
as the final soil hazard standard. This discussion will also show where 
the final analysis is consistent with the proposal and where divergence 
from the proposed reasoning is appropriate.
    The proposal explained that, to arrive at a soil-lead hazard level, 
EPA sought to determine, with consideration of the uncertainty of the 
scientific evidence regarding environmental lead levels at which health 
effects would result, those conditions for which the Agency had 
sufficient confidence in the likelihood of harm that abatement seemed 
warranted to achieve the associated level of risk reduction. This is 
the method EPA has used to arrive at standards for both dust and soil. 
The Agency has determined that this is an appropriate way under the 
statute to determine whether a dust or soil lead ``would result'' in 
adverse human health effects. EPA has followed a similar approach in 
examining the final decision, although it has reached a different 
conclusion with respect to choosing the levels.
    In the proposal, EPA rejected options for both higher and lower 
soil lead levels for a number of reasons. While, at

[[Page 1224]]

the time the Agency was only considering a yard-wide standard, those 
reasons are still relevant to today's final decision. However, the 
Agency's reasons for not selecting the extremes of either 400 ppm and 
5,000 ppm, as a yard-wide standard, were of a more serious nature than 
its reasons for not choosing of 1,200 ppm. For this final rule, EPA 
reaffirms the reasoning in the proposal for not selecting the 400 ppm 
and 5,000 ppm standards, as yard-wide standards, with additional 
explanations noted below.
    With respect to not choosing the 400 ppm level as a yard-wide 
standard, EPA acknowledged in the preamble to the proposed rule that 
the results of the IEUBK model-based analysis at relatively low soil-
lead concentrations are dependent upon modeling assumptions that are 
sensitive to local conditions, for example the transport of outdoor 
soil into a residence. Although the IEUBK model predicts substantial 
benefits resulting from abatement at higher soil-lead levels, the 
absence of site-specific information at lower soil-lead levels 
increases the uncertainty in the public health protection that should 
be expected. Consequently, EPA does not believe that, as a uniform 
national soil-lead standard, a value as low as 400 ppm yard-wide 
represents a reasonable public policy choice. Also, much of the benefit 
that the IEUBK model-based cost-benefit analysis predicts is very 
sensitive to certain of the data and assumptions used therein. For 
example, a significant proportion of these benefits are associated with 
changes in dust concentration, which are affected by both the HUD 
National Survey data and EPA's assumptions about post-intervention dust 
concentrations.
    Second, EPA's Empirical-based model cost-benefit analysis has an 
even greater difference with the IEUBK cost-benefit results with 
respect to the risk reduction achievable at soil-lead concentrations as 
low as 400 ppm yard wide. Had the Empirical-based analysis yielded 
results more similar to the results of the IEUBK model-based approach, 
EPA would have greater confidence that significant risk reduction is 
achievable at soil-lead concentrations between 400 ppm and 1,200 ppm as 
yard-wide standards for most properties.
    In addition, EPA considered that, at lower levels, interim controls 
would be of greater help in reducing risks than at higher levels. While 
EPA lacks published studies to estimate the effectiveness of these 
controls, it seems reasonable that interim controls can interfere with 
exposure pathways and reduce risk. Flexibility to use these measures 
may aid in taking cost-effective measures where appropriate. EPA, 
however, was not able at the time of the proposal, and still is not 
able, to quantify the benefits of interim controls.
    The Agency notes that HUD, provided data on interior dust lead 
measurements at homes where soil interim controls had been instituted. 
These data included average costs of some interim control strategies 
and dust measurements approximately 2 years after the controls were 
implemented. While these data were not used in the risk analyses that 
support this rule, they were examined in sensitivity analyses that are 
contained in the Economic Analysis for today's rule (Ref. 14).
    An additional reason that supports not using 400 ppm as the yard-
wide soil-lead hazard standard is provided by a number of commenters 
arguing that 400 ppm should be the hazard standard, but that abatement 
should not occur until 5,000 and interim controls are more appropriate 
at 400 ppm. These comments come from a number of advocacy groups and 
State and local governments who are experienced in dealing with 
abatement issues. EPA disagrees with these comments, for reasons 
discussed in more detail later in this preamble, because the Agency has 
decided to base the hazard standards on the lowest levels at which its 
technical analysis shows that across-the-board abatement on a national 
level could be justified. Nevertheless, these comments by persons 
experienced in dealing with control of lead problems, in effect, 
provide additional support for the Agency's determination that 400 ppm 
should not be a yard-wide hazard under EPA's methodology for choosing 
the hazard standards (i.e., that 400 ppm should not be an across-the-
board abatement level).
    EPA also fears that by calling 400 ppm yard-wide a hazard, property 
owners and other decision makers would undertake abatements as the 
automatic response. A value of 400 ppm is below the level at which EPA 
believes that across-the-board yard-wide abatement and its associated 
expenditure of resources are justified and at that level could divert 
resources from potentially riskier sources of lead exposure--namely 
deteriorated lead-based paint and dust-lead hazards.
    EPA also was concerned that more stringent standards would not meet 
the priority-setting goals the Agency believes are appropriate for the 
Title X program. Of particular concern was the fact that the Agency 
estimates that over 12 million homes would exceed a 400 ppm yard-wide 
standard. Scarce resources potentially would have to be allocated 
across more communities and would be diverted away from interventions 
needed to respond to both deteriorated interior and exterior lead-based 
paint.
    With respect to the not choosing a level of 5,000 ppm as the hazard 
standard, EPA found that while costs may be lower at that level, the 
IEUBK model-based approach shows that net benefits also decrease by $ 
32 billion when increasing the standard from 2,000 ppm to 5,000 ppm. 
While the empirical model-based approach shows that net benefits are 
about the same for both options, the benefits decline by $9 billion 
when the standard increases from 2,000 ppm to 5,000 ppm. Thus, the 
absolute benefits at 2,000 ppm are substantially higher.
    As discussed in the preamble to the proposed rule, however, the 
difference between 1,200 ppm and 2,000 ppm as the yard-wide standard 
was a closer call. While 2,000 ppm was justified by both the IEUBK and 
the Empirical model based analysis, there still was concern for 
substantial risk at 1,200 ppm. At 1,200 ppm in soil, the IEUBK model 
estimates a mean blood lead level in the range of 8 to 11 g/
dL. This range of mean blood-lead concentrations corresponds to a range 
of approximately 30 to 60% exceeding 10 g/dL and 2 to 10% 
exceeding 20 g/dL. In addition, there is a much smaller 
difference in homes affected when comparing the 2,000 ppm and 1,200 ppm 
standards as opposed to comparing 2,000 ppm with 400 ppm. At 1,200 ppm, 
4.7 million homes would exceed the standard.
    EPA decided to propose 2,000 ppm for several reasons. Readers are 
referred to the preamble to the proposed rule for details. First, the 
results of the empirical model-based normative analysis showed that net 
benefits are positive and near the maximum level at 2,000 ppm. The 
IEUBK normative model-based analysis showed positive and significantly 
higher net benefits at concentrations up to 2,000 ppm than for soil-
lead concentrations above 2,000 ppm. Because both analyses showed 
positive net benefits at 2,000 ppm, EPA was confident that this level 
represented a reasonable public health policy choice.
    The second reason EPA gave in the proposal for choosing 2,000 ppm 
was that, outside of its use in the economics model, the IEUBK model 
predicts significant risk to children at that soil-lead concentration 
under virtually all exposure scenarios. At 2,000 ppm in soil, the model 
estimates a mean blood lead level in the range of 11-16 g/dL, 
depending upon the assumed concentration of lead in house dust (100-
1,400 ppm in this case). This range corresponds to approximately 55 to 
80%

[[Page 1225]]

equal to or exceeding 10 g/dL and 9 to 30% exceeding 20 
g/dL. Although this is greater than empirical data, the Agency 
believes that this application of the IEUBK model supports the 
conclusion that a level of 2,000 ppm would result in adverse effects.
    The third reason given in the proposed preamble to support the 
2,000 ppm soil hazard level was that data from a number of 
epidemiological studies show that between 40 and 50% of the children 
living in certain communities with soil-lead concentrations at the 
2,000 ppm level have blood-lead concentrations equal to or exceeding 10 
g/dL and that 10% of children have blood-lead concentrations 
equal to or exceeding 20 g/dL.
    However, there are several limitations associated with the above 
analysis. First, the results are based on a single media analysis, 
i.e., the estimated percent of children with elevated blood-lead 
concentration considered only the level of lead in soil and did not 
control for the contribution of lead from other media to blood lead 
level. Second, studies were conducted over a period of time between 
1979 and 1996 and the study duration varied from a couple of months to 
several years. Third, the studies were conducted in different 
geographical regions. Some of the studies were performed in the 
vicinity of smelters (active or inactive) or in ore processing 
communities. Fourth, the target populations were different among the 
studies (i.e., targeting children with 5-20 g/dL blood-lead 
concentration, high-risks neighborhoods, homes with a lead-poisoned 
child, children in a certain age group).
    In the proposal, EPA decided not to use as its preferred option the 
more stringent soil-lead hazard standard. While EPA interpreted the 
balancing of costs and benefits under IEUBK model-based analysis as 
showing costs would be at least commensurate with risks at 1,200 ppm, 
the results of the empirical model-based approach suggested they might 
not be. In addition, some epidemiological data indicated substantial 
risks even at 1,200 ppm. Because the Agency's analysis, thus, showed 
that at the national level costs may not be commensurate with risk 
reduction at the lower level. EPA decided to propose the higher level 
because it ``was mindful of the impacts that the costs of soil 
abatement could have on individual properties and communities.'' (63 FR 
30330) This was notwithstanding the fact that some epidemiological data 
indicated substantial risks even at 1,200 ppm. Ultimately, therefore, 
the consideration of costs and their impacts was the primary reason why 
EPA proposed 2,000 ppm as opposed to 1,200 ppm.
    At the time of the proposal, the Agency also expected that measures 
undertaken in response to the proposed soil-lead level of concern in 
guidance and dust hazard standards would help protect children exposed 
to soil-lead concentrations at all levels below 2,000 ppm.
    EPA received numerous comments on the proposed standard which 
provided a broad range of perspectives but no clear consensus. Comments 
that questioned whether the proposed standard would be adequately 
protective of children did cause the Agency to rethink its approach in 
reviewing the results of the analysis and the assessment of the 
available options. While EPA did not choose the options at the 
extremes, the Agency's principal dilemma as it considered comments on 
the proposed rule was to consider whether it should retain 2,000 ppm as 
the soil hazard standard or move to 1,200 ppm. EPA also received many 
comments that it should establish a separate play area standard. The 
Agency has resolved these problems, for the final rule, by establishing 
a 400 ppm standard for children's play areas and an average of 1,200 
ppm standard in the remainder of the yard. The following discussion 
presents EPA's rationale for selecting 400 ppm as a children's play 
area standard and for selecting 1,200 ppm as the hazard standard for 
the remainder of the yard and for not choosing 2,000 ppm.
    A. Play area hazard standard. As explained above, EPA's proposal 
was to establish a single hazard standard that would be used for the 
entire yard. Many comments were received on this approach that were 
highly critical of the Agency for not treating the play area separately 
from the rest of the yard. These commenters reasoned that the play area 
is where children receive a significant proportion of their exposure to 
soil and that, therefore, the Agency should establish a more stringent 
standard for play areas. The Agency is persuaded by these comments and 
has reconsidered its treatment of play areas.
    The Agency's initial reluctance to considering a separate standard 
for play areas was the concern that play areas could not be readily 
distinguished from the remainder of the yard. Among the comments that 
urged the Agency to consider a separate standard were comments from 
local public health agencies stating that risk assessors can readily 
identify play areas, thus making EPA's primary objection to this 
approach (feasibility), moot. Given that, in responding to these 
comments, the Agency, consistent with the interpretation that was 
stated in its proposal, focused upon the condition and location of lead 
in soil that would result in adverse health effects. As opposed to 
assuming equivalent exposure from all areas of the yard, the Agency 
agrees that it is also appropriate to consider that the extent of 
exposure and the potential for risk reduction is much greater in play 
areas. Consequently, because of the high levels of exposure that almost 
by definition correspond to a ``play area,'' the Agency believes it 
appropriate to consider 400 ppm to be a soil-lead hazard when that soil 
is situated in a child's play area.
    The Agency's next step was to attempt to estimate how a separate 
play area standard would affect the risk reduction that would result 
from various other standards (e.g., 1,200 ppm and 2,000 ppm) in the 
rest of the yard. The Agency tried various options to partition 
children's expected exposures from soil in play areas and soil in the 
rest of the yard. This posed numerous problems, which will be described 
later in this section, but it did indicate that an approach which 
focuses primarily upon a child's play area would likely be preferable 
in terms of protectiveness, risk reduction, and cost-effectiveness.
    In its analysis, the Agency considered two options for the degree 
of exposure: (1) That 50% of exposure is from play area soil and 50% is 
from soil in the rest of the yard; and (2) that 2/3 of the exposure is 
from play area soil and 1/3 is from soil in the rest of the yard. The 
Agency coupled these exposure assumptions with two assumptions 
regarding the relative size of the play area: (1) That 10% of the yard 
is the play area (``small yard''); and (2) that 50% of the yard is the 
play area. These analyses indicated that, in situations where the play 
area is small, an approach which establishes a more stringent standard 
for the play area can be more optimal in terms of cost effectiveness 
(and obviously more protective) than a less stringent standard applied 
to the yard as a whole.
    For example, in the ``small yard'' case where exposure is assumed 
to be 50% from the play area and 50% from the rest of the yard, the 
consequences of moving from a yard-wide average standard of 1,200 ppm 
to standards of 400 ppm for the play area and 1,200 ppm for the rest of 
the yard are as follows: total costs are increased slightly from $68.9 
to $70.4 million while total benefits increase from $159.3 to $174.2 
million, using the IEUBK model. This results in an increase in net 
benefits from $90.4 to $103.8 million. Using the Empirical model, this 
analysis produces

[[Page 1226]]

the same trend, although the results are less dramatic, indicating an 
increase in net benefits of $1.4 million. The results of these analyses 
confirm that the establishment of a separate, more stringent standard 
for play areas can constitute a more targeted, more protective, and 
more cost-effective approach, especially where play areas are not 
large.
    As noted above, while the Agency believes that these analyses are 
indicative of the benefits of separate standards for the play area and 
the rest of the yard, there are a number of technical problems 
associated with such analyses. First, the amount of direct exposure to 
soil that children experience in their play areas versus the rest of 
their yard has not been studied to any significant degree. A further 
complication is the fact that there is little or no data on the actual, 
or even relative, sizes of play areas. Additionally, the soil in the 
rest of the yard can re-contaminate play areas where interventions have 
previously occurred. For these reasons, the Agency was unable to 
develop definitive estimates of risk and available risk reduction for 
separate standards for the play area and the rest of a yard.
    The Agency believes that these analyses serve to demonstrate that, 
to the extent to which children's exposure to soil is greater in a play 
area and the size of the play area is smaller compared to the rest of a 
yard, greater risk reduction (and at a lower cost) would be achieved 
with a separate standard for a play area and a different standard for 
the rest of the yard (as opposed to applying a single standard to the 
entire yard). Consequently, the Agency believes that establishment of a 
more stringent standard for the play area will be more cost-effective 
as well as more protective of children.
    B. Remainder of yard hazard standard. EPA believes that, based on 
the technical analysis, either an average of 1,200 ppm or 2,000 ppm 
level could be chosen under the applicable statutory criteria that the 
conditions of lead-contaminated soil would result in adverse health 
effects. EPA chose 1,200 ppm for the final rule because it is the most 
protective level at which EPA has confidence that the risks warrant 
abatement.
    EPA's most basic reason for choosing 1,200 ppm over 2,000 ppm is 
that the IEUBK model estimates that an individual child would have a 30 
to 60% risk of having a blood lead level equaling or exceeding 10 
g/dL, and that some epidemiological data indicated substantial 
risk at 1,200 ppm. EPA recognizes that this is an overestimate because 
it was derived without consideration of a play area. EPA recognizes 
that with separate consideration of a play area, the overall individual 
risks will likely be lower. It is also important to note that the 
epidemiological data referred to as indicating substantial risk at 
1,200 ppm is the same data, and subject to these same caveats as are 
discussed in the soil hazard standard section. Also, the Agency notes 
that abatement at levels above 1,200 ppm have been shown to result in 
declines in childrens' blood-lead levels. For example, in evaluating 
the Boston portion of the Urban Soil Lead Abatement Demonstration 
Project (Ref. 17), the Agency found that:

    ... the abatement of soil in the Boston study resulted in a 
measurable, statistically significant decline in blood lead 
concentrations in children, and this decline continued for at least 
two years. It appears that the following conditions were present, 
and perhaps necessary for this effect: (a) a notably elevated 
starting soil lead concentration (e.g., in excess of 1,000 to 2,000 
ug/g (ppm)); (a marked reduction of more than 1,100 ug/g in soil 
lead consequent to soil abatement accompanied by (c) a parallel 
marked and persisting decrease in house dust lead.

    None of these factors, alone, would lead to choosing 1,200 ppm. 
When combined with the range of uncertainty in either of the cost-
benefit analyses, however, the support of the IEUBK cost-benefit 
analysis, and the nearness to the empirical-based model analysis that 
would support the 2,000 ppm standard, these factors tip the balance 
towards the lower of the two levels.
    EPA finds national data are not inconsistent with the IEUBK 
individual risk analysis. EPA estimates, based on the HUD National 
Survey Data that 4.7 million homes have soil-lead levels that exceed 
1,200 ppm. Of these 4.7 million homes, an estimated 830,000 would be 
occupied by children under the age of 6 (based on the estimate from the 
1993 American Housing Survey that 17.6% of homes are occupied by 
children under the age of 6). According to the IEUBK prediction, 
elevated blood lead levels due to lead in soil exceeding 1,200 ppm 
could be found in 30% of these children (based on the lower end of the 
IEUBK predicted individual range, without consideration of the play 
area standard), about 250,000 children. Since over 900,000 children, 
nationwide, have elevated blood-lead levels EPA finds it credible that 
soil-lead could be a factor in these childrens's blood levels.
    EPA decided not to select its proposed choice for the soil-lead 
hazard standard, 2,000 ppm, for several reasons. First, the Agency's 
analysis shows that there is substantial and credible risk at soil-lead 
concentrations below this level. Second, significant risk reduction is 
possible below this level.
    In making its decision, EPA was mindful of the concerns associated 
with lowering the soil standard from 2,000 ppm to 1,200 ppm. By picking 
a more stringent hazard standard, EPA increases the estimated number of 
homes that are potentially affected by 2.2 million. Abatement costs may 
also divert resources from efforts to control exposure from 
deteriorated paint and dust which are possibly more significant sources 
of exposure.
    Nevertheless, experience with interim control programs is 
increasing and certain organizations, particularly public health and 
housing agencies, believe they have been able to develop effective 
programs for interim controls which achieve virtually the same degree 
of risk reduction as do abatement programs, but at much reduced cost. 
EPA received comments on this issue during the public comment process. 
EPA wishes to encourage the continuing evaluation of such efforts 
because resources to deal with hazardous lead levels may be very 
limited, and strategies which achieve comparable risk reduction, but at 
much reduced cost, have the potential to protect more children by 
allocating the limited resources more effectively. Recognizing that a 
site-specific evaluation may identify unacceptable risks to children, 
it may be necessary to take a more rigorous approach to mitigate those 
risks as the lead-levels increase. EPA believes that public and private 
organizations should evaluate both interim control and abatement 
strategies in determining the most effective course of action when 
dealing with dust and soil hazards.
    C. De minimis area of bare soil. In the proposal, EPA considered 
whether the rule should include a minimum (i.e., de minimis) area of 
bare soil as part of the lead hazard criteria. 63 FR 30337-8. The 
Agency rejected inclusion of a de minimis area of bare soil for the 
hazard standard, but did request comment on two other options. Under 
one of the other options, EPA would adopt the de minimis area from the 
HUD Guidelines, which instruct risk assessors to sample yards that have 
at least 9 square feet of bare soil, with no de minimis in the play 
area. HUD's final rule under section 1012/1013 of Title X incorporates 
this into its interim soil lead hazard standard. That is, a hazard does 
not exist where there are less than 9 square feet of bare soil outside 
the play area.
    EPA still rejects including a de minimis area of bare soil for the 
hazard standard for the same reasons stated in

[[Page 1227]]

the proposal. EPA's reasoning is that the disadvantages of establishing 
a de minimis outweighed the advantages. EPA has no analysis or data 
that relate the amount of bare soil to risk. EPA also believes that a 
de minimis area of bare soil provides little benefit. First, 
information provided by an experienced risk assessor suggests that very 
few properties would be excluded using the de minimis in the HUD 
Guidelines. Second, the incremental cost of including soil testing in a 
risk assessment is small. Moreover, the de minimis used in the HUD 
Guidelines does not account for differences in yard size. Outside of 
the play area, 9 square feet may be insignificant in a suburban yard 
but large for the back yard of an urban row house.
    However, EPA highly recommends using the HUD Guidelines for risk 
assessment (Ref. 5). This would avoid declaring very small amounts of 
soil to be a hazard in the non-play areas of the yard. This would also 
help target resources by eliminating the need to evaluate soil or 
respond to contamination or hazards for properties where there is only 
a small amount of bare soil.
    D. Management of removed soil. EPA is adopting the proposed 
requirement for management of soil removed during an abatement (63 FR 
30343). This requirement prohibits the use of soil removed during 
abatement as topsoil in another residential property or child-occupied 
facility. In response to comment, EPA would like to clarify that 
applicable Federal and State requirements apply to removed soil 
including testing pursuant to RCRA under the Toxicity Characteristic 
Leaching Procedure and disposal of soil identified as hazardous waste 
(Ref. ?). The Agency also advises that care should always be taken to 
ensure that removed soil does not pose immediate or future risks to 
human health. For example, it should not be disposed of at an 
undeveloped site that may later be developed as residential or 
converted into a playground.
    c. Paint. This section of the preamble presents EPA's decisions 
regarding the standards for hazardous lead-based paint. It addresses 
the deteriorated paint, paint on friction and impact surfaces, and 
surfaces accessible for chewing or mouthing by young children. This 
section also discusses relevant amendments to sampling requirements.
    i. Deteriorated paint. The final regulation adopts the Agency's 
underlying rationale in the preamble to the proposed rule for setting 
the hazard standard for deteriorated paint. Specifically, EPA reaffirms 
its argument in the preamble to the proposed rule (63 FR at 30330-
30331) that the available evidence demonstrates a relationship between 
deteriorated lead-based paint and blood-lead. Due to the continuing 
lack of data, however, EPA is still unable to definitively select an 
area threshold below which the lead-based paint would not be a hazard. 
Further, EPA has received substantial public comments that even very 
tiny amounts of deteriorated paint can cause harm and should be 
addressed. As a result, the Agency has reevaluated its rulemaking 
record and no longer believes it is appropriate to have a threshold 
level of deteriorated lead-based paint below which a paint-lead hazard 
does not exist.
    Accordingly, EPA has decided to identify as the paint-lead hazard 
any deteriorated lead-based paint, except in the case of friction 
surfaces. For friction surfaces, as noted below, a paint-lead hazard 
may exist if the surface is subject to abrasion and dust lead levels on 
the nearest horizontal surface underneath the friction surface are 
equal to or greater than the dust hazard levels.
    Furthermore, EPA has decided that it was not appropriate to refer 
to any area threshold for deteriorated lead-based paint as a de minimis 
threshold. Using this terminology gives the public the perception that 
the Agency believes risks at lower levels of deterioration are 
inconsequential and that no action should be taken.
    While establishing this paint-lead hazard standard would alert the 
public to the fact that all deteriorated paint needs to be addressed, 
EPA acknowledges that paint stabilization or interim controls 
(activities less than abatement) would often be appropriate to address 
paint, particularly at lower levels of deterioration or where the 
deterioration is minor, such as less than: Two square feet of 
deteriorated lead-based paint per room; 20 square feet of deteriorated 
exterior lead-based paint; or 10% or less of deteriorated paint on the 
total surface area of an interior or exterior type of component with 
small surface area. EPA, further, emphasizes that applicable HUD and 
EPA regulations do have area threshold exemptions for various work 
practice standards, clearance, and certification requirements.
    A. Comparison of proposed and final rules. EPA proposed to adopt as 
the paint hazard threshold levels those levels identified in the 1995 
HUD Guidelines that defined paint in poor condition. These levels were 
``component based.'' That is, there were more than 2 square feet of 
deteriorated lead-based paint on any large interior architectural 
component (e.g., floors, walls, ceilings, doors, etc.), more than ten 
square feet of deteriorated lead-based paint on any large exterior 
architectural component (e.g., siding), or deteriorated lead-based 
paint on more than 10% of the surface area of any small architectural 
component (such as window sills and baseboards). Under HUD's Guidelines 
no action was required for paint with lesser amounts of deterioration.
    The Agency proposed using the criteria in the HUD Guidelines 
because they were becoming the de facto industry standard that was 
being considered for incorporation into model housing and building 
codes and by State officials for adoption as State standards. In 
addition, EPA decided that relatively small thresholds are needed to be 
protective, because the area of deterioration has the potential to 
increase over time and because the presence of even small amounts of 
deterioration can present a significant risk to children who exhibit 
pica for paint. EPA also noted that with an area threshold level in 
place, millions of homes would not be identified as having hazardous 
paint and that this would reduce the number of paint abatements while 
still providing protection to the populations of concern. Nevertheless, 
the preamble to the proposal emphasized that while areas of 
deteriorated paint that fall below the threshold would not be 
considered a hazard, property owners should try to keep paint intact, 
especially paint known to be lead-based, because of the risk to some 
children.
    EPA received numerous comments on the issue of the area threshold. 
Comments varied from those that argued that all lead-based paint, 
regardless of condition, should be a hazard to those that argued the 
Agency should have no separate paint standard but should rely on the 
dust and soil standards. Comments in between recommended such standards 
as all deteriorated paint should be a hazard, or that the area 
thresholds should be lower or more clearly explained. As a result of 
considering the comments and all other information available in the 
rulemaking record, EPA is issuing a final rule that generally provides 
that any deteriorated lead-based paint would be identified as a hazard. 
Below, EPA explains its final decision. Detailed responses to all 
significant comments are found in the RTC document.
    While there were no comments that could directly quantify the 
relationship between deteriorated paint and blood lead levels, two 
comments attempted a

[[Page 1228]]

very rough quantification that EPA can use for limited support for its 
determination that any deteriorated lead-based paint is a paint-lead 
hazard. One comment cited an analysis by the Consumer Product Safety 
Commission (CPSC) suggesting that very small areas of deteriorated 
lead-based paint could present hazard to young children. According to 
this analysis, chronic ingestion of lead from paint and other consumer 
products should not exceed 15 ug/day to prevent a young child from 
having a blood lead levels that exceeds 10 g/dL. Assuming a 
30% absorption rate and and paint with 0.5% lead by weight, this 
analysis estimates that a child would have to ingest as little as 6 
square inches of paint over a month to have an elevated blood lead 
level. Another comment submitted a theoretical calculation that the 
proposed standard for the dust lead hazard of 50 g/
ft2 would be exceeded if only one square centimeter of lead-
based paint with a concentration of 4 mg/cm2 were ground 
into dust and evenly distributed in an eight by ten foot room. Other 
commenters presented anecdotal evidence that children have been lead-
poisoned as a result of exposure to very small quantities of lead-based 
paint.
    In addition, EPA has also considered the fact that HUD's standards, 
upon which EPA relied as a consensus standard, have changed with the 
issuance of HUD's final regulations under sections 1012/1013 of Title 
X. EPA believes it is appropriate to conform its final paint-lead 
hazard definition to HUD's regulations. It is EPA's determination that 
HUD is the government agency with the most experience in dealing with 
residential paint and the Agency has chosen to rely on HUD's judgment 
in these matters as to amounts of deteriorated paint that would result 
in adverse health effects. Industry standards tend to follow the 
leadership of HUD guidelines and regulations. EPA's consideration of 
the issues involving the uncertainty of choosing a paint hazard area 
threshold under the statutory standard for determining what constitutes 
a hazard, as well as a discussion of the history of the HUD standard 
for hazardous paint and EPA's evaluation of HUD's regulations follow.
    B. Uncertainty analysis. Any deteriorated paint could conceivably 
cause adverse health effects, as noted by several comments. 
Furthermore, EPA would want people to know that any deteriorated paint 
needs to be dealt with. Very small amounts of lead-contaminated paint 
could be a cause for concern. Even a few paint chips could provide a 
very concentrated dose to a child that may ingest them. They may prove 
to be an attractive nuisance (particularly if they are brightly 
colored) that might encourage a child to ingest them. Any deteriorated 
surface could rapidly expand, particularly if a child should decide to 
pick at it. Because of this concern any deteriorated paint should be 
carefully monitored and stabilized.
    The Agency cautions, however, that it does not believe full scale 
abatement, with all attendant regulations, would be appropriate for all 
deteriorated lead-based paint, particularly at the lesser areas of 
deterioration (i.e., less than: 2 square feet of deteriorated lead-
based paint per room; 20 square feet of deteriorated exterior lead-
based paint; or 10% or less of deteriorated paint on the total surface 
area of an interior or exterior type of component with small surface 
area).
    Abatement in cases where there are very small amounts of 
deteriorated paint would make no sense in view of the fact that 
approximately 60 million residences have some lead-based paint and 
approximately 13.5 million have some deterioration. The National Survey 
of Lead and Allergens results will be released in the near future with 
a different estimate from that on which these numbers were based (Ref. 
?). Recommending abatement for all hazards when relatively few children 
seem to be affected when compared to the total amount of homes with 
deteriorated paint could result in the cleanup of millions of homes 
that would result in little to no reduction in risk. Therefore, EPA 
believes that minimal degradation does not warrant abatement.
    Nevertheless, the Agency leans towards being more protective in the 
face of uncertainties and has decided to have a standard at which any 
amounts of deteriorated paint would be considered a lead-based paint 
hazard. The more cracked or deteriorated paint that exists in a 
residence, the more likely it would be that amount of degraded paint 
would increase. The greater the deterioration, the more likely the 
increase in lead in dust. The paint-lead hazard levels would enable 
people to take protective action before excessive exposure to dust 
would occur. Since people are not likely to constantly monitor for dust 
levels, providing a standard that would focus on paint deterioration is 
an added level of protection. In addition, the more cracking and 
deteriorated paint that exists, the more likely the lead would be 
available for potential exposures through ingestion via dust or direct 
ingestion of paint chips.
    In addition, EPA has decided to use the HUD interim standard for 
the paint-lead hazard (Ref. 5). This is because, in addition to the 
reasons stated above for having no threshold area, , the HUD standard 
is a level that people responsible for addressing the paint-lead 
hazards are either familiar with now or will have to become familiar 
with and, in the absence of any other definitive level, to choose, it 
makes sense to use the same standard as a sister agency for ease of 
identification and compliance. Of course, EPA will reconsider its 
decision should any information become available to allow choosing a 
more definitive level.
    C. HUD's standard. EPA concurs with HUD's reasoning for setting its 
interim paint-lead hazards, as discussed in this section. HUD's 
reasoning for eliminating a level below which no action is required is 
explained in the preamble to HUD's final 1012/1013 rule. HUD stated 
that it was convinced by various comments from the public that there 
should not be an area threshold of deteriorated paint below which no 
action is required. These comments were: (1) That the de minimis 
exception (as it was referred to at the time) is arbitrary and not 
supported by science; (2) that the levels are too large, potentially 
allowing a total of over ten square feet of defective paint per room 
(counting four walls plus a ceiling plus small components); (3) that 
some owners or inspectors may use the area threshold as an excuse for 
overlooking hazardous conditions; and (4) that it is likely to shift 
the attention of workers from the importance of practicing lead hazard 
control and maintaining painted surfaces in a lead-safe manner to 
measuring the size of defective paint surfaces in order to document 
that surfaces fall above or below the de minimis level. (See 64 FR 
50156.) In addition, HUD received comments that persons dealing with 
the threshold levels found it difficult to understand and put in 
practice. These comments indicated that people would spend too much 
time measuring the exact areas of deteriorated paint instead of 
focusing on making housing lead safe. (See 64 FR 50198.)
    Based on these comments, HUD's final rule eliminates any provision 
that provides no action is needed with regard to deteriorated paint. 
HUD concluded this based on experience in its tenant-based assistance 
programs (where the area threshold provision was made effective in 
1995) that indicated that the area threshold was a cause of confusion. 
(See 64 FR 50198.) As a result, HUD's final rule provides that all 
deteriorated lead-based paint (either

[[Page 1229]]

known or presumed to be lead-based paint) must be addressed. According 
to HUD, this would simplify the rule's implementation considerably.
    Even though, under HUD's regulation all deteriorated paint must be 
addressed--through use of paint stabilization or interim controls, HUD 
nevertheless acknowledges that something less than abatement and, 
consequently, fully certified personnel, would be needed to address 
paint at lower levels of deterioration. HUD, thus, retained an area 
threshold exemption for required work practice and clearance standards. 
The levels of deterioration in this standard are the same as provided 
in EPA's TSCA section 402 work practice regulations--2 square feet of 
deteriorated lead-based paint per room, 20 square feet of paint on the 
exterior building, or 10% of the total surface area on an interior or 
exterior type of component with a small surface area. EPA's work 
practice standards were promulgated on August 26, 1996, 61 FR 45778. 
These standards have become the industry standard, having been in place 
since then and having been acknowledged as enforceable standards 
followed by the public. Thus, under HUD's regulations, activities that 
disturb painted surfaces of lesser deterioration do not have to use 
certified workers, work practices required under regulation, or work 
site clearance. (See 64 FR at 50149, 50156, 50166, 50184, 50185, and 
50198.)
    HUD had also submitted comments on this proposed 403 rule 
approximately 1 year before its 1012/1013 rule was issued. These 
comments were consistent with HUD's eventual final 1012/1013 rule in 
the sense that they explained that HUD has found it is more practical 
to require deteriorated lead-based paint of any size surface area to be 
addressed. HUD commented that use of an area threshold criterion for 
determining whether any control is necessary has the effect of having 
inspectors or risk assessors making efforts to measure surface areas 
instead of focusing on control of deteriorated paint. Further, it had 
been HUD's experience that some lead-based paint hazards have not been 
repaired because of confusion on whether or not enough of the paint had 
deteriorated to warrant attention.
    HUD recommended that EPA should eliminate the area threshold for 
eliminating any need to control deteriorated paint. However, HUD then 
stated, ``All deteriorated paint of any size should be considered a 
hazard and should be repaired; however, containment, clearance, and 
safe work practices need not be required for hazards'' below the area 
threshold.
    D. EPA's decision. For the reasons discussed above, EPA identifies 
as a paint-lead hazard any deteriorated lead-based paint, for surfaces 
other than friction surfaces, as noted below. However, EPA notes a 
caution that there is a level above which serious restrictions should 
be placed on worker certification and work practice standards and below 
which such restrictions are not needed. HUD and EPA also agree that any 
deteriorated paint needs to be dealt with.
    Additionally, to attain consistency with the requirements of the 
1012/1013 rule in the sense that action less than abatement should be 
taken with respect to levels below the hazard threshold, EPA is 
modifying the work practice standards found at 40 CFR 745.227 to 
require risk assessors to test all deteriorated paint on surfaces with 
a distinct painting history. This requirement would provide owners and 
other decision makers with information that would help these 
individuals take appropriate action (e.g., stabilize small amounts of 
deteriorated paint, increase monitoring of the property and resident 
children). Currently, the work practice standards require risk 
assessors to test paint only where deterioration exceeds the area 
thresholds. This sampling requirement, as amended, also applies to 
accessible surfaces. The existing sampling requirements do not 
separately address paint testing on these surfaces. The sampling 
requirements for friction and impact surfaces are discussed below.
    ii. Friction and impact surfaces. In the final rule, a paint-lead 
hazard exists on a friction surface that is subject to abrasion and 
where the lead dust levels on the nearest horizontal surface underneath 
the friction surface are equal to or greater than the dust hazard 
standard for that surface. A paint-lead hazard exists on an impact 
surface when there is any damaged or otherwise deteriorated paint that 
is cause by impact from a related building component such as a door 
knob that knocks into a wall or a door than knocks against its door 
frame.
    EPA did not include a preferred option for friction/impact surfaces 
in the proposed regulation, but instead asked for comment on several 
options (63 FR at 30332-30333). These options included: Any lead-based 
paint on a friction/impact surface, abraded paint on a friction/impact 
surface, or no separate standard. In the latter case, the deterioration 
of paint on friction/impact surfaces would be counted along with the 
deterioration of all paint to determine hazardous paint, or the dust-
lead hazard standard could be relied upon.
    The final paint-lead hazards for friction and impact surfaces are 
within the range of options discussed for the proposal. EPA decided to 
include a reference to abrasion as a condition of hazard on the 
friction surfaces because abrasion indicates that the rubbing or impact 
of the surfaces is likely to generate lead-containing dust. To this 
condition the Agency added the presence of dust at the dust-lead hazard 
level because the combination of deterioration with rubbing or impact 
is likely to generate lead-contaminated dust. In light of the limited 
data available to EPA, the Agency issued a standard based on a reasoned 
and common sense approach that identifies conditions likely to 
contribute lead to dust and the existence of dust at the hazard level. 
Even with the condition of deterioration added, this option falls 
within the bounds of the alternatives presented in the proposal. It is 
more stringent than the alternative based on abrasion alone but less 
stringent than the option that would identify any lead-based paint on a 
friction and impact surface as a hazard.
    In promulgating the friction surface paint-lead hazard standard, 
EPA has considered those comments that urged the Agency not to 
establish a separate standard for friction and impact surfaces, but 
instead to focus on dust. On friction surfaces, the absence of either a 
component that is not subject to abrasion or dust-lead at the hazard 
level would eliminate the component as a paint-lead hazard. This is 
because a positive dust test (i.e., presence of a hazard) suggests that 
a friction surface is a source of lead contamination.
    EPA also determined that identifying as a hazard lead-based paint 
on friction and impact surfaces regardless of the paint's condition is 
inappropriate. The Agency does not believe that intact paint can 
generate significant amounts of lead-containing dust. Commenters who 
favored Option 1 failed to provide evidence supporting the contention 
that these surfaces contribute to lead-containing dust regardless of 
the paint's condition. The strongest argument presented by a proponent 
of Option 1 stated that the hazard designation would lead to the 
testing of these surfaces for the presence of lead-based paint. 
Property owners and occupants would then, at a minimum, be encouraged 
to monitor the condition of the paint and keep it intact. Monitoring of 
paint condition, however, does not require knowledge that the paint is 
lead-based. EPA believes that owners/

[[Page 1230]]

managers/occupants of target housing should monitor the condition of 
any paint on friction and impact surfaces. If the paint deteriorates or 
becomes abraded at any point and young children occupy the residence, 
the paint should be tested to determine if the paint is lead-based and 
if a hazard exists. Furthermore, if the component has any abraded or 
deteriorated paint, it would have to be tested as part of a risk 
assessment.
    The final regulatory decision has also led EPA to amend the 
sampling requirements for lead-based paint under the work practice 
standards for risk assessments at 40 CFR 745.227. This amendment will 
require risk assessors to sample any visibly abraded or deteriorated 
paint on friction and impact surfaces as part of a risk assessment.
    iii. Accessible (chewable) surfaces. The final rule at 
Sec. 745.65(a) uses the term ``chewable'' surface to refer to the 
statutory term ``accessible'' surface. A paint-lead hazard exists on 
any chewable lead-based paint surface on which there is evidence of 
teeth marks. EPA did not include a preferred option for accessible/
chewable surfaces in the proposed regulation, but instead asked for 
comment on several options (63 FR 30333). These options included: Any 
lead-based paint on a interior window sill up to 5 feet off the floor; 
and no separate standard.
    EPA decided to include a standard for chewable surfaces in the 
final rule, which is more stringent than no separate option and less 
stringent than any lead-based paint on interior window sills, for the 
following reasons. EPA has added evidence of chewing as a factor for 
determining whether a paint-lead hazard exists and has eliminated any 
requirement that the chewable surface must be up to 5 feet from the 
floor. The data available to the Agency indicate that chewing on 
protruding components is extremely rare, it nevertheless presents a 
cause for concern. Accordingly, evidence that chewing occurs would 
enable the public to focus attention on those areas where the risk is 
real. Further, by adding this evidence of chewing requirement, there 
would be no reason to retain any height requirement for the chewable 
surface. If there is evidence of chewing on a lead-based paint surface, 
there need be no other factor to consider.
    The option that would identify lead-based paint on interior window 
sills regardless of paint condition as a hazard is not likely to 
protect any significantly larger amount of children than would be 
protected by the requirement to have evidence of chewing. On the other 
hand, such a stringent requirement could lead to action in millions of 
other properties where children do not exhibit this behavior, diverting 
resources from more significant sources of exposure such as 
deteriorated paint and lead-containing dust.
    Most proponents of this option or options to include a broader 
range of surfaces failed to provide a compelling basis to EPA for 
selecting this or broader options because they did not provide 
supporting data (and most did not provide analysis). One State health 
department suggested that this option would lead to paint testing of 
these surfaces. Property owners and occupants would then, at a minimum, 
be encouraged to monitor conditions. EPA recognizes that it would be 
useful to know if chewable surfaces are covered with lead-based paint 
so that these surfaces and the chewing behavior of resident children 
can be monitored by owners and occupants. Chewing behavior by young 
children, however, can and should be monitored in the absence of this 
knowledge. This approach would avoid widespread testing of intact 
paint, which is costly and may require damaging the paint in situations 
where an x-ray flourescence (XRF) instrument cannot be used.
    Several other commenters noted the data that EPA presented relates 
to chewing, not mouthing of surfaces. Although mouthing may be more 
frequent than chewing, exposure is less likely to result from mouthing 
of intact surfaces. If the paint on interior window sills is intact, it 
would likely have been repainted since lead-based paint was banned for 
residential use over 20 years ago. Consequently, a child who mouths 
intact paint would likely come in direct contact only with paint that 
is not lead-based and meets the Consumer Product Safety Commission 
standard for new residential paint (i.e., 0.06% by weight). It is 
important to emphasize that EPA does not intend to imply that mouthing 
of intact painted surfaces is risk-free behavior. Mouthing of intact 
paint may result in exposure to low levels of lead and other chemicals 
and, therefore, should be avoided.
    The Agency wishes to note that it is very concerned about the 
potential exposure for the relatively few children who do chew on 
intact lead-based paint on such surfaces. The Agency has concluded that 
the best way to protect these children who do chew on such surfaces is 
through guidance that strongly recommends immediate action when such 
behavior is observed. A range of responses is available to property 
owners and other decision makers, such as plastic or metal coverings.
    iv. Requirements for interpreting paint sampling. EPA is adopting 
the proposed requirements for interpreting paint sampling results (63 
FR 30339) except for one clarification that is being made in response 
to a comment from HUD. The Department stated that language regarding 
the assumption risk assessors should make about paint on surfaces that 
have not been tested was unclear. The proposed requirement stated that 
the risk assessor is to ``assume all like surfaces that have a similar 
painting history contain lead-based paint if the tested component has 
lead-based paint.'' HUD asserts that the term ``like surface'' is 
ambiguous as to whether it refers to building components in the same 
room equivalent or anywhere in the building. Chapter 7 of the HUD 
Guidelines indicates that this extrapolation can be made only to 
components in the same room equivalent, with extrapolation to untested 
room equivalents appropriate only in restricted circumstances. HUD, 
therefore, recommends that the method be amended to read ``assume all 
like surfaces in the same room equivalent that have a similar painting 
history . . .'' EPA agrees with HUD that the term ``like surfaces'' is 
ambiguous and has changed the language to read ``like surfaces in the 
same room equivalent.''
    The requirements for interpreting the results of paint testing 
apply to friction and impact surfaces, chewable surfaces, and other 
surfaces with deteriorated paint. EPA is also adopting the provision 
that allows risk assessors to use composite paint sampling. The Agency 
wishes to restate the point made in the proposal (63 FR 30339), 
however, that composite sampling for paint can be used to rule out the 
presence of lead based paint but cannot be used to identify the 
specific sample (and therefore component) that is lead-based. 
Therefore, a risk assessor should only use composite testing if he or 
she is reasonably confident that lead-based paint is not present on the 
surfaces sampled.
    4. Certified risk assessor requirement. In the proposed rule, EPA 
included a requirement that lead-based paint hazards be identified by 
certified risk assessors following the risk assessment work practice 
standards and that ex situ sample analysis be performed by recognized 
laboratories. The Agency argued that this approach would ensure the 
reliability of sampling results and provide flexibility for future 
changes in hazard evaluation technology.
    This issue received substantial public comment and raised concerns 
which

[[Page 1231]]

have led the Agency to reconsider promulgation of this requirement. 
Many commenters believed that such a requirement would inhibit the 
ability of communities and individuals to identify lead-based hazards, 
and to deliver services or pursue response actions to protect children 
when an obvious hazard is present, due to the cost of full risk 
assessments and the lack of availability of risk assessors. Other 
commenters questioned the Agency's authority to mandate such a 
restriction. Some commenters believed that certification was 
appropriate and necessary to ensure the quality and reliability of 
hazard determinations, but questioned the need for full risk 
assessments or for such lead-based paint activities to be restricted to 
risk assessors. Some commenters also suggested that a screening 
procedure be allowed in lieu of a full risk assessment.
    In reconsidering its proposed requirement, the agency agrees with 
the comments that current shortages and surpluses both in availability 
of risk assessors, and potentially high costs for full risk assessments 
could, in certain localities, impede response actions for at-risk 
children. It also recognizes that for certain hazard determinations, 
such as the visual determination of deteriorated paint, or analysis of 
dust levels, a full risk assessment may not be appropriate and may 
waste scarce resources available for hazard control or abatement.
    The Agency also recognizes that a certified risk assessor may not 
be necessary for the simple visual determination of deteriorated paint, 
and that such more elementary evaluations of hazards at a property 
could potentially be performed by individuals with less training and 
experience than a certified risk assessor, and that such limited 
activities may not in themselves require certification, but may be 
performed effectively and reliably when the person performing those 
activities does so under the supervision of a certified risk assessor 
or other certified lead professional. In addition, the Agency did not 
intend to require that certified risk assessors be required to perform 
clearance sampling following abatements. For these reasons, the Agency 
believes it prudent to deal with these general issues in subsequent 
rulemakings and regulatory interpretations which will further address 
work practices and /certification requirements for both.
    While the Agency believes that these issues are best addressed in 
the overall framework of the section 402 work practices and 
certification standards, it is nevertheless concerned that those 
uncertified individuals who may seek to determine hazards may not 
always produce results of the same quality and reliability as those 
obtained by a certified risk assessor, and that the use of uncertified 
personnel to determine the presence or absence of lead-based paint 
hazards should be considered with caution.
    Sampling of dust and soil to determine lead-based paint hazards is 
not a trivial procedure. The procedures which must be followed by risk 
assessors in determining the nature and extent of lead-based paint 
hazards at a property are stated at 40 CFR 745.227. If uncertified 
individuals are used to determine hazards, it is critical that they 
have the appropriate training, and follow appropriate procedures for 
sampling, custody of samples, and analysis of samples to obtain 
defensible results. If uncertified persons lack the training and 
experience to determine lead-based paint hazards properly, their 
findings may result in detrimental consequences to the health of 
children and create false liabilities for property owners. A false 
negative result--the failure to determine the presence of a hazard when 
one actually exists, will fail to protect children from real hazards. A 
false positive result--the determination of a hazard when none is 
present--may cause an owner to spend additional resources to hire a 
certified risk assessor.

IV. Overview of Significant Public Comments and EPA's Responses

    In response to the proposed rule, EPA received over 500 comments 
representing the general public, national and local environmental 
groups, national and local lead-poisoning prevention advocacy groups, 
the lead mining and manufacturing industry, State and local 
governments, other Federal Agencies, community-based organizations, and 
Federal Advisory Committees, among others. These comments address 
numerous issues, including EPA's interpretation of the statutory 
requirements, the policy basis for the standards, the Agency's 
technical analysis, and the Agency's decisions regarding the standards 
and other regulatory requirements. As noted previously, the RTC 
document contains EPA's detailed characterizations and responses to all 
significant public comments.
    This section of the preamble presents in summary form, the 
characterizations and responses to the comments on the issues that EPA 
believes are of greatest interest to the public. These comments, 
specifically, are as follows: (1) It is not appropriate under the 
statutory requirements of Title X, or from a policy perspective, to 
consider costs in the development of the hazard standards; (2) 
standards would fail to protect children in inner-city neighborhoods 
who are at greatest risk; (3) the dust hazard standard should be 
significantly lower; and (4) EPA should provide a better explanation of 
the differences between the TSCA section 403 hazard standards for soil 
and the Superfund approach for addressing lead in soil.

A. Consideration of Costs in Developing Dust and Soil Hazard Standards

    As discussed extensively in the preamble to the proposed rule, this 
preamble and the RTC document, EPA chose to base its dust and soil 
hazard standards on consideration of the potential for risk reduction 
of actions that may be taken (considering uncertainties in the data and 
scientific evidence describing the risks) and whether such risk 
reductions are commensurate with the costs of those actions. This is 
commonly referred to as cost-benefit balancing. Further, the Agency has 
decided to base the hazard standards on the levels at which, on a 
national level, risks justify abatement in order to comply with the 
statutory standard that the hazard levels are those that ``would 
result'' in adverse health effects. EPA has noted, however, in various 
places throughout this preamble, that temporary measures and interim 
controls can be appropriate in many situations. The analysis of 
abatement, as noted further below, is EPA's analytical model. The 
Agency may not require any particular action to be taken.
    A number of comments from some advocacy groups and some government 
organizations expressed general disagreement with this approach from 
both a legal and policy standpoint. Other comments provided detailed 
arguments both for and against this approach. EPA responds in the RTC 
document to the more detailed arguments raised by these comments. 
However, the Agency believes it is appropriate to discuss the issue 
more generally in this preamble to clear up important issues and to 
allay apparent fears of some members of the public.
    Comments criticizing EPA's use of cost-benefit balancing generally 
argued that it is inappropriate to make decisions regarding the 
selection of hazard standards based on cost or other risk management 
considerations. Serious concern was expressed that EPA modified health-
based protective standards by cost, or feasibility, considerations and 
that scientific decisions about a health based standard

[[Page 1232]]

cannot be modified by such considerations. These comments argued that 
EPA should have made decisions by tying hazard standards to a target 
blood lead level. Costs and other risk management factors should only 
be considered by persons implementing the standards.
    EPA believes it is necessary to explain how cost-benefit balancing 
was used in this rulemaking. First, the decision to use a cost-benefit 
balancing approach is within the Agency's statutory authority. Title X 
and TSCA Title IV neither require nor preclude the consideration of 
costs in setting the standards. EPA's interpretation of the statute, 
however, shows that an approach that uses cost-benefit balancing is 
consistent with the statutory language and legislative history, as 
described more fully in the proposal (63 FR at 30312-30314), earlier in 
this preamble and the RTC document.
    A cost-benefit balancing framework provides EPA with an approach to 
factor uncertainty in scientific data into the decisionmaking and to 
set standards where there are no distinct boundaries. For this action, 
EPA's dilemma is to choose as a hazard that level of lead above which 
the Agency is reasonably confident that adverse effects would result. 
Below that level there may still be adverse effects, but the weight of 
scientific evidence indicating adverse effects is not as great. This 
formulation, of course, is an over simplification by necessity. The 
Agency is tasked with line drawing by Congress in a circumstance where 
there are no clear lines. At the simplest level, no one can say that 
1,201 ppm of lead in soil is worthy of abatement and 1,199 ppm is not. 
As a result, consistent with the applicable statute, EPA used a 
balancing approach to pick the cutoff level above which a regulatory 
hazard exists.
    EPA's approach first, and foremost, considers the weight of 
evidence as to whether dust or soil lead will actually result in 
adverse effects. The surrogate for adverse effects is a consideration 
of blood lead levels and the potential effects elevated blood-lead 
levels can have on intelligence and lifetime earnings. Reduction in 
blood lead levels and, presumably, increased lifetime earnings are then 
related to reduction in environmental levels. No one would dispute that 
the higher the environmental lead levels are in any particular medium 
(e.g., soil or dust), the greater the likelihood of increased blood-
lead due to exposure from that medium. At low environmental lead 
levels, there is less confidence that any specific medium is 
responsible for blood-lead level increases. EPA's problem is drawing 
the line at which concern for exposure to lead from paint, dust, and 
soil diminishes that is, those levels below which EPA will decide a 
regulatory hazard does not exist.
    EPA, using the best scientific evidence it had, did the line 
drawing by assigning a monetary value to the health effects that will 
be prevented (``benefits'') and evaluating whether elimination 
(abatement) of the lead hazard that causes these effects is 
commensurate with the societal resources (determined by the costs of 
abatement) that would be expended by doing the abatement. This gives 
EPA a way to evaluate the certainty of the scientific evidence and 
develop the confidence it needs to determine that the levels it has 
chosen would result in adverse effects. Essentially, in this area of 
scientific uncertainty about risk, EPA is more willing to say that a 
regulatory hazard exists if it can find that costs of abatement are 
expected to be reasonable. Costs, of course, are given far less weight 
(or maybe no weight at all) in circumstances in which adverse effects 
are a certainty. Certainty simply does not exist at the lower lead 
levels with which the Agency is dealing in this rule.
    Two salient points need to be reiterated here on how a cost-
balancing analysis was used in this rulemaking. In the first place, for 
this rule, cost-benefit balancing is a useful method for decision 
making within the range of uncertainty in the Agency's analyses. In any 
event, use of the analysis only helps define the boundaries of the 
inquiry and is not a sole basis for any decision. Once EPA decided the 
range of options, the Agency chose the levels within those ranges. 
Second, EPA used the normative cost-benefit analysis only to compare 
options with the understanding that the relative balance of costs and 
benefits estimated should be reflective of the relative balance of 
actual costs and benefits. Thus, decision makers still needed to 
exercise judgement. There is no ``black box'' into which numbers are 
entered and a decision comes out.
    The comments that object to EPA's approach for hazard determination 
for dust and soil offer as an alternative determination of hazards by 
reference only to environmental levels that are associated, through 
modeling, with a percentage of children exceeding various blood lead 
levels. For example, a hazard standard could be that level at which 
models show no more than 5% of children would exceed 10 g/dL 
of blood lead. This type of standard would be based solely on the 
toxicity of lead (at a particular blood level) and the potential 
exposure. While EPA did use this method for picking the initial 
candidate hazard levels, the Agency declined to use this method for 
choosing hazards.
    The reasonableness of EPA's approach is supported to a large extent 
by the fact that the Agency received several comments recommending 
particular blood levels and percentages but no comment provided EPA 
with any kind of rational basis for choosing the standard based on 
those levels and percentages. Most of these comments argued for having 
no more than 5% of children above 10 g/dL. However, they 
provided no rationale for saying why this would meet the ``would 
result'' standard for determining lead-based paint hazards (i.e., why 
shouldn't we have zero children above 10 g/dL, or why 10 
g/dL is the proper number for the hazard determination and not 
a higher or lower number).
    EPA's view of the cost-benefit approach points out another 
misconception in the comments about cost-benefit analysis. This 
misconception is that EPA's approach is not health-based, but instead 
modifies a protective standard based on cost considerations. Commenters 
also seem to believe that the Agency is using cost considerations to 
leave children unprotected. This is not the case. Instead, as discussed 
above, EPA evaluated different options within the range of scientific 
uncertainty provided by the two models used in the Agency's analyses. 
While it is true that as levels get higher, the certainty regarding the 
probability of harm increases, this does not mean that lower levels 
should be discounted or never addressed. It may mean, however, that as 
you go lower, the levels are less likely to meet the goal of this rule 
to set levels at which all abatements are specified to be conducted in 
a specific way. For purposes of setting such a national standard, EPA 
believes that it is reasonable to choose a level within the range at 
which there is greater certainty regarding the probability of harm, 
being always mindful of the need to advise the public that lower levels 
are not risk-free and may in individual cases present significant 
risks.
    Given the range of uncertainty shown in its analyses for this rule, 
EPA is choosing an option that the Agency believes provides protection, 
and at which there is a higher level of certainty that in all cases 
abatement is likely to reduce risks significantly. EPA has set its dust 
and soil hazard standards at the lowest levels at which it believes 
across-the-board abatement and its associated expenditure of resources 
is justified. Evaluation of resource allocation, of which costs are a 
measure, is a method

[[Page 1233]]

that was used in this rule as a tool to make decisions within a set 
range of uncertainty.
    Finally, EPA's hazard standards should not be considered in 
isolation, but must be considered along with the Agency's tiered 
approach for paint and soil. Under this approach, the Agency recognizes 
that risks could exist below the hazard standard and recommends that 
organizations and individuals may want to consider taking some action, 
informed by knowledge of local circumstances, at levels below the 
hazard levels.

B. Standards Do Not Protect Children at Greatest Risk

    Groups representing environmental justice and children's health 
protection interests argued that the standards do not protect children 
at greatest risk. Some argued that the 1 to 5% probability level for 
exceeding 10 g/dL (EPA's basis for choosing the initial 
candidate hazard levels in the final rule and the Agency's basis for 
evaluating lead-contaminated dust and soil in the proposed rule) would 
result in no improvement because the percentage of children with 
elevated blood lead levels is already below 5%. Therefore, the 
populations with the highest blood lead levels would not benefit from 
the standards.
    EPA strongly disagrees with this assertion and, in fact, has 
concluded that the exact opposite is true. The argument that the 1 to 
5% probability criteria would result in no improvement for children at 
risk reflects confusion with respect to the national blood-lead data 
and risk to individual children. The national blood-lead data is 
composed of millions of children exposed to a broad variety of 
environmental-lead conditions. As such, it actually consists of a broad 
range of individual risks ranging from near zero to levels above 50% 
for children exposed to the very worst conditions. The average 
population risk is just below 5%. Children in at-risk communities tend 
to have the higher individual risk, as borne out by the higher 
prevalence of elevated blood lead levels in these communities (e.g., > 
20% for African American children living in pre-1950 housing).
    In fact, the hazard standards identify a higher percentage of 
African-American children than any other group. Moreover, instead of 
offering more protection to children in at-risk communities, more 
stringent standards may actually afford less protection to these 
children by diluting the resources available to address hazards in 
these communities.

C. Dust-Lead Hazard Standard Should be Significantly Lower

    Several comments argued that the dust-lead hazard should be 
significantly lower, in the 5 to 10 g/ft2 range. 
They claimed that a hazard should be found because more than 5% of 
children would have blood lead levels above 10 g/dL. This 
recommendation is based on several analyses including an independent 
analysis of the Rochester Lead-in-Dust Study and the so-called HUD 
pooled analysis. According to these commenters, these analyses show 
that significant risk exists where floor dust-lead levels are below 10 
g/ft2.
    EPA agrees that significant risks should be addressed but disagrees 
with the approach of these commenters. First, as noted above, these 
comments provided no rational basis for deciding that a regulatory 
hazard exists based solely on environmental levels associated with 
particular blood lead levels. Nevertheless, EPA concludes after review 
of these comments and analyses that the results showing more than 5% of 
children exceed 10 g/dL at the low environmental levels were 
achieved by focusing almost exclusively on the contribution of dust-
lead to exposure and not adequately accounting for the contribution of 
soil and deteriorated lead-based paint to exposure. When exposure to 
these other sources is adequately accounted for, as EPA believes was 
done in its analysis, significant risk attributable to dust-lead is not 
found until dust-lead levels on floors reach 40 g/
ft2.
    The data also indicate that to make predictions of risk based 
exclusively on dust-lead measurements would be an inefficient and 
imprudent approach. An examination of the Rochester data reveals that 
in practically every case where there was a child with an elevated 
blood lead level and floor dust lower than 40 g/
ft2, soil-lead levels were elevated and/or deteriorated 
lead-based paint was present. Moreover, in most houses with dust-lead 
levels below 40 g/ft2, children did not have 
elevated blood lead levels because other significant sources of 
exposure were not present.
    EPA believes that the above-mentioned empirical data supports its 
view that it is more technically correct to assess and control exposure 
in all three media, as opposed to taking an approach that focuses 
exclusively on dust. Given the uncertainty that exists with respect to 
the contribution to exposure presented by each medium individually, the 
Agency believes that it is prudent to control exposure from the 
combination of paint, dust, and soil together rather than individually. 
Also, control of all three media also prevents recontamination of one 
medium by another, making control efforts more effective.

D. Relationship of Soil Hazard Standard to Superfund Soil Cleanup 
Standards

    Several commenters expressed concern about the difference between 
the TSCA approach for addressing lead in soil in pre-1978 residential 
property and the approach under programs administered by the Office of 
Solid Waste and Emergency Response (OSWER) specifically, Superfund 
sites and RCRA Corrective Action Facilities. Responses to comments on 
the details of the differences in the programs are addressed in the RTC 
document. In this section, however, EPA responds generally to issues 
raised on the relationship between the programs administered by OSWER 
and TSCA. In general, comments identified concerns that differences in 
the two programs could cause confusion and that persons responsible for 
cleanup under the OSWER programs could use the TSCA standard to avoid 
taking response actions to achieve protection.
    As a preliminary matter, EPA emphasizes that at lead-contaminated 
residential sites both TSCA and the OSWER programs seek to protect the 
health of the most susceptible population (children under 6 years of 
age) and to promote a program that assesses and addresses risk. The 
approaches taken by the various programs share many important aspects, 
but also differ in some respects because of their purposes. The TSCA 
program is guided by this section 403 rule, which identifies lead-base 
paint hazards, which consist of lead paint and lead-containing 
residential dusts and soils that the Agency considers to be hazards 
under applicable statutory criteria. Guidance for the OSWER programs is 
provided by the 1994 Revised Interim Soil Lead (Pb) Guidance for CERCLA 
Sites and RCRA Corrective Action Facilities (OSWER Directive # 9355.4-
12, 1994) and Clarification to the 1994 Revised Interim Soil Lead (Pb) 
Guidance for CERCLA Sites and RCRA Corrective Action Facilities (OSWER 
Directive # 9200.4-27P, August 27, 1998) (Refs. 15 and 16).
    The EPA programs that implement the RCRA and CERCLA statutes rely 
on the IEUBK model for relating environmental levels to blood lead 
levels in children. The OSWER soil lead guidance recommends that the 
IEUBK Model be applied to utilize site-specific information that can be 
very important in evaluating the risks at hazardous

[[Page 1234]]

waste sites with residential exposure scenarios. This section 403 rule 
also employs analyses that have relied on the IEUBK Model and the 
empirical model which employs analyses based on empirical data.
    In the absence of site-specific information at hazardous waste 
sites, EPA believes that soil lead levels above 400 ppm may pose a 
health risk to children through elevated blood lead levels. The 400 ppm 
screening level identified in the OSWER soil lead guidance is 
consistent with both the children's play area hazard determination 
identified in this rule and the initial candidate hazard level 
discussed in this preamble. Site-specific information at hazardous 
waste sites would provide a basis to identify a different soil lead 
level that would be protective of health. The TSCA soil hazard levels 
of 400 ppm (play areas) and an average 1,200 ppm (rest of yard) should 
not be understood as a minimum cleanup level for lead in soils at 
hazardous waste sites and levels greater than these could be consistent 
with CERCLA requirements, depending on site-specific factors. Soil lead 
levels less than these still may pose serious health risks and may 
warrant timely response actions including abatement. The hazard 
standard in this TSCA rule was intended as a ``worst first'' level that 
will aid in setting priorities to address the greatest lead risks 
promptly at residential and child-occupied facilities affected by lead-
based paint.
    In contrast with the section 403 rule, which establishes minimum 
national standards that are designed to be used at millions of 
residential properties and child-occupied facilities across the nation, 
the studies that take place at CERCLA or RCRA involve multiple 
hazardous substances with potentially numerous sources of contamination 
and multiple pathways of exposure that require that response levels be 
developed with site-specific information. Other statutory and 
regulatory criteria that would typically be considered in determining a 
final clean-up number include: long-term effectiveness and permanence; 
and reduction of toxicity, mobility, or volume through treatment; 
short-term effectiveness; implementability; cost; State acceptance; and 
community acceptance.

V. References

    The official record for this rulemaking has been established under 
docket control number OPPTS-62156, and the public version of the 
official record is available for inspection as specified in Unit I.B.2. 
The following is a listing of some of the documents that have been 
placed in the official record for this rulemaking, including those 
specifically referenced in this rulemaking.
    1. Brody, D.J., J.L. Pirkle, R.A. Kramer, K.M. Flegal, T.D. Matte, 
E.W. Gutiter, and D.C. Paschal. 1994. ``Blood Lead Levels in the U.S. 
Population: Phase I of the Third National Health and Nutrition 
Examination Survey (NHANES III, 1988 to 1991).'' Journal of the 
American Medical Association. 272(4):277-283.
    2. Pirkle, J.L., D.J. Brody, E.W. Gunter, R.A. Kramer, D.C. 
Paschal, K.M. Flegal, and T.D. Matte. (1994) ``The Decline in Blood 
Lead Levels in the United States: The National Health and Nutrition 
Examination Surveys (NHANES).'' Journal of the American Medical 
Association. 272(4):284-291.
    3. CDCP. (1991, October) Preventing Lead Poisoning in Young 
Children: A Statement by the Centers for Disease Control.
    4. CDCP. (1997, February 21) ``Update: Blood Lead Levels-U.S., 
1991-1994.'' Morbidity and Mortality Weekly Report. 46(7):141-145.
    5. HUD. (1995, June) HUD Guidelines for the Evaluation and Control 
of Lead-Based Paint Hazards in Housing.
    6. HUD. (1995) The Relation of Lead-Contaminated House Dust and 
Blood Lead Levels Among Urban Children. Volumes I and II. Final report 
to U.S. HUD from the University of Rochester School of Medicine, 
Rochester, NY and The National Center for Lead Safe Housing, Columbia, 
MD.
    7. USEPA. (1990, January) ``Report of the Clean Air Scientific 
Advisory Committee on its Review of the OAQPS Lead Staff Paper and the 
ECAO Air Quality Criteria Document Supplement.'' EPA-SAB-CASAC-90-002. 
January.
    8. USEPA. (1994) Reducing Lead Hazards When Remodeling Your Home. 
EPA 747-R-94-002.
    9. USEPA, OPPT. (1995, April) Report on the National Survey of Lead 
Based Paint in Housing - Base Report. EPA 747-R-95-003.
    10. USEPA, OPPT. (1995, April). Report on the National Survey of 
Lead Based Paint in Housing - Appendix II: Analysis. EPA 747-R-95-005.
    11. USEPA. (1995, April) Report on the National Survey of Lead-
Based Paint in Housing. Appendix I: Design and Methodology. EPA 747-
R95-004.
    12. USEPA. (1997, December) Risk Analysis to Support Standards for 
Lead in Paint, Dust, and Soil. Volumes I and II. EPA 747-R-97-006.
    13. USEPA. (1998) Economic Analysis of TSCA Section 403: Lead-Based 
Paint Hazard Standards.
    14. USEPA. (2000) Economic Analysis of TSCA Section 403: Lead-Based 
Paint Hazard Standards.
    15. USEPA. (1994) 1994 Revised Interim Soil Lead (Pb) Guidance for 
CERCLA Sites and RCRA Corrective Action Facilities, OSWER Directive 
#9355.4-12, 1994.
    16. USEPA. (1998, August 27) Clarification to the 1994 Revised 
Interim Soil Lead (Pb) Guidance for CERCLA Sites and RCRA Corrective 
Action Facilities, OSWER Directive #9200.4-27P.
    17. USEPA. (1996) Urban Soil Lead Abatement Demonstration Project, 
Volume I: EPA Integrated Report #600/P93/001aF.

VI. Regulatory Assessment Requirements

A. Executive Order 12866

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), the Office of Management and 
Budget (OMB) has designated this an ``economically significant 
regulatory action,'' because this action may result in behavioral 
changes that involve increased expenditures by owners of target housing 
and child-occupied facilities, with a potential annual effect on the 
economy of $100 million or more. Although the establishment of the 
standards contained in this rule do not, in and of themselves, mandate 
any action, the Agency recognizes that the existence of the hazard 
standards may influence the decisions or actions of owners of target 
housing. This rulemaking was therefore submitted to OMB for review 
under this Executive Order, and any changes made during that review 
have been documented in the public version of the official record.
    In addition, while EPA does not believe that this action, in and of 
itself, imposes any requirements, EPA has prepared an economic analysis 
of the potential impacts of this action, which is contained in a 
document entitled Economic Analysis of Toxic Substances Control Act 
Section 403: Lead-Based Paint Hazard Standards (Ref. ). The Agency 
believes that, in establishing the standards, it is reasonable to 
consider the potential costs and benefits associated with the possible 
actions that an owner could or might take based on the hazard standard. 
The analysis, in conjunction with other considerations, helped the 
decision-makers to select the final hazard standards presented in this 
document. The analysis is available as a part of the public version of 
the official record for this action and is briefly summarized here.

[[Page 1235]]

    Building on the economic analysis for the proposed rule (Ref. ?), 
which is summarized in Unit XII of the proposed rule (63 FR at 30349-
30351), the final economic analysis contains one major change. For the 
final rule, EPA separtely assessed the costs and benefits associated 
with a separate soil standard for play areas and presented the results 
in Appendix 7 of the Economic Analysis. The following summary of the 
economic analysis focuses on this change. A summary of the rest of the 
analysis was presented in the proposed rule (63 FR at 30349-30351).
    In this additional analysis, the revised model goes through a 
three-step process to estimate which homes might incur a soil abatement 
and what parts of the yard might be addressed. The first two steps are 
the same as the original model, a third step was added to address the 
play area issue. In the original model, if the home's average of near 
and remote soil concentrations did not exceed the standard, then the 
model assumed that no soil abatements would occur. In the revised 
model, if the average soil concentrations were below the soil standard, 
then the play area (represented by the remote area) soil concentration 
was compared to the standard. If this alone exceeded the standard, then 
the model assumed that the play area soil would be removed and 
replaced.
    The Agency notes that the costs presented here for soil response 
actions are based upon the assumption that those responses would be 
soil abatement. As noted previously in this preamble, in performing its 
analyses for this rule, the Agency could not quantitatively compare 
interim control strategies with abatement strategies because there are 
only limited data available on the effectiveness of interim controls 
over extended periods of time, and those data which are available are 
not suitable for quantitative comparisons with abatements. 
Nevertheless, experience with interim control programs is increasing 
and certain organizations, particularly public health and housing 
agencies, believe they have been able to develop effective programs for 
interim controls which achieve virtually the same degree of risk 
reduction as do abatement programs, but at much reduced cost. Thus, to 
the extent that interim control strategies are used rather than 
abatement, the actual costs may be different from those presented 
below.
    The play area is assumed to be much smaller than the entire remote 
area of the yard, and separate soil intervention unit costs were 
estimated for the play area. The costs assume that the average play 
area for a single-family home is 200 square feet, and the average play 
area for a multi-family building is 400 square feet. The play area soil 
intervention costs are estimated to be: $1,070 for a single-family 
house ($1,738 if the soil is hazardous), and $1,566 for multi-family 
buildings ($2,903 if the waste is hazardous). In addition to these soil 
intervention costs, each home incurs a dust clean-up. Because dust 
clean-ups are required for certain other interventions, a particular 
home may already be incurring dust clean-up costs and would not incur a 
second set of dust clean-up costs.
    The total costs (estimated over a 50-year span, and discounted at 
3%) for the final dust and soil standards of 40 g/
ft2 for floor dust, 250 g/ft2 for window 
sill dust and 1,200 ppm for soil, are estimated to be $69 billion, 
while the total estimated benefits are $192 billion using the IEUBK 
model and $49 billion using the empirical model, resulting in estimated 
net benefits of $123 billion using the IEUBK model and $20 billion 
using the empirical model. About 26.7 million homes are projected to 
exceed one or more of the standards, and the Agency projected 
approximately 46.0 million children would experience reduced exposure 
to household lead in soil, dust, and paint.

B. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the Agency hereby certifies that this final rule 
will not have a significant economic impact on a substantial number of 
small entities. The factual basis for the Agency's determination is 
presented in the small entity impact analysis prepared as part of the 
economic analysis for this rule (Ref. 14), and is briefly summarized 
here.
    It is important to first note that this rule does not, in and of 
itself, mandate any action, or directly impose any costs. Nevertheless, 
since the Agency recognizes that the existence of the hazard standards 
may influence the decisions or actions of owners of target housing, the 
Agency has considered the potential costs and benefits associated with 
the possible actions that a small entity could or might take based on 
the hazard standard. In addition, EPA has already promulgated several 
regulations implementing other sections of Title X that use or 
reference the hazard standards contained in this rule, and also has a 
few other related regulations under development. In promulgating these 
regulations, the Agency has and will continue to consider the potential 
adverse impacts on small entities in the context of those regulations, 
and in compliance with the RFA. In general, EPA strives to minimize 
potential adverse impacts on small entities when developing regulations 
to achieve the environmental and human health protection goals of the 
statute, and the Agency.
    For the purpose of analyzing the potential impacts of this rule on 
small entities, EPA used the definition for small entities that is 
found in section 601 of the RFA. Under section 601, ``small entity'' is 
defined as: (1) A small business that meets Small Business 
Administration (SBA) size standards codified at 13 CFR 121.201 which 
uses the NAICS codes to categorize businesses; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field. The 
SBA size standard for the types of small businesses potentially 
impacted by this rule is $5 million in annual revenues for operators of 
multi-family housing or apartment buildings (NAICS code 531110 and 
531311).
    It its analysis, the Agency has assumed that this rule would impact 
small businesses that engage in lead-based paint activities (i.e., 
abatement, risk assessment, etc.), small businesses that offer LBP 
activity related training, small businesses that own or manage rental 
properties involving target housing, small not-for-profit organizations 
that are engaged in LBP activities and are not dominant in their field, 
and small governmental jurisdictions that receive assistance through 
Federal housing programs (i.e., city and county public housing 
authorities). By definition, States and Federal agencies are not small.
    Based on the analysis, the Agency estimates that approximately 99% 
of the firms would have less than a 1% impact on revenues due to this 
rule, and approximately 1% of firms could experience impacts between 1% 
and 3% of rental revenue. A comparison of annual compliance costs to 
annual rental income is equivalent to the commonly used ratio of 
compliance costs to sales. Although the rule could impact a substantial 
number of small entities, this analysis indicates that the potential 
impact should not be significant.
    Information relating to this determination has been provided to the 
Chief Counsel for Advocacy of the Small Business Administration upon 
request,

[[Page 1236]]

and is included in the public version of the official record for this 
rulemaking.

C. Paperwork Reduction Act

    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information subject to OMB approval under 
the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.) unless it 
displays a currently valid OMB control number. The OMB control numbers 
for EPA's regulations, after initial publication in the Federal 
Register, are maintained in a list at 40 CFR part 9.
    This final regulatory action does not contain any information 
collection requirements that require additional OMB approval under the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. Specifically, 
States and Tribes with authorized programs under 40 CFR part 745, 
subpart L will still need to demonstrate their standards for 
identifying lead-based paint hazards and clearance standards for dust, 
in the reports that they submit to EPA under 40 CFR 745.324(h). This 
reporting requirement is contained in the regulations implementing TSCA 
sections 402(a) and 404, for which the Information Collection Request 
(ICR) has already been approved by OMB under control number 2070-0155 
(EPA ICR No. 1715). As a part of the economic analysis, EPA also re-
examined this ICR and determined that the burden estimates provided in 
the ICR would not change as a result of the promulgation of the 
standards proposed. Because there are no new information collection 
requirements to consider, or any changes to the existing requirements 
that might impact the existing burden estimates, additional OMB review 
and approval under the PRA is not necessary.

D. Unfunded Mandates Reform Act

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, EPA has determined that this rule does not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any 1 year. As indicated 
previously, this rule does not, in and of itself, mandate any action, 
or directly impose any costs. Nevertheless, the Agency recognizes that 
the existence of the hazard standards may influence the decisions or 
actions of State, local or tribal governmental officials as they relate 
to lead-based paint activities, i.e., hazard interventions and risk 
assessments. In addition, EPA has already promulgated several 
regulations implementing other sections of Title X that use or 
reference the hazard standards contained in this rule, and has a few 
other related regulations under development. In promulgating these 
regulations, the Agency has and will continue to consider the potential 
impacts on State, local or tribal governments.
    The UMRA requirements in sections 202, 204, and 205 do not apply to 
this rule, because this action does not contain any ``Federal 
mandates'' or impose any ``enforceable duty'' on State/Tribal, or local 
governments or on the private sector. The requirements in section 203 
do not apply because this rule does not contain any regulatory 
requirements that might significantly or uniquely affect small 
governments.

E. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that 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.''
    This final rule does not have federalism implications, because 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, as specified in Executive Order 13132. Although the 
standards established by this regulation may be adopted by any State, 
this regulation does not contain any mandates, and will not, therefore, 
impose any substantial direct costs on States. Nor would the rule 
substantially affect the relationship between the national government 
and the States, or the distribution of power and responsibilities among 
the various levels of government. Thus, Executive Order 13132 does not 
apply to this rule.
    Although section 6 of Executive Order 13132 does not apply to this 
rule, EPA involved State and local governmental agencies in an 
extensive ``dialogue'' process, which is discussed in more detail in 
Unit II of the preamble to the proposal (63 FR at 30307). During 
development of the proposed rule, EPA also consulted with the States at 
meetings of the Forum on State and Tribal Toxics Action and the annual
    EPA meeting with State program representatives.

F. Executive Order 13084

    Under Executive Order 13084, entitled Consultation and Coordination 
with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not 
issue a regulation that is not required by statute, that significantly 
or uniquely affects the communities of Indian tribal governments, and 
that imposes substantial direct compliance costs on those communities, 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments, or EPA 
consults with those governments.
    This rule does not significantly or uniquely affect the communities 
of Indian tribal governments, nor does it impose substantial direct 
compliance costs on such communities. Accordingly, the requirements of 
section 3(b) of Executive Order 13084 do not apply to this rule.
    Nevertheless, although tribal governments are not required to 
administer any of the Lead Programs, the Agency consulted with 
interested Tribal government representatives as part of the Forum on 
State and Tribal Toxics Action and EPA's annual national lead meeting 
with States and tribes. The Agency has also provided extensive 
technical and financial assistance.

G. Executive Order 12898

    Pursuant to Executive Order 12898, Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994), the Agency has considered 
environmental justice-related issues with regard to the potential 
impacts of this action on the environmental and health conditions in 
minority and low-income populations. The Agency's standards will 
protect children in minority and low-income communities from 
disproportionate burdens. This is based on the findings of the Agency's 
economic analysis which shows that non-white populations receive more 
of the public health benefit associated with the standards.
    In addition, EPA consulted with representatives of a variety of 
interests, including members of environmental justice advocacy groups. 
The Dialogue Process, which EPA specifically established to provide 
input into the decision making process, included a low-income parent, 
two members of the National Environmental Justice Advisory Council, and 
representatives

[[Page 1237]]

of two other groups who spoke on behalf of disadvantaged populations. 
These individuals comprised 20% of the membership of the process. 
Moreover, during the public comment period, EPA held two public 
meetings where residents of low-income communities and representatives 
of environmental justice groups offered public comment to EPA. The 
Agency also received written comments from 50 groups and several 
hundred individuals raising environmental justice concerns. 
Consequently, EPA believes that it has complied with the provision of 
the executive order to provide representatives of environmental justice 
interests to participate fully in the process and to provide input and 
comment to the Agency.
    Furthermore, recognizing that these standards would be used by and 
affect millions of people that do not have a comprehensive 
understanding of the science of lead hazards, EPA made a conscious 
decision to make the standards simple. For example, instead of joint 
standards that might have better reflected overall risk under some 
circumstances, EPA chose to establish media-specific standards because 
they are easier to understand and use. Outreach documents (e.g, fact 
sheets) are written and designed with the specific objective of making 
the regulation easy for the public to understand. In addition, EPA's 
broader lead outreach program includes extensive elements that 
specifically target non-white and low income communities.

H. Executive Order 13045

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), applies to this rule because OMB has determined that this rule 
is ``economically significant'' as defined under Executive Order 12866 
(see Unit VI.A.). In addition, the environmental health or safety risk 
addressed by this rule may have a disproportionate affect on children.
    In accordance with section 5(501) of Executive Order 13045, EPA has 
evaluated the environmental health or safety effects of lead-based 
paint on children in the selection of the hazard standards contained in 
this rule. The results of this evaluation are contained in the ``Risk 
Analysis to Support Standards for Lead in Paint, Dust, and Soil'' and 
the supplement to this analysis. Copies of these documents have been 
placed in the public version of the official record for this rule. This 
analysis focused almost exclusively on assessing exposure and risk to 
young children.
    Moreover, the standards selected by EPA are designed first and 
foremost to protect children from lead in residential paint, dust, and 
soil. In this regard, EPA believes that it has selected the most 
protective standards possible. Although the Agency could have selected 
numerically more stringent standards, EPA concluded that more stringent 
standards would afford less protection to children because EPA believes 
that limited resources would be diluted and possibly diverted from 
children who are at greatest risk. The standards will also protect 
children by supporting implementation of other provisions of the 
national lead program, such as hazard disclosure prior to the sale or 
rental of most pre-1978 housing and evaluation and control of lead-
based paint hazards and Federally-assisted and Federally owned housing 
prior to disposition.

I. National Technology Transfer and Amendment Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    The Agency has determined that there are no voluntary consensus 
standards for lead-based paint hazards. However, the Agency has, where 
appropriate, referred to voluntary consensus standards developed by 
such organizations as the American Society for Testing and Materials 
(ASTM) with respect to sampling and analytical methods.

J. Executive Order 12630

    EPA has complied with Executive Order 12630, entitled Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights (53 FR 8859, March 15, 1988), by examining the takings 
implications of this rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the Executive Order.

K. Executive Order 12988

    In issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct, as required by 
section 3 of Executive Order 12988, entitled Civil Justice Reform (61 
FR 4729, February 7, 1996).

VII. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a major rule may take effect, the Agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and the Comptroller General 
of the United States. EPA has submitted a report containing this rule 
and other required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the United States. This 
rule is a ``major rule'' as defined by 5 U.S.C. 804(2). A major rule 
cannot take effect until 60 days after date it is published in the 
Federal Register or is submitted to Congress whichever is later. This 
rule will take effect on March 6, 2001.

List of Subjects in 40 CFR Part 745

    Environmental protection, Hazardous substances, Lead poisoning, 
Reporting and recordkeeping requirements.


    Dated: December 22, 2000.
Carol M. Browner,
Administrator.

    Therefore, 40 CFR part 745 is amended as follows:

PART 745--AMENDED

    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.


    2. By adding new subpart D to read as follows:
Subpart D--Lead-Based Paint Hazards
Sec.
745.61  Scope and applicability.
745.63  Definitions.
745.65  Lead-based paint hazards.

Subpart D--Lead-Based Paint Hazards


Sec. 745.61   Scope and applicability.

    (a) This subpart identifies lead-based paint hazards.

[[Page 1238]]

    (b) The standards for lead-based paint hazards apply to target 
housing and child-occupied facilities.
    (c) Nothing in this subpart requires the owner of property(ies) 
subject to these standards to evaluate the property(ies) for the 
presence of lead-based paint hazards or take any action to control 
these conditions if one or more of them is identified.


Sec. 745.63   Definitions.

    The following definitions apply to part 745.
    Arithmetic mean means the algebraic sum of data values divided by 
the number of data values (e.g., the sum of the concentration of lead 
in several soil samples divided by the number of samples).
    Chewable surface means an interior or exterior surface painted with 
lead-based paint that a young child can mouth or chew. A chewable 
surface is the same as an ``accessible surface'' as defined in 42 
U.S.C. 4851b(2)). Hard metal substrates and other materials that cannot 
be dented by the bite of a young child are not considered chewable.
    Common area group means a group of common areas that are similar in 
design, construction, and function. Common area groups include, but are 
not limited to hallways, stairwells, and laundry rooms.
    Concentration means the relative content of a specific substance 
contained within a larger mass, such as the amount of lead (in 
micrograms per gram or parts per million by weight) in a sample of dust 
or soil.
    Deteriorated paint means any interior or exterior paint or other 
coating 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.
    Dripline means the area within 3 feet surrounding the perimeter of 
a building.
    Friction surface means an interior or exterior surface that is 
subject to abrasion or friction, including, but not limited to, certain 
window, floor, and stair surfaces.
    Impact surface means an interior or exterior surface that is 
subject to damage by repeated sudden force such as certain parts of 
door frames.
    Interior window sill means the portion of the horizontal window 
ledge that protrudes into the interior of the room.
    Lead-based paint hazard means hazardous lead-based paint, dust-lead 
hazard or soil-lead hazard as identified in Sec. 745.65.
    Loading means the quantity of a specific substance present per unit 
of surface area, such as the amount of lead in micrograms contained in 
the dust collected from a certain surface area divided by the surface 
area in square feet or square meters.
    Mid-yard means an area of a residential yard approximately midway 
between the dripline of a residential building and the nearest property 
boundary or between the driplines of a residential building and another 
building on the same property.
    Play area means an area of frequent soil contact by children of 
less than 6 years of age as indicated by, but not limited to, such 
factors including the following: the presence of play equipment (e.g., 
sandboxes, swing sets, and sliding boards), toys, or other children's 
possessions, observations of play patterns, or information provided by 
parents, residents, care givers, or property owners.
    Residential building means a building containing one or more 
residential dwellings.
    Room means a separate part of the inside of a building, such as a 
bedroom, living room, dining room, kitchen, bathroom, laundry room, or 
utility room. To be considered a separate room, the room must be 
separated from adjoining rooms by built-in walls or archways that 
extend at least 6 inches from an intersecting wall. Half walls or 
bookcases count as room separators if built-in. Movable or collapsible 
partitions or partitions consisting solely of shelves or cabinets are 
not considered built-in walls. A screened in porch that is used as a 
living area is a room.
    Soil sample means a sample collected in a representative location 
using ASTM E1727, ``Standard Practice for Field Collection of Soil 
Samples for Lead Determination by Atomic Spectrometry Techniques,'' or 
equivalent method.
    Weighted arithmetic mean means the arithmetic mean of sample 
results weighted by the number of subsamples in each sample. Its 
purpose is to give influence to a sample relative to the surface area 
it represents. A single surface sample is comprised of a single 
subsample. A composite sample may contain from two to four subsamples 
of the same area as each other and of each single surface sample in the 
composite. The weighted arithmetic mean is obtained by summing, for all 
samples, the product of the sample's result multiplied by the number of 
subsamples in the sample, and dividing the sum by the total number of 
subsamples contained in all samples. For example, the weighted 
arithmetic mean of a single surface sample containing 60 g/
ft2, a composite sample (three subsamples) containing 100 
g/ft2, and a composite sample (4 subsamples) 
containing 110 g/ft2 is 100 g/
ft2. This result is based on the equation 
[60+(3*100)+(4*110)]/(1+3+4).
    Window trough means, for a typical double-hung window, the portion 
of the exterior window sill between the interior window sill (or stool) 
and the frame of the storm window. If there is no storm window, the 
window trough is the area that receives both the upper and lower window 
sashes when they are both lowered. The window trough is sometimes 
referred to as the window ``well.''
    Wipe sample means a sample collected by wiping a representative 
surface of known area, as determined by ASTM E1728, ``Standard Practice 
for Field Collection of Settled Dust Samples Using Wipe Sampling 
Methods for Lead Determination by Atomic Spectrometry Techniques, or 
equivalent method, with an acceptable wipe material as defined in ASTM 
E 1792, ``Standard Specification for Wipe Sampling Materials for Lead 
in Surface Dust.''


Sec. 745.65   Lead-based paint hazards.

    (a) Paint-lead hazard. A paint-lead hazard is any of the following:
    (1) Any lead-based paint on a friction surface that is subject to 
abrasion and where the lead dust levels on the nearest horizontal 
surface underneath the friction surface (e.g., the window sill, or 
floor) are equal to or greater than the dust-lead hazard levels 
identified in paragraph (b) of this section.
    (2) Any damaged or otherwise deteriorated lead-based paint on an 
impact surface that is caused by impact from a related building 
component (such as a door knob that knocks into a wall or a door that 
knocks against its door frame.
    (3) Any chewable lead-based painted surface on which there is 
evidence of teeth marks.
    (4) 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.
    (b) Dust-lead hazard. A dust-lead hazard is surface dust in a 
residential dwelling or child-occupied facility that contains a mass-
per-area concentration of lead equal to or exceeding 40 g/
ft2 on floors or 250 g/ft2 on interior 
window sills based on wipe samples.
    (c) Soil-lead hazard. A soil-lead hazard is bare soil on 
residential real property or on the property of a child-occupied 
facility that contains total lead equal to or exceeding 400 parts per 
million (g/g) in a play area or average of 1,200 parts per 
million of bare soil in the rest of the yard based on soil samples.

[[Page 1239]]

    (d) Work practice requirements. Applicable certification, occupant 
protection, and clearance requirements and work practice standards are 
found in regulations issued by EPA at 40 CFR part 745, subpart L and in 
regulations issued by the Department of Housing and Urban Development 
(HUD) at 24 CFR part 35, subpart R. The work practice standards in 
those regulations do not apply when treating paint-lead hazards of less 
than:
    (1) Two square feet of deteriorated lead-based paint per room or 
equivalent,
    (2) Twenty square feet of deteriorated paint on the exterior 
building, or
    (3) Ten percent of the total surface area of deteriorated paint on 
an interior or exterior type of component with a small surface area.
    3. In Sec. 745.223, by removing the definitions for ``Lead-
contaminated dust'' and ``Lead-contaminated soil,'' and by revising 
paragraph (1) of the definition of ``Abatement,'' to read as follows:


Sec. 745.223   Definitions.

* * * * *
    Abatement * * *
    (1) The removal of paint and dust, the permanent enclosure or 
encapsulation of lead-based paint, the replacement of painted surfaces 
or fixtures, or the removal or permanent covering of soil, when lead-
based paint hazards are present in such paint, dust or soil; and
* * * * *
    4. In Sec. 745.227, by revising paragraphs (d)(4), (d)(5), (d)(6) 
introductory text, (d)(7), (e)(7)(i), (e)(7)(ii), (e)(8)(ii), 
(e)(8)(v)(A), (e)(8)(v)(B), (e)(8)(vii), by redesignating paragraph 
(d)(8)(ii) as paragraph (d)(8)(iii) and paragraph (h) as paragraph (i), 
and by adding paragraphs (d)(8)(ii), (e)(8)(viii), and (h) to read as 
follows:


Sec. 745.227   Work practice standards for conducting lead-based paint 
activities: target housing and child-occupied facilities.

* * * * *
    (d) * * *
    (4) The following surfaces which are determined, using documented 
methodologies, to have a distinct painting history, shall be tested for 
the presence of lead:
    (i) Each friction surface or impact surface with visibly 
deteriorated paint; and
    (ii) All other surfaces with visibly deteriorated paint.
    (5) In residential dwellings, dust samples (either composite or 
single-surface samples) from the interior window sill(s) and floor 
shall be collected and analyzed for lead concentration in all living 
areas where one or more children, age 6 and under, are most likely to 
come into contact with dust.
    (6) For multi-family dwellings and child-occupied facilities, the 
samples required in paragraph (d)(4) of this section shall be taken. In 
addition, interior window sill and floor dust samples (either composite 
or single-surface samples) shall be collected and analyzed for lead 
concentration in the following locations:
* * * * *
    (7) For child-occupied facilities, interior window sill and floor 
dust samples (either composite or single-surface samples) shall be 
collected and analyzed for lead concentration in each room, hallway or 
stairwell utilized by one or more children, age 6 and under, and in 
other common areas in the child-occupied facility where one or more 
children, age 6 and under, are likely to come into contact with dust.
    (8) * * *
    (ii) The rest of the yard (i.e., non-play areas) where bare soil is 
present.
* * * * *
    (e) * * *
    (7) * * *
    (i) If the soil is removed:
    (A) The soil shall be replaced by soil with a lead concentration as 
close to local background as practicable, but no greater than 400 ppm.
    (B) The soil that is removed shall not be used as top soil at 
another residential property or child-occupied facility.
    (ii) If soil is not removed, the soil shall be permanently covered, 
as defined in Sec. 745.223.
    (8) * * *
    (ii) Following the visual inspection and any post-abatement cleanup 
required by paragraph (e)(8)(i) of this section, clearance sampling for 
lead in dust shall be conducted. Clearance sampling may be conducted by 
employing single-surface sampling or composite sampling techniques.
* * * * *
    (v) * * *
    (A) After conducting an abatement with containment between abated 
and unabated areas, one dust sample shall be taken from one interior 
window sill and from one window trough (if present) and one dust sample 
shall be taken from the floors of each of no less than four rooms, 
hallways or stairwells within the containment area. In addition, one 
dust sample shall be taken from the floor outside the containment area. 
If there are less than four rooms, hallways or stairwells within the 
containment area, then all rooms, hallways or stairwells shall be 
sampled.
    (B) After conducting an abatement with no containment, two dust 
samples shall be taken from each of no less than four rooms, hallways 
or stairwells in the residential dwelling or child-occupied facility. 
One dust sample shall be taken from one interior window sill and window 
trough (if present) and one dust sample shall be taken from the floor 
of each room, hallway or stairwell selected. If there are less than 
four rooms, hallways or stairwells within the residential dwelling or 
child-occupied facility then all rooms, hallways or stairwells shall be 
sampled.
* * * * *
    (vii) The certified inspector or risk assessor shall compare the 
residual lead level (as determined by the laboratory analysis) from 
each single surface dust sample with clearance levels in paragraph 
(e)(8)(viii) of this section for lead in dust on floors, interior 
window sills, and window troughs or from each composite dust sample 
with the applicable clearance levels for lead in dust on floors, 
interior window sills, and window troughs divided by half the number of 
subsamples in the composite sample. If the residual lead level in a 
single surface dust sample equals or exceeds the applicable clearance 
level or if the residual lead level in a composite dust sample equals 
or exceeds the applicable clearance level divided by half the number of 
subsamples in the composite sample, the components represented by the 
failed sample shall be recleaned and retested.
    (viii) The clearance levels for lead in dust are 40 g/
ft2 for floors, 250 g/ft2 for interior 
window sills, and 400 g/ft2 for window troughs.
* * * * *
    (h) Determinations. (1) Lead-based paint is present:
    (i) On any surface that is tested and found to contain lead equal 
to or in excess of 1.0 milligrams per square centimeter or equal to or 
in excess of 0.5% by weight; and
    (ii) On any surface like a surface tested in the same room 
equivalent that has a similar painting history and that is found to be 
lead-based paint.
    (2) A paint-lead hazard is present:
    (i) On any friction surface that is subject to abrasion and where 
the lead dust levels on the nearest horizontal surface underneath the 
friction surface (e.g., the window sill or floor) are equal to or 
greater than the dust hazard levels identified in Sec. 745.227(b);
    (ii) On any chewable lead-based paint surface on which there is 
evidence of teeth marks;
    (iii) Where there is any damaged or otherwise deteriorated lead-
based paint on an impact surface that is cause by

[[Page 1240]]

impact from a related building component (such as a door knob that 
knocks into a wall or a door that knocks against its door frame; and
    (iv) If there 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.
    (3) A dust-lead hazard is present in a residential dwelling or 
child occupied facility:
    (i) In a residential dwelling on floors and interior window sills 
when the weighted arithmetic mean lead loading for all single surface 
or composite samples of floors and interior window sills are equal to 
or greater than 40 g/ft2 for floors and 250 
g/ft2 for interior window sills, respectively;
    (ii) On floors or interior window sills in an unsampled residential 
dwelling in a multi-family dwelling, if a dust-lead hazard is present 
on floors or interior window sills, respectively, in at least one 
sampled residential unit on the property; and
    (iii) On floors or interior window sills in an unsampled common 
area in a multi-family dwelling, if a dust-lead hazard is present on 
floors or interior window sills, respectively, in at least one sampled 
common area in the same common area group on the property.
    (4) A soil-lead hazard is present:
    (i) In a play area when the soil-lead concentration from a 
composite play area sample of bare soil is equal to or greater than 400 
parts per million; or
    (ii) In the rest of the yard when the arithmetic mean lead 
concentration from a composite sample (or arithmetic mean of composite 
samples) of bare soil from the rest of the yard (i.e., non-play areas) 
for each residential building on a property is equal to or greater than 
1,200 parts per million.
    5. In Sec. 745.325, by revising paragraphs (d)(2)(iii)(A) and 
(d)(2)(iii)(B), by redesignating (d)(2)(iv) and (d)(2)(v) as (d)(2)(v) 
and (d)(2)(vi), respectively, and by adding paragraphs (d)(2)(iii)(C), 
(d)(2)(iii)(D), (d)(2)(iv), and (e), to read as follows:


Sec. 745.325   Lead-based paint activities: State and Tribal program 
requirements.

* * * * *
    (d) * * *
    (2) * * *
    (iii) * * *
    (A) An assessment, including a visual inspection, of the physical 
characteristics of the residential dwelling or child-occupied facility;
    (B) Environmental sampling for lead in paint, dust, and soil;
    (C) Environmental sampling requirements for lead in paint, dust, 
and soil that allow for comparison to the standards for lead-based 
paint hazards established or revised by the State or Indian Tribe 
pursuant to paragraph (e) of this section; and
    (D) A determination of the presence of lead-based paint hazards 
made by comparing the results of visual inspection and environmental 
sampling to the standards for lead-based paint hazards established or 
revised by the State or Indian Tribe pursuant to paragraph (e) of this 
section.
    (iv) The program elements required in paragraph (d)(2)(iii)(C) and 
(d)(2)(iii)(D) of this section shall be adopted in accordance with the 
schedule for the demonstration required in paragraph (e) of this 
section.
* * * * *
    (e) The State or Indian Tribe must demonstrate that it has 
standards for identifying lead-based paint hazards and clearance 
standards for dust, that are at least as protective as the standards in 
Sec. 745.227 as amended on February 5, 2001. A State or Indian Tribe 
with such a section 402 program approved before February 5, 2003 shall 
make this demonstration no later than the first report submitted 
pursuant to Sec. 745.324(h) on or after February 5, 2003. A State or 
Indian Tribe with such a program submitted but not approved before 
February 5, 2003 may make this demonstration by amending its 
application or in its first report submitted pursuant to 
Sec. 745.324(h). A State or Indian Tribe submitting its program on or 
after February 5, 2003 shall make this demonstration in its 
application.

[FR Doc. 01-84 Filed 1-4-01; 8:45 am]
BILLING CODE 6560-50-S