[Federal Register Volume 86, Number 4 (Thursday, January 7, 2021)]
[Rules and Regulations]
[Pages 983-994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28565]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[EPA-HQ-OPPT-2020-0063; FRL-10018-61]
RIN 2070-AK50
Review of Dust-Lead Post Abatement Clearance Levels
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Reducing childhood lead exposure is a priority for the
Environmental Protection Agency (EPA). As part of EPA's efforts to
reduce childhood lead exposure, and in coordination with the
President's Task Force on Environmental Health Risks and Safety Risks
to Children, EPA reevaluated the 2001 dust-lead clearance levels
(DLCL). Clearance levels indicate the amount of lead in dust on a
surface following the completion of an abatement activity. Surface dust
is collected via dust wipe samples that are sent to a laboratory for
analysis to determine whether clearance has been achieved. The post-
abatement dust-lead levels are evaluated against, and must be below,
the applicable clearance levels. The DLCL have not changed since they
were issued in 2001. EPA is finalizing its proposal to lower the DLCL
from 40 micrograms of per square foot ([mu]g/ft\2\) to 10 [mu]g/ft\2\
for floors, and from 250 [mu]g/ft\2\ to 100 [mu]g/ft\2\ for window
sills.
DATES: This final rule is effective March 8, 2021.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPPT-2020-0063, is available at
http://www.regulations.gov or at the Office of Pollution Prevention and
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW, Washington, DC.
Please note that due to the public health emergency, the EPA Docket
Center (EPA/DC) and Reading Room was closed to public visitors on March
31, 2020. Our EPA/DC staff will continue to provide customer service
via email, phone, and webform. For further information on EPA/DC
services, docket contact information and the current status of the EPA/
DC and Reading Room, please visit https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information contact: Claire Brisse, Existing
Chemicals Risk Management Division, Office of Pollution Prevention and
Toxics (Mailcode 7404T), Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number:
(202) 564-9004; email address: [email protected]. These phone
numbers may also be reached by individuals who are deaf or hard of
hearing, or who have speech disabilities, through the Federal Relay
Service's teletype service at (800) 877-8339.
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this action if you conduct Lead-
Based Paint (LBP) activities in accordance with 40 CFR 745.227; if you
operate a training program required to be accredited under 40 CFR
745.225; if you are a firm or individual who must be certified to
conduct LBP activities in accordance with 40 CFR 745.226; or if you
conduct rehabilitations or maintenance activities in most pre-1978
housing that is covered by a Federal housing assistance program in
accordance with 24 CFR part 35. You may also be affected by this action
if you operate a laboratory that is recognized by EPA's National Lead
Laboratory Accreditation Program (NLLAP) in accordance with 40 CFR
745.90, 745.223, 745.227, 745.327. You may also be affected by this
action, in accordance with 40 CFR 745.107 and 24 CFR 35.88, as the
seller or lessor of target housing, which is most pre-1978 housing. See
40 CFR 745.103 and 24 CFR 35.86. The following list of North American
Industrial Classification System (NAICS) codes is not intended to be
exhaustive, but rather provides a guide to help readers determine
whether
[[Page 984]]
this document applies to them. Potentially affected entities may
include:
[ssquf] Real estate (NAICS code 531), e.g., lessors of residential
buildings and dwellings, residential property managers.
[ssquf] Other technical and trade schools (NAICS code 611519),
e.g., training providers.
[ssquf] Engineering services (NAICS code 541330) and building
inspection services (NAICS code 541350), e.g., dust sampling
technicians.
[ssquf] Lead abatement professionals (NAICS code 562910), e.g.,
firms and supervisors engaged in LBP activities.
[ssquf] Testing laboratories (NAICS code 541380) that analyze dust
wipe samples for lead.
[ssquf] Federal agencies that own residential property (NAICS code
92511, 92811).
[ssquf] Property owners, and property owners that receive
assistance through Federal housing programs (NAICS code 531110,
531311).
B. What is the Agency's authority for taking this action?
EPA is finalizing this rule under sections 401 and 402 of the Toxic
Substances Control Act (TSCA), 15 U.S.C. 2601 et seq., as created by
Title X of the Housing and Community Development Act of 1992 (also
known as the ``Residential Lead-Based Paint Hazard Reduction Act of
1992'' or ``Title X'') (Pub. L. 102-550) (Ref. 1).
TSCA section 402 (15 U.S.C. 2682) directs EPA to regulate LBP
activities, which include risk assessments, inspections, and
abatements. TSCA section 401 (15 U.S.C. 2681) defines abatements as
``measures designed to permanently eliminate lead-based paint hazards''
and the term includes ``all . . . cleanup . . . and post[-]abatement
clearance testing activities'' (15 U.S.C. 2681(1)). EPA is further
directed, in promulgating the regulations, to ``tak[e] into account
reliability, effectiveness, and safety'' (15 U.S.C. 2682(a)(1)).
C. What action is the Agency taking?
Clearance levels are defined as values that indicate the amount of
lead in dust on a surface following completion of an abatement activity
(40 CFR 745.223). Surface dust is collected via dust wipe samples that
are sent to a laboratory for analysis. The post-abatement dust-lead
levels must be below the clearance levels, which are the standards used
to evaluate the effectiveness of post-abatement cleanings. If the
levels are not below the clearance levels, the components (i.e. floors,
window sills, etc.) represented by the failed sample(s) shall be
recleaned and retested. In 2001, EPA originally established DLCL of 40
[mu]g/ft\2\ for floors, 250 [mu]g/ft\2\ for window sills and 400 [mu]g/
ft\2\ for window troughs in a final rule entitled, ``Identification of
Dangerous Levels of Lead.'' See 66 FR 1206, January 5, 2001 (FRL-6763-
5), also known as the 2001 LBP Hazards Rule (Ref. 2).
On June 24, 2020, EPA proposed to revise the DLCL for window sills
and floors. EPA is now finalizing its proposal to lower the DLCL set by
the 2001 LBP Hazards Rule, from 40 [mu]g/ft\2\ to 10 [mu]g/ft\2\ for
floor dust and from 250 [mu]g/ft\2\ to 100 [mu]g/ft\2\ for window sill
dust. As explained elsewhere in this preamble, EPA is not revising the
DLCL for window troughs at this time. The revised DLCL of 10 [mu]g/
ft\2\ on floors and 100 [mu]g/ft\2\ on window sills will not apply
retroactively; that is, this final rule will not impose retroactive
requirements on regulated entities that have previously performed post-
abatement clearance testing using the original DLCL of 40 [mu]g/ft\2\
on floors or 250 [mu]g/ft\2\ on window sills. While EPA's dust-lead
hazard standards (DLHS) do not compel property owners to evaluate their
property for hazards or take control actions (40 CFR 745.61(c)), if
someone opts to perform a lead-based paint activity such as an
abatement, then EPA's regulations set requirements for doing so (40 CFR
745.220(d)). This final rule requires individuals and firms who perform
an abatement to achieve values below the DLCL of 10 [mu]g/ft\2\ on
floors and 100 [mu]g/ft\2\ on window sills at the end of the abatement,
which the 2019 rule updating the DLHS (``Review of the Dust-Lead Hazard
Standards and the Definition of Lead-Based Paint,'' (84 FR 32632, July
9, 2019) (FRL-9995-49), also known as the 2019 DLHS Rule) did not
require under EPA's regulations (Ref. 3).
D. Why is the Agency taking this action?
Reducing childhood lead exposure is an EPA priority. EPA continues
to collaborate with its federal partners to reduce lead exposures and,
in so doing, to explore ways to strengthen its relationships and
partnerships with states, tribes, and localities. In December 2018, the
President's Task Force on Environmental Health Risks and Safety Risks
to Children released the Federal Action Plan to Reduce Childhood Lead
Exposures and Associated Health Impacts (Lead Action Plan) (Ref. 4) to
enhance the Federal Government's efforts to identify and reduce lead
exposure while ensuring children impacted by such exposure are getting
the support and care they need to prevent or mitigate any associated
health effects. The Lead Action Plan is helping Federal agencies to
work strategically and collaboratively to reduce exposure to lead and
improve children's health. This final rule, which revises the DLCL, is
an action that EPA committed to undertake in the Lead Action Plan (Ref.
5).
In the 2001 LBP Hazards Rule, EPA first established the DLHS that
identify dust-lead hazards and the DLCL used to evaluate the
effectiveness of cleaning following an abatement. Abatements are
designed to permanently eliminate LBP hazards including dust-lead
hazards.
In 2019, EPA reevaluated the DLHS (Ref. 3). Based on that
revaluation, the final rule revised the DLHS from 40 [mu]g/ft\2\ and
250 [mu]g/ft\2\ to 10 [mu]g/ft\2\ and 100 [mu]g/ft\2\ on floors and
window sills, respectively. EPA based that decision on the best
available science, the Agency's review of public comments received on
the proposal for that rule, and consideration of the potential for risk
reduction, including whether such actions were achievable. At that
time, EPA focused its rulemaking on the DLHS and the definition of LBP,
which were the two actions that EPA had agreed to undertake in response
to a 2009 citizen petition (Ref. 6). In that rulemaking, EPA did not
propose to change DLCL in 40 CFR part 745, subpart L.
However, EPA recognizes the important relationship between the DLHS
and DLCL: The DLHS are used to identify dust-lead hazards and the DLCL
are used to demonstrate that specific abatement activities have
effectively abated those hazards. The purpose of this final rule is to
update the DLCL so that attaining these levels demonstrates elimination
of dust-lead hazards under the revised 2019 DLHS. Based on the Agency's
careful review of the public comments received on the proposal, EPA is
finalizing its proposal to revise the DLCL to 10 [mu]g/ft\2\ for floors
and to 100 [mu]g/ft\2\ for window sills. EPA finds that attaining these
DLCL abates the dust-lead hazards identified under the 2019 standards,
taking into account reliability, effectiveness, and safety. EPA has not
been persuaded that elimination of the dust-lead hazards (15 U.S.C.
2681(1)) while accounting for reliability, effectiveness, and safety
(15 U.S.C. 2682(a)(1)) justifies selecting different clearance levels.
Although EPA is not persuaded to deviate from 10 [mu]g/ft\2\ for floors
and 100 [mu]g/ft\2\ for window sills for the DLCL, the Agency did
consider whether potential reliability, effectiveness, or safety
factors supported different clearance levels. In particular, EPA
considered the achievability of 10 [mu]g/ft\2\ for floors and 100
[mu]g/ft\2\ for
[[Page 985]]
window sills in relation to their application in lead risk reduction
programs, how the lower dust-lead loadings can be reliably detected by
laboratories, the effectiveness of these levels at eliminating dust-
lead hazards, and consistency with the revised 2019 standards and
across the Federal Government.
EPA did not propose to change the post-abatement clearance level in
40 CFR 745, subpart L for window troughs, and is not modifying the
level at this time. Because the revised 2019 standards updated the DLHS
for floors and window sills and because EPA wanted to act as
expeditiously as possible to update the DLCL in recognition of the
updated DLHS for floors and window sills, EPA believes it has
reasonably focused this rulemaking to update the DLCL so that attaining
these levels demonstrates elimination of dust-lead hazards under the
revised 2019 standards. As a result, and after careful review of the
public comments, EPA is finalizing its proposal to only revise the DLCL
for floors and window sills at this time.
E. What are the estimated incremental impacts of this action?
EPA has prepared an Economic Analysis of the potential incremental
impacts associated with this rulemaking (Ref. 7). The analysis is
focused on a subset of the target housing (i.e., most pre-1978 housing)
and child-occupied facilities where abatement activities are subject to
this rule. The analysis, which is available in the docket, estimates
incremental costs and benefits for abatements where a dust-lead level
is between the original DLCL (40 [mu]g/ft\2\ for floors and 250 [mu]g/
ft\2\ for window sills) and alternate levels, including the revised
DLCL of 10 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ for window sills.
Based on data from the U.S. Department of Housing and Urban Development
(HUD), EPA estimates that the vast majority of floors and window sills
are already clearing at levels below the revised DLCL of 10 [mu]g/ft\2\
and 100 [mu]g/ft\2\ after the completion of an abatement.
EPA identified in the proposal that there was uncertainty about
whether some state and local regulations already use the same levels in
EPA's DLHS as DLCL, and about whether some abatement contractors
voluntarily conduct additional cleaning to ensure that the dust-lead
levels fall below the DLHS following an abatement. To the extent that
these situations occur, then the costs and benefits of meeting the DLCL
estimated in the Economic Analysis would be attributable to the 2019
DLHS Rule and not to this regulation. For the final rule Economic
Analysis, EPA contacted states with authorized lead programs and found
that several have already revised or are in the process of revising
their regulations to adopt clearance levels of 10 [mu]g/ft\2\ on floors
and 100 [mu]g/ft\2\ on window sills. In addition, one locality has
adopted clearance levels below the original federal levels of 40 [mu]g/
ft\2\ on floors and 250 [mu]g/ft\2\ on window sills. Abatements in
these jurisdictions will clear below the levels of 10 [mu]g/ft\2\ on
floors and 100 [mu]g/ft\2\ on window sills even without revisions to
the federal clearance levels. As a result, EPA has narrowed the range
of estimated benefits and costs in the Economic Analysis of the final
rule by including abatements in these jurisdictions in the baseline.
EPA estimates that 57% to 61% of the abatements otherwise affected by
the clearance levels in this rule will take place in these
jurisdictions. As a result, the Economic Analysis does not account for
the benefits and costs of these events. The information on state
regulations and its use in the final rule analysis is described in
sections 2.3 and 3.1.3(C) of the Economic Analysis. EPA did not obtain
any information indicating the extent to which abatement contractors in
other states and localities (where the clearance levels are still 40
[mu]g/ft\2\ on floors and 250 [mu]g/ft\2\ on window sills) are
voluntarily using 10 [mu]g/ft\2\ on floors and 100 [mu]g/ft\2\ on
window sills as clearance levels. Instead, section 8.3 of the Economic
Analysis presents sensitivity analyses reflecting different assumptions
about abatement contractor actions in the baseline. In order to expand
the range of possible estimates, EPA's final estimates of the
incremental impacts of this action include a lower bound assumption
that half of abatement contractors are voluntarily applying the hazard
standards as clearance levels.
As in the Economic Analysis for the 2019 DLHS Rule, there is also
uncertainty about the blood lead levels at which investigative actions
and lead hazard reduction activities might be taken and the exact
nature of these activities. Most states set a blood lead level at which
an environmental investigation is recommended or required. Based on
guidance posted on environmental and public health department websites
for each state, these blood lead action levels range from 5 micrograms
per deciliter ([mu]g/dL) to 25 [mu]g/dL. In eight states (AK, IN, MD,
ME, MI, NE, OR, and PA) the action level for an environmental
investigation is a blood lead level of 5 [mu]g/dL. Fourteen states (CA,
GA, IL, KS, LA, NC, NH, NJ, NV, OH, TX, VT, WA, and WV) and the
District of Columbia use an action level of 10 [mu]g/dL. Nineteen
states (AL, AZ, CO, DE, FL, HI, IA, ID, KY, MN, MO, MS, NM, NY, RI, SC,
UT, VA, and WI) use an action level of 15 [mu]g/dL. Four states (CT,
MA, OK, and TN) use an action level of 20 [mu]g/dL or above. Five
states (AR, MT, ND, SD, and WY) have no policy recommendation or
requirement for the blood lead level at which an environmental
investigation should be conducted. The differences between states may
reflect the prevalence of lead hazards in each state and their relative
prioritization of lead hazards and other funding needs.
EPA's analysis includes two scenarios for the number of instances
where clearance testing is performed that will be affected by the rule:
(1) Where dust-lead loadings are tested because a child's blood lead
level equals or exceeds 5 [mu]g/dL (the current Centers for Disease
Control and Prevention (CDC) blood lead reference value) (Ref. 8), and
a loading is at or above the DLHS; and (2) where dust-lead loadings are
tested because a child's blood lead level equals or exceeds the action
level set by the state the child lives in, and a loading is at or above
the DLHS.
Consequently, the Economic Analysis includes a range for the number
of abatement events affected by this rule revising the clearance
levels. The upper end of the range is approximately 11,000 events,
which assumes that when a child's blood lead level equals or exceeds 5
[mu]g/dL an environmental investigation occurs that includes testing
the dust-lead loadings in their home. The low end of the range is
approximately 1,200 events, which assumes that dust-lead loading
testing occurs when a child's blood lead level equals or exceeds the
state blood lead level action level. The benefit and cost estimates are
highly sensitive to this range. The following is a brief outline of the
estimated incremental impacts of this rulemaking.
1. Benefits
Incremental actions to meet the revised DLCL of 10 [mu]g/ft\2\ for
floors and 100 [mu]g/ft\2\ for window sills after abatements where a
baseline post-intervention loading is between the original DLCL of 40
[mu]g/ft\2\ for floors and 250 [mu]g/ft\2\ for window sills and the
revised DLCL would reduce exposure to lead, resulting in benefits from
avoided adverse health effects. In the Economic Analysis of this rule,
EPA quantified the benefits of reduced lead exposure to children from
avoided Intelligence Quotient (IQ) loss as an indicator of
[[Page 986]]
improved cognitive function and, hence, lifetime earnings. For the
subset of adverse health effects where these effects were quantified,
the estimated annualized benefits are <=$13 million to >=$202 million
per year using a 3% discount rate, and <=$3 million to >=$44 million
per year using a 7% discount rate, with the range representing the
uncertainties about the blood lead levels at which an environmental
investigation will be triggered and about the relationship between
changes in blood lead levels and IQ. The ``<='' and ``>='' symbols are
intended to convey uncertainty in the results. They do not mean that
the results are unbounded (i.e., that the true values could be zero on
the lower end or infinity on the higher end). There are additional
unquantified benefits due to other avoided adverse health or behavioral
effects in children, including attention-related behavioral problems,
greater incidence of problem behaviors, decreased cognitive
performance, reduced post-natal growth, delayed puberty, decreased
hearing, and decreased kidney function (Ref. 9).
2. Costs
This rule is estimated to result in costs of <=$2 million to >=$14
million per year using either a 3% or a 7% discount rate. The ``<=''
and ``>='' symbols are intended to convey uncertainty in the results.
They do not mean that the results are unbounded (i.e., that the true
values could be zero on the lower end or infinity on the higher end).
In the events affected by this rule, incremental costs are incurred for
specialized cleaning used to reduce dust-lead loadings to below the
clearance levels and for retesting lead levels. In some instances,
floors will also be sealed, overlaid or replaced, or window sills will
be sealed or repainted.
3. Small Entity Impacts
EPA estimates that this rule may impact <=1,240 to >=10,215 small
abatement firms; <=1,025 to >=8,977 may have cost impacts estimated at
less than 1% of revenues, <=113 to >=990 may have impacts estimated
between 1% and 3%, and <=28 to >=240 may have impacts estimated at
greater than 3% of revenues. The ``<='' and ``>='' symbols are intended
to convey uncertainty in the results. They do not mean that the results
are unbounded (i.e., that the true values could be zero on the lower
end or infinity on the higher end). EPA's analysis assumes that in all
cases the costs are borne entirely by the lead paint abatement firm (as
opposed to being passed through to the property owner). However, it is
more likely that some, or perhaps even most, of these costs will be
passed on to the property owners.
4. Environmental Justice
This rule would increase the level of environmental protection for
all affected populations without having any disproportionately high and
adverse human health or environmental effects on any population,
including any minority or low-income population.
5. Effects on State, Local, and Tribal Governments
The rule would not have any significant or unique effects on small
governments, or federalism or tribal implications.
F. Children's Environmental Health
Lead exposure has the potential to impact individuals of all ages,
but it is especially harmful to young children because the developing
brain can be particularly sensitive to environmental contaminants
(Refs. 10, 11). Exposure to lead is associated with increased risk of a
number of adverse health or behavioral effects in children, including
decreased cognitive performance, greater incidence of problem
behaviors, and increased diagnoses of attention-related behavioral
problems (Ref. 9). Furthermore, floor dust in homes and child-care
facilities is a significant route of exposure for young children given
their mouthing and crawling behavior and proximity to the floor.
Therefore, the environmental health or safety risk addressed by this
action may have a disproportionate effect on children (Ref. 12).
Consistent with the Agency's Policy on Evaluating Health Risks to
Children (Ref. 13), EPA has evaluated the health effects in children of
decreased lead exposure from the lowering of the DLCL. EPA prepared a
Technical Support Document for this rulemaking, which models dust-lead
exposures and estimates both blood lead levels and associated impacts
on IQ at the revised DLCL of 10 [mu]g/ft\2\ and 100 [mu]g/ft\2\ versus
the original DLCL of 40 [mu]g/ft\2\ and 250 [mu]g/ft\2\ on floors and
window sills, respectively (Ref. 12). While no safe level of lead in
blood has been identified (Ref. 4), the reductions in children's blood-
lead levels resulting from this rule are expected to reduce the risk of
adverse cognitive and developmental effects in children. The Technical
Support Document shows that health risks to young children decrease
with decreasing dust-lead levels.
II. Background
A. Health Effects
Lead exposure has the potential to impact individuals of all ages,
but it is especially harmful to young children because the developing
brain can be particularly sensitive to environmental contaminants (Ref.
10, 11). Ingestion of lead-contaminated dust is a major contributor to
blood lead levels in children, particularly those who reside in homes
built prior to 1978 (Ref. 14, 15). Infants and young children can be
more highly exposed to lead through floor dust at home and in child-
care facilities because they often put their hands and other objects
that can have lead from dust on them into their mouths (Ref. 11).
The best available science informs EPA's understanding of the
relationships between exposures to dust-lead loadings, blood lead
levels, and adverse human health effects. These relationships are
summarized in the Integrated Science Assessment for Lead (``Lead ISA'')
(Ref. 16), which EPA released in June 2013, and the National Toxicology
Program (NTP) Monograph on the Health Effects of Low-Level Lead, which
was released by the Department of Health and Human Services in June
2012 (``NTP Monograph'') (Ref. 9).The Lead ISA is a synthesis and
evaluation of scientific information on the health and environmental
effects of lead, including cognitive function decrements in children
(Ref. 16).
The NTP, in 2012, completed an evaluation of existing scientific
literature to summarize the scientific evidence regarding potential
health effects associated with low-level lead exposure as indicated by
blood lead levels less than 10 [mu]g/dL. The evaluation specifically
focused on the life stage (prenatal, childhood, adulthood) associated
with these potential health effects, and on epidemiological evidence at
blood lead levels less than 10 [mu]g/dL, because health effects at
higher blood lead levels are well-established. The NTP concluded that
there is sufficient evidence for adverse health effects in children and
adults at blood lead levels less than 10 [mu]g/dL, and less than 5
[mu]g/dL as well. The NTP concluded that there is sufficient evidence
that blood lead levels less than 10 [mu]g/dL are associated with
delayed puberty, decreased hearing, and reduced post-natal growth. In
children, there is sufficient evidence that blood lead levels less than
5 [mu]g/dL are associated with increased diagnoses of attention-related
behavioral problems, greater incidence of problem behaviors, and
decreased cognitive
[[Page 987]]
performance. There is limited evidence that blood lead levels less than
5 [mu]g/dL are associated with delayed puberty and decreased kidney
function in children 12 years of age and older (Ref. 9).
For further information regarding lead and its health effects, and
federal actions taken to eliminate LBP hazards in housing, see the Lead
Action Plan, the Technical Support Document for this rulemaking and the
background section of the Lead Renovation, Repair and Painting Rule,
issued on April 22, 2008 (also referred to as the ``RRP Rule,'' (73 FR
21692, April 22, 2008) (FRL-8355-7), codified at 40 CFR part 745,
subpart E) (Ref. 4, 12, 17).
B. Federal Actions To Reduce Lead Exposures
In 1992, Congress enacted Title X of the Housing and Community
Development Act (also known as the Residential Lead-Based Paint Hazard
Reduction Act of 1992 or ``Title X'') (Ref. 1) in an effort to
eliminate LBP hazards. Section 1018 of Title X required EPA and HUD to
promulgate regulations for disclosure of any known LBP or any known LBP
hazards in target housing offered for sale or lease (known as the
``Disclosure Rule'') (Ref. 18). (``Target housing'' is defined in
section 401(17) of TSCA, 15 U.S.C. 2681(17).) On March 6, 1996, the
Disclosure Rule was codified at 40 CFR part 745, subpart F, for EPA,
and 24 CFR part 35, subpart A, for HUD. It requires information
disclosure activities before a purchaser or lessee is obligated under a
contract to purchase or lease target housing.
TSCA section 402(a) directs EPA to promulgate regulations covering
LBP activities to ensure persons performing these activities are
properly trained, that training programs are accredited, and that
contractors performing these activities are certified. On August 29,
1996, EPA published final regulations under TSCA section 402(a) that
govern LBP inspections, risk assessments, and abatements in target
housing and child occupied facilities (COFs) (also referred to as the
``LBP Activities Rule,'' codified at 40 CFR part 745, subpart L) (Ref.
19). The definition of ``child-occupied facility'' is codified at 40
CFR 745.223 for purposes of LBP activities. Regulations promulgated
under TSCA section 402(a) contain standards for performing LBP
activities, while taking into account reliability, effectiveness, and
safety.
TSCA section 402(c)(3) directs EPA to promulgate regulations
covering renovation or remodeling activities in target housing, public
buildings constructed before 1978, and commercial buildings that create
LBP hazards. EPA issued the final RRP Rule under TSCA section 402(c)(3)
on April 22, 2008 (Ref. 17).
[ssquf] TSCA section 403, 15 U.S.C. 2683, gives EPA a related
authority to carry out responsibilities for addressing LBP hazards
under the Disclosure and LBP Activities Rules. TSCA section 403
requires EPA to promulgate regulations that ``identify . . . lead-based
paint hazards, lead-contaminated dust, and lead-contaminated soil'' for
purposes of TSCA Title IV and the Residential Lead-Based Paint Hazard
Reduction Act of 1992. LBP hazards, under TSCA section 401, are defined
as conditions of LBP and lead-contaminated dust and soil that ``would
result'' in adverse human health effects (15 U.S.C. 2681(10)). TSCA
section 401 defines lead-contaminated dust as ``surface dust in
residential dwellings'' that contains lead in excess of levels
determined ``to pose a threat of adverse health effects'' (15 U.S.C.
2681(11)). The 2001 LBP Hazards Rule established the DLHS to identify
conditions of lead-contaminated dust that would result in adverse human
health effects. These DLHS were revised in the 2019 DLHS Rule and are
used to identify dust-lead hazards.
The 2001 LBP Hazards Rule also established the DLCL (also referred
to as ``clearance levels'' and sometimes referred to elsewhere as
``clearance standards'') under TSCA section 402(a). These clearance
levels are used to evaluate the effectiveness of cleaning following an
abatement. As defined in TSCA section 401 abatements are designed to
permanently eliminate LBP hazards, including dust-lead hazards. For
purposes of the DLCL, post-clearance dust-lead loadings below the DLHS
indicate permanent elimination of dust-lead hazards.
Pursuant to TSCA section 404, 15 U.S.C. 2684, and EPA's regulations
at 40 CFR part 745, subpart Q, interested states, territories, and
federally recognized tribes may apply for and receive authorization to
administer their own LBP Activities and RRP programs. EPA's regulations
are intended to reduce exposures, and the LBP Activities regulations in
particular are intended to identify and mitigate hazardous levels of
lead. Authorized programs must be ``at least as protective of human
health and the environment as the corresponding federal program,'' and
must provide for ``adequate enforcement.'' See 40 CFR 745.324(e)(2).
The 2019 DLHS Rule revised the regulation to improve the process for
states, federally recognized tribes, and territories with authorized
LBP Activities programs to demonstrate that their programs meet the
requirements of 40 CFR 745.325 (by submitting a report pursuant to 40
CFR 745.324(h) with such demonstration within two years of the
effective date of a revision).
HUD's Lead Safe Housing Rule (LSHR) is codified in 24 CFR part 35,
subparts B through R. The LSHR implements sections 1012 and 1013 of
Title X. Under Title X, HUD has specific authority to control LBP and
LBP hazards in federally-assisted target housing (including COFs that
are part of an assisted target housing property covered by the LSHR,
because they are part of the common area of the property). The LSHR
aims in part to ensure that federally-owned or federally-assisted
target housing is free of LBP hazards (Ref. 20). Under the LSHR, when a
child under age six with an elevated blood lead level residing in
certain categories of assisted target housing is identified, the
``designated party'' and/or the housing owner shall undertake certain
actions.
C. Applicability and Uses of the DLCL
The DLCL finalized in this regulation support the LBP Activities
program, and apply to target housing (i.e., most pre-1978 housing) and
COFs (i.e., pre-1978 non-residential properties where children six
years of age or under spend a significant amount of time, such as child
care centers and kindergartens). Apart from COFs, no other public and
commercial buildings are covered by this rule. For further background
on the types of buildings to which the LBP Activities program apply,
refer to the proposed and final 2001 LBP Hazards Rule (Ref. 2, 21).
The DLCL are incorporated into the post-abatement work practices
outlined in the LBP Activities Rule (40 CFR 745.227). LBP Activities
regulations apply to inspections, risk assessments, project design, and
abatement activities. Pre-abatement dust-lead testing occurs during a
risk assessment, often initiated to comply with HUD's LSHR or in
response to discovery of a child with a blood lead level that equals or
exceeds the current CDC blood lead reference value (Ref. 9), or the
action level set by the state the child lives in. The objective of a
risk assessment is to determine, and then report, the existence,
nature, severity, and location of LBP hazards in residential dwellings
and COFs through an on-site investigation. During a risk assessment, a
risk assessor collects environmental samples that include dust wipe
samples from floors and window sills that are sent to an NLLAP-
recognized laboratory for analysis. NLLAP is an EPA program that
defines the minimum requirements and abilities that a paint chips,
dust, or soil testing
[[Page 988]]
laboratory must meet to attain EPA recognition as an accredited lead
testing laboratory. Once the samples are analyzed by an NLLAP-
recognized laboratory, the risk assessor compares the results of the
dust wipe samples against the DLHS. If the dust-lead loadings from the
samples are at or above the applicable DLHS, indicating LBP hazards are
present, the risk assessor will identify acceptable options for
controlling the hazards in the respective property, which may include
abatements and/or interim controls. TSCA section 401 defines abatements
as, ``measures designed to permanently eliminate lead-based paint
hazards,'' (15 U.S.C. 2681(1)), while interim controls are ``designed
to temporarily reduce human exposure or likely exposure to lead-based
paint hazards,'' (40 CFR 745.83 and 745.223). These options should
allow the property owner to make an informed decision about what
actions should be taken to protect the health of current and future
residents. Risk assessments can be performed only by certified risk
assessors.
The DLCL are used to evaluate the effectiveness of a cleaning
following an abatement. After an abatement is complete, a risk assessor
or inspector determines whether there are any ``visible amounts of
dust, debris or residue,'' which will need to be removed before
clearance sampling takes place (40 CFR 745.227(e)(8)). Once the area is
free of visible dust, debris and residue, and one hour or more after
final post-abatement cleaning ceases, clearance sampling for dust-lead
(via dust wipe samples) can take place and will be conducted ``using
documented methodologies that incorporate adequate quality control
procedures'' (40 CFR 745.227(e)(8)). Only a properly trained and
certified risk assessor or inspector can conduct clearance sampling. A
NLLAP-recognized laboratory must analyze the dust wipe samples and a
risk assessor or inspector must compare the results from window sills
and floors (and window troughs) to the appropriate DLCL. Every sample
must test below the corresponding DLCL, and if a single sample is equal
to or greater than the corresponding DLCL, then the abatement fails
clearance and the components represented by the sample must be
recleaned and retested (40 CFR 745.227(e)(8)). After the dust wipe
samples show dust-lead loadings below the DLCL, an abatement report is
prepared, copies of any reports required under the LBP Activities Rule
are provided to the building owner (and to potential lessees and
purchasers under the LBP Disclosure Rule by those building owners or
their agents), and all required records are retained by the abatement
firm or by the individuals who developed each report.
Achieving the DLCL after an abatement does not mean that the home
is free from all exposure to lead, since exposures are dependent on
many factors. For instance, the physical condition of a property may
change over time, resulting in an increased exposure. EPA will continue
coordinating with other Federal agencies to encourage best practices
for occupants of post-abatement properties to conduct ongoing
maintenance that will help prevent dust-lead from being reintroduced on
previously cleared surfaces.
D. Public Comments Summary
The proposed rule provided a 60-day public comment period, ending
on August 24, 2020. EPA received public comments from 28 commenters
during the comment period. Comments were received from private
citizens, state/local governments (including state health departments),
potentially affected lead-based paint businesses, non-governmental
organizations, environmental and public health advocacy groups and an
individual from an academic institution. Several commenters, including
individuals, non-governmental organizations, and state/local
governments supported the DLCL as proposed at 10 ug/ft\2\ for floors
and 100 ug/ft\2\ for window sills. A number of commenters requested
that EPA promulgate DLCL lower than the proposed levels of 10 [mu]g/
ft\2\ for floors and 100 [mu]g/ft\2\ for window sills. Some commenters
specifically suggested that EPA should revise the DLCL for window sills
to 40 [mu]g/ft\2\ or lower and/or 5 [mu]g/ft\2\ for floors. One
commenter explained that within the considered options for the
proposal, EPA should have analyzed a floor level lower than 10
[micro]g/ft\2\ and that the Agency must consider a lower level for
floors before finalizing the rule. Other commenters expressed concern
over lower DLCL and that contractors may not be able to meet lower
clearance requirements without additional work in some cases, which may
make it difficult to attract qualified contractors. A few commenters
discussed the discrepancy between the revised 2019 DLHS and the
original DLCL from 2001 and noted that due to the inconsistency an
abatement could be cleared at levels higher than the DLHS, which is
confusing and less protective. In this preamble, EPA has responded to
the major comments relevant to this final rule. In addition, the more
comprehensive version of EPA's response to comments related to this
final action can be found in the Response to Comments document (Ref.
22).
To the extent that commenters discussed issues with the DLHS in
their public comments, EPA has previously promulgated the DLHS in the
recent 2019 rulemaking and notes that within this DLCL rule, EPA is not
re-opening or reconsidering the recently revised DLHS.
III. Final Rule
The purpose of this rulemaking is to update the DLCL so that
attaining these clearance levels demonstrates elimination of dust-lead
hazards under the revised 2019 standards. EPA carefully considered all
the public comments related to the proposed rule and is finalizing its
proposal to lower the DLCL for floors from 40 [mu]g/ft\2\ to 10 [mu]g/
ft\2\ and to lower the DLCL for window sills from 250 [mu]g/ft\2\ to
100 [mu]g/ft\2\. As previously mentioned, because there is no DLHS for
window troughs, EPA is not revising the DLCL for window troughs at this
time.
A. Approach for Reviewing and Selecting the Final Dust-Lead Clearance
Levels
As EPA explained in the LBP Activities Rule (Ref. 19) (61 FR 45778,
45779), the work practice standards covered by those regulations are
intended to ensure that abatements are conducted reliably, effectively,
and safely. While considering those three criteria, the 2001 LBP
Hazards Rule modified the work practice standards to include dust-lead
clearance levels, which ``are used to evaluate the effectiveness of
cleaning following an abatement.'' (Ref. 2) (66 FR 1206, 1211).
Abatements are designed to permanently eliminate LBP hazards including
dust-lead hazards and the definition of an abatement includes cleanup
and post-abatement clearance testing activities (40 CFR 745.223). A
dust-lead hazard is identified by the DLHS and the DLCL are used to
demonstrate that abatement activities effectively and permanently
eliminate those hazards. Therefore, in choosing which DLCL to finalize
in this rulemaking, EPA considered how the DLCL will support the
reliability, effectiveness, and safety of abatements to permanently
eliminate LBP hazards.
The 2001 LBP Hazards Rule adopted the rationale outlined in EPA's
1998 proposed rule (``Identification of Dangerous Levels of Lead,'' 63
FR 30302, 30341, June 3, 1998) (Ref. 21). See also 66 FR 1206, 1222-
1223 (Ref. 2). EPA chose DLCL that were ``achievable
[[Page 989]]
using products and methods known to be reliable and effective'' (Ref.
21). In the 2018 proposal for the 2019 DLHS Rule (``Review of the Dust-
Lead Hazard Standards and the Definition of Lead-Based Paint,'' 83 CFR
30889, July 2, 2018), EPA acknowledged that if the DLHS were set too
low, the effectiveness of the LBP Activities program may be harmed if
the abatement projects became overly expensive and time consuming due
to issues of achievability (Ref. 23). That same concern for
achievability applies to EPA's decision on which DLCL to set in this
rulemaking.
EPA received several comments during the public comment period
suggesting that EPA promulgate DLCL lower than the proposed levels at
10 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ for window sills, while a
subset of commenters specifically requested lowering the DLCL to 5
[mu]g/ft\2\ for floors and/or to 40 [mu]g/ft\2\ for window sills. A few
commenters also noted that lower levels for DLCL have been shown to be
feasible by the survey of lead hazard control grantees conducted by
HUD's Office of Lead Hazard Control and Healthy Homes (OLHCHH) (also
known as the HUD Clearance Survey) (Ref. 24).
As noted in the final 2019 DLHS Rule and the DLCL proposal,
according to the HUD Clearance Survey ``reduction in the federal
clearance standard for floors from 40 [micro]g/ft\2\ to 10 [micro]g/
ft\2\, a reduction in the federal clearance standard for windowsills
from 250 [micro]g/ft\2\ to 100 [micro]g/ft\2\ . . . are all technically
feasible using the methods currently employed by OLHCHH LHC grantees to
prepare for clearance'' even though, at the time the survey took place,
the levels that projects had to be cleared to were the original DLCL of
40 [micro]g/ft\2\ and 250 [micro]g/ft\2\, respectively (Ref. 24).
Additionally, according to public comments, a state department of
health and a non-governmental organization believe that most NLLAP-
recognized laboratories or those within their state are capable of
testing the clearance levels as proposed. Therefore, the final DLCL of
10 [mu]g/ft\2\ on floors and 100 [mu]g/ft\2\ on window sills are shown
to be achievable using available products and methods that are
effective and reliable in permanently eliminating LBP hazards. To the
extent commenters argue that lower options, particularly for sills, are
also achievable, such an argument does not necessitate selecting the
lower options because the primary design of the DLCL is to demonstrate
permanent elimination of the dust-lead hazards, which EPA finds is
achieved by clearance levels of 10 [mu]g/ft\2\ on floors and 100 [mu]g/
ft\2\ for window sills. For further information on the HUD Clearance
Survey, see the preamble to the 2019 DLHS Rule (Ref. 3).
In addition to the specific criteria of reliability, effectiveness,
and safety, the 2001 LBP Hazards rulemaking considered the DLCL in the
broader context of Title X, and selected DLCL that are compatible with
a ``workable framework for lead-based paint hazard evaluation and
reduction'' (Ref. 21). To this end, EPA chose DLCL that were consistent
with the DLHS in part to ensure they were ``as easy as possible to
understand and implement'' (Ref. 21).
EPA maintains the concern for consistency between the DLCL and DLHS
for this rulemaking. During the public comment period several
commenters expressed concern over the discrepancy between the 2019 DLHS
and the 2001 DLCL (Ref. 22). The commenters explained that this
inconsistency in the levels created confusion and leads to ethical
concerns of clearing a home with post-abatement levels higher than the
2019 revised DLHS. A few commenters urged EPA to quickly finalize as
proposed to, in part, fix the mismatch between the DLHS and the DLCL.
Compounding the potential for such confusion is the fact that, as
indicated in the 2019 DLHS Rule and described in greater detail
elsewhere in this preamble, HUD cross-references EPA's DLHS for
clearance work practices under HUD's LSHR. This means that if EPA chose
a different DLCL than the DLHS, a segment of the regulated community
would have had two sets of clearance levels to consider. The selected
DLCL of 10 [mu]g/ft\2\ on floors and 100 [mu]g/ft\2\ on window sills
will mitigate this confusion within the regulated community.
As stated previously in this preamble, EPA wanted to act as
expeditiously as possible to update the DLCL in recognition of the
updated DLHS for floors and window sills. EPA believes it has
reasonably focused this rulemaking to revise the DLCL so that attaining
these levels demonstrates elimination of dust-lead hazards under the
revised 2019 standards. When finalizing DLCL of 10 [mu]g/ft\2\ for
floors and 100 [mu]g/ft\2\ for window sills, as discussed above, the
EPA considered the achievability of these levels, how the lower dust-
lead loadings can be reliably detected by laboratories, the
effectiveness of these levels, and consistency with the revised 2019
standards and across the Federal Government. For further information on
the public comments received and a more comprehensive version of EPA's
response to comments related to this final action can be found in the
Response to Comments document (Ref. 22).
B. Technical Analysis
The Technical Support Document that accompanies this final rule
evaluated the 2001 DLCL, the background dust-lead level, and the five
DLCL options (15 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ for window
sills; and 10 [mu]g/ft\2\ for floors, and 40 [mu]g/ft\2\, 60 [mu]g/
ft\2\, 80 [mu]g/ft\2\ and 100 [mu]g/ft\2\ for window sills) with values
between background (lowest) and the 2001 DLCL (highest). The methods
for estimating exposure and health impacts utilized for the 2019 DLHS
rulemaking are reflected in the Technical Support Document for this
rule to analyze the DLCL options. The various components of the model
and input parameters used in the Technical Support Document for the
DLHS and this rulemaking have been the subject of multiple Science
Advisory Board Reviews, workshops and publications in the peer review
literature (Ref. 12, 26). The analysis outlined in the 2019 DLHS Rule
was used in that rulemaking to identify conditions that would result in
adverse health effects. Where the DLHS are used to identify conditions
that would result in adverse health effects, the DLCL must demonstrate
that those conditions identified by the DLHS have been eliminated.
Therefore, the health impact analysis for the DLCL is less central to
the decision-making for this rule than it was to the 2019 DLHS Rule.
Regardless, EPA must understand the impact on public health when
selecting the DLCL in order to inform the Economic Analysis.
The analyses that EPA developed and presented in both the Technical
Support Document for the 2019 DLHS Rule and the Technical Support
Document accompanying this final rule, were specifically designed to
model potential health effects that might accrue to the subpopulation,
i.e., children living in pre-1940 and pre-1978 housing. EPA notes that
its different program offices estimate exposures for different
populations, different media, and under different statutory
requirements and thus different models or parameters may be a better
fit for their purpose. As such, the approach and modeling parameters
chosen for this rulemaking should not necessarily be construed as
appropriate for or consistent with the goals of other EPA programs
(Ref. 12).
In its evaluation, EPA estimated blood lead levels and IQ changes
as a proxy for changes in cognitive function in children, six and
under, exposed long-term to these analyzed dust-lead loading levels. As
also reflected in the 2019 DLHS Rule, EPA generated two different
[[Page 990]]
modeling approaches to estimate the quantitative relationships between
dust-lead and blood lead level data. The first approach used
mechanistic modeling data that include consideration of age-specific
ingestion rates, activity patterns, and background exposures. The
second approach used empirical data that includes co-reported dust-lead
and blood lead level measurements in the homes of children. The dust-
lead and blood lead level data are used to develop an empirical
relationship to estimate blood lead level for each candidate DLCL. Both
approaches (mechanistic and empirical) are compared to provide
independent confirmation of the relationship between dust-lead loadings
and blood lead level. For additional information summarizing the
methodologies employed in the Technical Support Document, see the 2018
preamble to the proposed DLHS rule (Ref. 23).
C. Effect of the Revised DLCL on EPA and HUD Programs
1. LBP Activities Rule--EPA Abatements
Abatements are any measures or set of measures designed to
permanently eliminate lead-based paint hazards and include activities
such as the removal of paint and dust, the permanent enclosure or
encapsulation of lead-based paint, the replacement of painted surfaces
or fixtures, and all preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures. Abatements
must be conducted by certified abatement workers and supervisors. After
LBP abatements are conducted, EPA's regulations require a certified
inspector or risk assessor to conduct post-abatement clearance testing
(via dust wipe samples) of the abated area. If the dust wipe sample
results show dust-lead loadings equal to or exceeding the applicable
clearance level, ``the components represented by the failed sample
shall be recleaned and retested.'' See 40 CFR 745.227(e)(8)(vii). In
other words, the abatement is not cleared until the dust wipe samples
in the work area are below the clearance levels. Under this final rule,
inspectors and risk assessors would compare dust wipe sampling results
for floors and window sills to the revised DLCL of 10 [mu]g/ft\2\ and
100 [mu]g/ft\2\, respectively, and the results for window troughs to
the DLCL of 400 [mu]g/ft\2\. Dust wipe sampling results at or above the
DLCL would indicate that the components represented by the sample must
be recleaned and retested. This final rule does not change any other
risk assessment requirements.
2. Renovation, Repair and Painting Rule
The revised DLCL will not trigger new requirements under the
existing RRP Rule (40 CFR part 745, subpart E). The RRP Rule requires
post-renovation cleaning verification under 40 CFR 745.85(b), but the
rule does not require dust wipe sampling and analysis using the DLCL.
However, although optional under the RRP Rule, dust wipe sampling for
clearance using the DLCL in accordance with the LBP Activities Rule (40
CFR 745.227(e)(8)) may be required by contract or by another Federal,
state, territorial, tribal, or local law or regulation. At this time,
other than HUD's Lead Safe Housing Rule, EPA is not familiar with other
laws and regulations that require clearance testing using EPA's DLCL.
3. EPA-HUD Disclosure Rule
Under the Disclosure Rule, prospective sellers and lessors of
target housing must provide purchasers and renters with a federally
approved lead hazard information pamphlet and disclose known LBP and/or
LBP hazards, and any available records, reports, and additional
information pertaining to LBP and/or LBP hazards. The information
disclosure activities are required before a purchaser or renter is
obligated under a contract to purchase or lease target housing. Records
or reports pertaining to LBP and/or LBP hazards must be disclosed,
including results from post-abatement clearance testing, regardless of
whether the level of dust-lead is below the clearance levels.
The revised DLCL of 10 [mu]g/ft\2\ on floors and 100 [mu]g/ft\2\ on
window sills will not result in additional disclosures because there
are no new information collection requirements to consider under this
rule. Property owners would already be disclosing results, records,
reports, and any additional information that show dust-lead below the
original DLCL of 40 [mu]g/ft\2\ on floors or below 250 [mu]g/ft\2\ on
window sills, and any results, records, and reports of additional
cleaning due to the lower DLCL would be reflected in this same record.
4. LSHR Clearance Requirements
The DLCL in this final rule will not change the clearance levels
that apply to hazard reduction activities under HUD's LSHR because the
LSHR currently requires clearance at the DLHS level, which is reflected
by the lower DLCL. The LSHR requires certain hazard reduction
activities to be performed in certain federally-owned and assisted
target housing including abatements, interim controls, paint
stabilization, and ongoing LBP maintenance. Hazard reduction activities
are required in this housing when LBP hazards are identified or when
maintenance or rehabilitation activities disturb paint known or
presumed to be LBP. The LSHR's clearance regulations, 24 CFR 35.1340,
specify requirements for clearance of these projects (when they disturb
more than de minimis amounts of known or presumed lead-based painted
surfaces, as defined in 24 CFR 35.1350(d)), including a visual
assessment, dust sampling, submission of samples for analysis for lead
in dust, interpretation of sampling results, and preparation of a
report. As explained in the preamble to the 2019 DLHS Rule (Ref. 3),
the LSHR clearance regulations cross-reference EPA's DLHS. As a result,
the LSHR clearance levels were lowered to 10 [mu]g/ft\2\ and 100 [mu]g/
ft\2\ for floors and window sills, respectively, when the 2019 DLHS
Rule became effective on January 6, 2020. Accordingly, activities under
the LSHR are currently required to be cleared using EPA's DLHS.
5. 2017 Policy Guidance--HUD Requirements for Lead Hazard Control
Grants
On February 16, 2017, HUD's OLHCHH issued policy guidance to
establish new and more protective requirements for dust-lead action
levels for its Lead-Based Paint Hazard Control (LBPHC) and Lead Hazard
Reduction Demonstration (LHRD) grantees (the requirements also apply to
related HUD grants authorized by Title X, section 1011 (42 U.S.C.
4852), under similar names, including Lead Hazard Reduction (LHR)
grants and their High Impact Neighborhoods and Highest Lead-Based Paint
Abatement Needs grant categories) (Ref. 27). In particular, the
guidance adopted clearance levels of 10 [mu]g/ft\2\ and 100 [mu]g/ft\2\
for floors and window sills, respectively, for lead hazard control
activities performed under these grant programs. The change in
requirements was supported by scientific evidence on the adverse
effects of lead exposure at low blood-lead levels in children, (<10
[mu]g/dL) as well as the achievability of lower clearance levels based
on the HUD Clearance Survey (Ref. 24). The guidance clearance levels
for floors and window sills are equal to the final DLCL. Consequently,
the changes to the DLCL that EPA is promulgating with this final rule,
will not affect the clearance levels used by the LBPHC and LHRD
grantees.
6. HUD Guidelines
The HUD Guidelines for the Evaluation and Control of Lead-Based
[[Page 991]]
Paint Hazards in Housing were developed in 1995 under section 1017 of
Title X. They provide detailed, comprehensive, technical information on
how to identify LBP hazards in residential housing and COFs, and how to
control such hazards safely and efficiently. The Guidelines were
revised in 2012 to incorporate new information, technological advances,
and new Federal regulations, including EPA's LBP hazard standards.
Based on EPA's changes to the DLHS in 2019 and the changes to DLCL from
this final rule, HUD plans to revise Chapter 5 of the Guidelines on
risk assessment and reevaluation and Chapter 15 on clearance, and make
conforming changes elsewhere as needed.
7. Previous LBP-Related Activities
The DLCL are used to evaluate the effectiveness of a cleaning
following an abatement. After the dust wipe samples show dust-lead
loadings below the DLCL, an abatement report is prepared, copies of any
reports required under the LBP Activities Rule are provided to the
building owner (and to potential lessees and purchasers under the LBP
Disclosure Rule by those building owners or their agents), and all
required records are also retained by the abatement firm or by the
individuals who developed each report. The revised DLCL of 10 [mu]g/
ft\2\ on floors and 100 [mu]g/ft\2\ on window sills will not impose
retroactive requirements on regulated entities that have previously
performed post-abatement clearance testing using the original DLCL of
40 [mu]g/ft\2\ on floors or 250 [mu]g/ft\2\ on window sills. These new
requirements would only apply to post-abatement clearance sampling and
analysis conducted after the effective date of this final rule.
D. Conforming the Definition of Clearance Levels
EPA is finalizing as proposed, clarifying language that defines the
achievement of post-abatement clearance, which explains what dust-lead
levels are permitted on a surface following an abatement that would
achieve clearance. The post-abatement clearance procedures set forth in
40 CFR 745.227 state that clearance is not achieved when post-abatement
dust-lead levels (which are a measure of the mass of lead per area,
commonly expressed in micrograms per square foot ([mu]g/ft\2\)) equal
or exceed the clearance levels (40 CFR 745.227(e)(8)(vii)). However,
prior to this rule's amended language, 40 CFR 745.223 defined clearance
levels as ``the maximum amount of lead permitted in dust on a surface
following completion of an abatement activity'' (40 CFR 745.223)
(emphasis added). EPA also notes that HUD's clearance standards rule
for interim controls of lead-based paint hazards in HUD-assisted target
housing is consistent with the procedures set forth in 40 CFR 745.227
rather than 40 CFR 745.223. To resolve this post-abatement discrepancy,
EPA is conforming the definition of clearance levels found in 40 CFR
745.223 to the post-abatement clearance procedures in 40 CFR 745.227,
in order to clarify in the definition that the post-abatement dust-lead
levels must be below the clearance levels.
Three commenters (including state health departments and an
environmental non-governmental organization) submitted public comments
that supported EPA's decision to clarify in the DLCL definition that
the post-abatement dust-lead levels need to be below the DLCL in order
to achieve clearance. EPA agrees with the support from the public
commenters and is conforming the definition in 40 CFR 745.223 as
proposed.
E. State Authorization
Pursuant to TSCA section 404 and EPA's regulations at 40 CFR part
745, subpart Q, interested states, territories and federally recognized
tribes may apply for and receive authorization to administer their own
LBP Activities programs, as long as their programs are at least as
protective of human health and the environment as the EPA's program and
provide adequate enforcement. As part of the authorization process,
states, territories and federally recognized tribes must demonstrate to
EPA that they meet the requirements of the LBP Activities Rule. A
state, territory or federally recognized tribe must demonstrate that it
meets the revised DLCL in its application for authorization or, if
already authorized, in a report submitted under 40 CFR 745.324(h) no
later than two years after the effective date of the new requirements.
If an application for authorization has been submitted but not yet
approved, the state, territory or federally recognized tribe must
demonstrate that it meets the new requirements either by amending its
application, or in a report it submits under 40 CFR 745.324(h) no later
than two years after the effective date of the new requirements.
IV. References
The following is a list of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.
1. Public Law 102-550, Title X--Housing and Community Development
Act, enacted October 28, 1992 (also known as the Residential Lead-
Based Paint Hazard Reduction Act of 1992 or ``Title X'') (42 U.S.C.
4851 et seq.). https://www.govinfo.gov/content/pkg/USCODE-2017-title42/html/USCODE-2017-title42-chap63A-sec4851.htm.
2. U.S. EPA. Lead; Identification of Dangerous Levels of Lead; Final
Rule. Federal Register (66 FR 1206, January 5, 2001) (FRL-6763-5).
https://www.federalregister.gov/documents/2001/01/05/01-84/lead-identification-of-dangerous-levels-of-lead.
3. U.S. EPA. Review of the Dust-Lead Hazard Standards and the
Definition of Lead-Based Paint; Final Rule. Federal Register (84 FR
32632, July 9, 2019) (FRL-9995-49). https://www.federalregister.gov/documents/2019/07/09/2019-14024/review-of-the-dust-lead-hazard-standards-and-the-definition-of-lead-based-paint.
4. President's Task Force on Environmental Health Risks and Safety
Risks to Children. Federal Action Plan to Reduce Childhood Lead
Exposures and Associated Health Impacts. December 2018. https://www.epa.gov/lead/federal-action-plan-reduce-childhood-lead-exposure.
5. U.S. EPA. Implementation Status of EPA Actions Under the 2018
Federal Action Plan To Reduce Childhood Lead Exposures and
Associated Health Impacts: Fiscal Year 2019, 4th Quarter. October
2019. https://www.epa.gov/leadactionplanimplementation/implementation-status-epa-actions-under-2018-federal-action-plan-1#goal1.
6. Sierra Club et al. Letter to Lisa Jackson RE: Citizen Petition to
EPA Regarding the Paint and Dust Lead Standards. August 10, 2009.
https://www.epa.gov/sites/production/files/2015-10/documents/epa_lead_standards_petition_final.pdf.
7. U.S. EPA, Office of Pollution Prevention and Toxics. Economic
Analysis of the Final Rule to Revise the TSCA Dust-Lead Clearance
Levels. December 2020.
8. CDC. Childhood Blood Lead Levels in Children Aged <5 Years--
United States, 2009-2014. CDC Morbidity and Mortality Weekly Report,
Vol. 66 No. 3, January 20, 2017. https://www.cdc.gov/mmwr/volumes/66/ss/ss6603a1.htm.
9. HHS, National Toxicology Program. NTP Monograph on Health Effects
of Low-Level Lead. National Institute of Environmental Health
Sciences, Research Triangle Park, NC. NIH Pub. No. 12-5996. ISSN
2330-1279. June 13, 2012. https://ntp.niehs.nih.gov/ntp/ohat/lead/
final/
[[Page 992]]
monographhealtheffectslowlevellead_newissn_508.pdf.
10. Agency for Toxic Substances and Disease Registry, Division of
Toxicology and Human Health Sciences. Lead--ToxFAQsTMCAS #7439-92-1.
August 2007. https://www.atsdr.cdc.gov/toxfaqs/tfacts13.pdf.
11. U.S. EPA. Exposure Factors Handbook 2011 Edition (Final Report).
U.S. Environmental Protection Agency, Washington, DC, EPA/600/R-09/
052F. September 2011. https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.
12. U.S. EPA, Office of Pollution Prevention and Toxics. Technical
Support Document for Residential Dust-lead Clearance Levels
Rulemaking Estimation of Blood Lead Levels and Effects from
Exposures to Dust-lead. December 2020.
13. U.S. EPA. Policy on Evaluating Health Risks to Children. Policy.
October 1995. https://www.epa.gov/sites/production/files/2014-05/documents/1995_childrens_health_policy_statement.pdf.
14. Zartarian, V., Xue, J., Tornero-Velez, R., & Brown, J.
Children's Lead Exposure: A Multimedia Modeling Analysis to Guide
Public Health Decision-Making. Environmental Health Perspectives,
125(9), 097009-097009. September 12, 2017. https://doi.org/10.1289/EHP1605.
15. President's Task Force on Environmental Health Risks and Safety
Risks to Children. Key Federal Programs to Reduce Childhood Lead
Exposures and Eliminate Associated Health Impacts. November 2016.
https://ptfceh.niehs.nih.gov/features/assets/files/key_federal_programs_to_reduce_childhood_lead_exposures_and_eliminate_associated_health_impactspresidents_508.pdf.
16. U.S. EPA. Integrated Science Assessment (ISA) for Lead (Final
Report, June 2013). U.S. EPA, Washington, DC, EPA/600/R-10/075F,
2013. https://www.epa.gov/isa/integrated-science-assessment-isa-lead.
17. U.S. EPA. Lead; Renovation, Repair, and Painting Program; Final
Rule. Federal Register (73 FR 21692, April 22, 2008) (FRL-8355-7).
https://www.federalregister.gov/citation/73-FR-21692.
18. HUD, EPA. Lead; Requirements for Disclosure of Known Lead-Based
Paint and/or Lead-Based Paint Hazards in Housing; Final Rule.
Federal Register (61 FR 9064, March 6, 1996) (FRL-5347-9). https://www.federalregister.gov/citation/61-FR-9064.
19. U.S. EPA. Lead; Requirements for Lead-Based Paint Activities in
Target Housing and Child-Occupied Facilities; Final Rule. Federal
Register (61 FR 45778, August 29, 1996) (FRL-5389-9). https://www.federalregister.gov/documents/1996/08/29/96-21954/lead-requirements-for-lead-based-paint-activities-in-target-housing-and-child-occupied-facilities.
20. HUD. Requirements for Notification, Evaluation and Reduction of
Lead-Based Paint Hazards in Federally Owned Residential Property and
Housing Receiving Federal Assistance; Response to Elevated Blood
Lead Levels; Final Rule. Federal Register (82 FR 4151, January 13,
2017) (FR-5816-F-02). https://www.federalregister.gov/documents/2017/01/13/2017-00261/requirements-for-notification-evaluation-and-reduction-of-lead-based-paint-hazards-in-federally.
21. U.S. EPA. Lead; Identification of Dangerous Levels of Lead;
Proposed Rule. Federal Register (63 FR 30302, June 3, 1998) (FRL-
5791-9). https://www.federalregister.gov/documents/1998/06/03/98-14736/lead-identification-of-dangerous-levels-of-lead.
22. U.S. EPA. Review of the Dust-Lead Post-Abatement Clearance
Levels RIN 2070-AK50 Response to Public Comments. December 2020.
23. U.S. EPA. Review of the Dust-Lead Hazard Standards and the
Definition of Lead-Based Paint; Proposed Rule. Federal Register (83
FR 30889, July 2, 2018) (FRL-9976-04). https://www.federalregister.gov/documents/2018/07/02/2018-14094/review-of-the-dust-lead-hazard-standards-and-the-definition-of-lead-based-paint.
24. HUD, Office of Lead Hazard Control and Healthy Homes. Lead
Hazard Control Clearance Survey. Final Report. October 2015. https://www.hud.gov/sites/documents/clearancesurvey_24oct15.pdf.
25. U.S. EPA. Review of the Dust-Lead Hazard Standards and the
Definition of Lead-Based Paint RIN 2070-AJ82 Response to Public
Comments. June 2019. https://www.regulations.gov/document?D=EPA-HQ-OPPT-2018-0166-0571.
26. U.S. EPA, Office of Pollution Prevention and Toxics. Technical
Support Document for Residential Dust-lead Hazard Standards
Rulemaking Approach taken to Estimate Blood Lead Levels and Effects
from Exposures to Dust-lead. June 2019.
27. HUD. Revised Dust-Lead Action Levels for Risk Assessment and
Clearance; Clearance of Porch Floors. Policy Guidance 2017-01 Rev 1.
February 16, 2017. https://www.hud.gov/sites/documents/LEADDUSTLEVELS_REV1.pdf.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is an economically significant regulatory action that
was submitted to the Office of Management and Budget (OMB) for review
under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563
(76 FR 3821, January 21, 2011). Any changes made in response to OMB
recommendations have been documented in the docket. The Agency prepared
an analysis of the potential costs and benefits associated with this
action, which is available in the docket (Ref. 7).
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is considered an Executive Order 13771 regulatory
action (82 FR 9339, February 3, 2017). Details on the estimated costs
of this final rule can be found in EPA's analysis of the potential
costs and benefits associated with this action (Ref. 7).
C. Paperwork Reduction Act (PRA)
This action does not directly impose an information collection
burden under the PRA, 44 U.S.C. 3501 et seq. Under 24 CFR part 35,
subpart A, and 40 CFR 745, subpart F, and approved under OMB Control
Number 2070-0151, sellers and lessors must already provide purchasers
or lessees any available records or reports ``pertaining to'' LBP, LBP
hazards and/or any lead hazard evaluative reports available to the
seller or lessor. Accordingly, a seller or lessor must disclose any
reports showing dust-lead levels, regardless of the value. Thus, this
action would not result in additional disclosures. Because there are no
new information collection requirements to consider under this rule, or
any changes to the existing requirements to consider under this rule,
an ICR is not necessary.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq. The small businesses subject to the requirements of
this action are abatement firms that may incur costs associated with
additional cleaning and sealing in houses where a post-abatement
loading is between the original DLCL of 40 [mu]g/ft\2\ for floors and
250 [mu]g/ft\2\ for window sills, and the revised DLCL of 10 [mu]g/
ft\2\ for floors and 100 [mu]g/ft\2\ for window sills.
EPA's Economic Analysis (Ref. 7) presents low and high scenarios
for the number of housing units where a child with a blood lead level
that equals or exceeds a Federal or state trigger value lives. For the
low scenario, environmental investigations are assumed to be conducted
when a child's blood lead level equals or exceeds the trigger value set
by that child's state. These values vary from 5 [mu]g/dL to 25 [mu]g/
dL, depending on the state. For the
[[Page 993]]
high scenario, environmental investigations are assumed to be conducted
when a child's blood lead level equals or exceeds the CDC's reference
level of 5 [mu]g/dL. The two scenarios function as bounding estimates,
and a more realistic assessment of the number of environmental
investigations is that they are between the high and low scenarios. The
low and high scenarios for the number of environmental investigations
affect the estimated number of small business that might incur costs
for cleaning and additional dust wipe testing if EPA promulgates the
clearance levels in this final rule.
The Agency has determined that this rule may impact <=1,240 to
>=10,215 small abatement firms. Of these, about <=1,025 to >=8,977 may
have cost impacts less than 1% of revenues, <=113 to >=990 may have
impacts between 1% and 3%, and <=28 to >=240 may have impacts greater
than 3% of revenues. The ``<='' and ``>='' symbols are intended to
convey uncertainty in the results. They do not mean that the results
are unbounded (i.e., that the true values could be zero on the lower
end or infinity on the higher end). Details of the analysis are
presented in the EA, which is available in the docket (Ref. 7).
In addition to the use of the high scenario (which is likely to
overestimate the number of small entities with significant impacts),
the analysis makes a series of other assumptions that are likely to
lead to an overestimate of small entity impacts. In order to estimate
the potential impacts of the rule, EPA assumed that an environmental
investigation occurs whenever a child's blood lead level is found to
equal or exceed a Federal or state trigger value; that the
environmental investigation always includes dust wipe testing of the
child's home; and that a clean-up occurs whenever the environmental
investigation indicates that dust-lead loadings exceed a hazard
standard. Neither the DLCL nor the other provisions of EPA's LBP
activities regulations require property owners to evaluate their
properties for the presence of dust-lead hazards, nor to take action to
address the hazards if dust-lead hazards are identified. These
assumptions may overestimate the number of abatements affected, and
thus the number of small abatement firms with significant impacts.
The analysis also assumes that in all cases where a dust-lead
hazard is identified, the property owner performs at least one baseline
abatement activity. This likely overestimates costs because some events
may only involve interim controls, and EPA does not require clearance
testing for such events. Again, this assumption may overestimate the
number of abatements affected, and thus the number of small abatement
firms with significant impacts.
Finally, the analysis assumes that in all cases the costs are borne
entirely by the lead paint abatement firm (as opposed to being passed
through to the property owner). However, it is more likely that some,
or perhaps even most, of these costs will be passed on to the property
owners. In some circumstances the demand for abatements is likely to be
relatively inelastic. Furthermore, the costs of this rule for an
affected job are a fraction of the costs of a typical abatement, and
only a fraction of jobs are estimated to require re-clearance (meaning
that the additional costs for a few jobs can be spread over the up-
front prices of a much larger pool of abatements). EPA believes it is
likely that abatement contractors will be able to raise up-front prices
to some degree to account for the potential costs of additional
cleaning and associated activities. Such pass-through of costs would
decrease the magnitude of the cost impacts on individual abatement
firms.
In light of these conservative assumptions, the small entity
impacts analysis likely overstates the number of small businesses with
large impacts, both in terms of the magnitude of the impacts and the
number of businesses affected.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The total estimated
annual cost of the rule is $3 million to $14 million per year (Ref. 7),
which does not exceed the inflation-adjusted unfunded mandate threshold
of $156 million.
F. Executive Order 13132: Federalism
This action does not have federalism implications, as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. States
that have authorized LBP Activities programs must demonstrate that they
have DLCL at least as protective as the levels at 40 CFR 745.227.
However, authorized states are under no obligation to continue to
administer the LBP Activities program, and if they do not wish to adopt
the new DLCL they can relinquish their authorization. In the absence of
a state authorization, EPA will administer these requirements. Thus,
Executive Order 13132 does not apply to this action.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). Federally
recognized tribes that have authorized LBP Activities programs must
demonstrate that they have DLCL at least as protective as the clearance
level at 40 CFR 745.227. However, these authorized tribes are under no
obligation to continue to administer the LBP Activities program, and if
they do not wish to adopt the new DLCL they can relinquish their
authorization. In the absence of a tribal authorization, EPA will
administer these requirements. Thus, Executive Order 13175 does not
apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is economically significant as defined in
Executive Order 12866, and EPA believes that the environmental health
or safety risk addressed by this action may have a disproportionate
effect on children. Accordingly, we have evaluated the environmental
health or safety effects of dust-lead exposure in children. The results
of this evaluation are contained in Unit I.F. of the preamble titled
``Children's Environmental Health,'' Unit II.A. of the preamble titled
``Health Effects,'' the Economic Analysis and the Technical Support
Document, where the health impacts of lead exposure and children is
discussed more fully (Ref. 7, 12). The documents referenced above are
available in the public docket for this action.
The primary purpose of this rule is to clear abatements to a level
that can reliably, effectively and safely eliminate LBP hazards in
target housing, including target housing where children reside, and
COFs. EPA's analysis indicates that there will be approximately 2,300
to 22,000 children per year affected by the rule (Ref. 7).
[[Page 994]]
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply, distribution
or use of energy and the Administrator of the Office of Information and
Regulatory Affairs has not otherwise determined that the action is a
significant energy action.
J. National Technology Transfer and Advancement Act (NTTAA)
Since this action does not involve any technical standards, NTTAA
section 12(d), 15 U.S.C. 272 note, does not apply to this action.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this decision is contained in the Economic Analysis,
which is available in the docket (Ref. 7).
L. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is a ``major
rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 745
Environmental protection, Abatement, Child-occupied facility,
Clearance levels, Hazardous substances, Lead, Lead poisoning, Lead-
based paint, Target housing.
Andrew Wheeler,
Administrator.
Therefore, for the reasons set forth in the preamble, 40 CFR
chapter I, subchapter R, is amended as follows:
PART 745--[AMENDED]
0
1. The authority citation for part 745 continues to read as follows:
Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
0
2. Amend Sec. 745.223 by revising the definition for ``Clearance
levels'' to read as follows:
Sec. 745.223 Definitions.
* * * * *
Clearance levels are values that indicate the amount of lead in
dust on a surface following completion of an abatement activity. To
achieve clearance when dust sampling is required, values below these
levels must be achieved.
* * * * *
0
3. Amend Sec. 745.227 by revising paragraph (e)(8)(viii) to read as
follows:
Sec. 745.227 Work practice standards for conducting lead-based paint
activities: Target housing and child-occupied facilities.
* * * * *
(e) * * *
(8) * * *
(viii) The clearance levels for lead in dust are 10 [mu]g/ft\2\ for
floors, 100 [mu]g/ft\2\ for interior window sills, and 400 [mu]g/ft\2\
for window troughs.
* * * * *
[FR Doc. 2020-28565 Filed 1-6-21; 8:45 am]
BILLING CODE 6560-50-P