[Federal Register Volume 90, Number 129 (Wednesday, July 9, 2025)]
[Rules and Regulations]
[Pages 30211-30213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-12726]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[EPA-HQ-OPPT-2023-0231; FRL-8524.1-02-OCSPP]
RIN 2070-AK91
Reconsideration of the Dust-Lead Hazard Standards and Dust-Lead
Post-Abatement Clearance Levels; Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; correcting amendments.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
correcting a final rule that appeared in the Federal Register of
November 12, 2024, that finalized several revisions to EPA's lead-based
paint (LBP) regulations. Subsequent to publication, the Office of the
Federal Register (OFR) informed the Agency that there were errors in
the amendatory instructions that describe specific revisions for two
sections of the regulation. In the Federal Register of December 16,
2024, EPA published a technical correction to the final rule that
explained the errors and the corresponding technical corrections that
the Agency believed would address the errors identified by the OFR.
Unfortunately, that technical correction did not fix the amendatory
instructions prior to the effective date of the final rule. As a
result, when the final rule became effective on January 13, 2025, three
subparagraphs of regulatory text were inadvertently deleted--a change
to the post-abatement regulatory activities that EPA did not intend to
make. This action corrects that error by restoring the inadvertently
deleted text in the regulations.
DATES: Effective July 9, 2025.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPPT-2023-0231, is available online
at https://www.regulations.gov. Additional instructions on visiting the
docket, along with more information about dockets generally, is
available at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information: Claire Brisse, Existing Chemicals Risk
Management Division, Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460-0001; telephone number: (202) 564-9004; email address:
[email protected].
For general information on lead: The National Lead Information
Center, 422 South Clinton Avenue, Rochester, NY 14620; telephone
number: (800) 424-LEAD [5323]; online form: https://www.epa.gov/lead/forms/lead-hotline-national-lead-information-center.
For general information on TSCA: The TSCA Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: [email protected].
For hearing- or speech-impaired assistance: Persons may reach the
telephone numbers for the contacts through TTY by calling the toll-free
Federal Communications Commission's Telecommunications Relay Service at
711.
SUPPLEMENTARY INFORMATION:
I. Does this action apply to you?
You may be affected by this action if you conduct abatement
activities in accordance with 40 CFR 745.227 or if you operate a
training program required to be accredited under 40 CFR 745.225 that
trains individuals about abatement activities. The following list of
North American Industrial Classification System (NAICS) codes is not
intended to be exhaustive, but rather provides a guide to help readers
determine whether this document applies to them. Affected entities may
include:
[[Page 30212]]
Engineering services (NAICS code 541330) and building
inspection services (NAICS code 541350) (e.g., dust sampling
technicians).
Lead abatement professionals (NAICS code 562910) (e.g.,
firms and supervisors engaged in LBP activities).
Other technical and trade schools (NAICS code 611519)
(e.g., training providers).
If you have questions regarding the applicability of this action to
a particular entity, consult the regulations or contact the technical
information person listed in the FOR FURTHER INFORMATION CONTACT
section.
II. What action is the Agency taking?
EPA is reestablishing inadvertently deleted regulatory text at 40
CFR 745.227(e)(8)(v), which was originally promulgated in 2001 pursuant
to TSCA section 402. See 66 FR 1206, January 5, 2001 (FRL-6763-5), also
known as the ``2001 LBP Hazards Rule.'' The inadvertently deleted
regulatory text in 40 CFR 745.227(e)(8)(v)(A), (B) and (C) outlines
post-abatement dust sampling activities and how they should be
conducted in or on residential dwellings or child-occupied facilities.
The error occurred when EPA published a final rule in the Federal
Register of November 12, 2024, entitled ``Dust-Lead Hazard Standards
and Dust-Lead Post-Abatement Clearance Levels'' and also known as the
``dust-lead reconsideration rulemaking.'' See 89 FR 89416, November 12,
2024 (FRL-8524-02-OCSPP).
After publication of the November 2024 final rule, the OFR
identified errors in the amendatory instructions for two sections of
the regulations. One of those errors, the amendatory instruction
identified as ``17b'', directed OFR to revise 40 CFR 745.227(e)(8)(v);
however, the instructions did not include the ``introductory text''
and, as a result, the instructions inadvertently directed OFR to delete
the subordinate paragraphs to paragraph (e)(8)(v). The instruction
should have directed OFR to revise the introductory text of paragraph
(e)(8)(v) only, as EPA intended to modify the introductory text
paragraph (e)(8)(v) and had not proposed or intended to modify
(e)(8)(v)(A), (B) and (C).
In the Federal Register of December 16, 2024, EPA published a
technical correction to the November 2024 final rule that explained the
errors and provided the corresponding technical corrections that the
Agency believed would address the errors identified by the OFR.
Unfortunately, that technical correction did not fix the amendatory
instructions prior to the effective date of the final rule. As a
result, when the final rule became effective on January 13, 2025, the
three subparagraphs at 40 CFR 745.227(e)(8)(v)(A), (B) and (C) were
inadvertently deleted, a change that EPA neither proposed nor
envisioned in the dust-lead reconsideration rulemaking finalized on
November 12, 2024.
This action will restore the inadvertently deleted regulatory text
to restore the relied upon methods that help ensure and provide
clarity, so abatements are done in a manner that is reliable, effective
and safe (15 U.S.C. 2682(a)(1)).
III. Why is this correction issued as a final rule?
EPA's authority for issuing this correction is provided by the
Administrative Procedure Act (APA), 5 U.S.C. 553. Section 553(b)(B) of
the APA provides that when an agency for good cause finds that notice
and public procedure are impracticable, unnecessary, or contrary to the
public interest, the agency may issue a final rule without providing
notice and an opportunity for public comment. For the reasons discussed
in this unit, EPA has determined that notice and public comment are
unnecessary and contrary to the public interest for this action.
As discussed in the December 2024 technical correction, the
November 2024 final rule published with inaccurate amendatory
instructions that resulted in the inadvertent deletion of existing
regulatory text. The December 2024 technical correction further
explained the context of the error to the amendatory instructions and
clarified that the OFR made the Agency aware of the error after the
final rule published. Additionally, the December 2024 technical
correction described in succinct detail what text was inadvertently
omitted within the amendatory instructions in the November 2024 final
rule, explaining that ``the instruction should direct the OFR to revise
the introductory text of the paragraph (e)(8)(v)'' as ``the set-out
text for paragraph (e)(8)(v) does not include the subordinate
paragraphs . . . .'' That document further explained that corrections
to the amendatory instructions were necessary to allow for the proper
revisions to be incorporated into the Code of Federal Regulations
(CFR). Nonetheless, the amendatory instructions in the December 2024
technical correction failed to actually effectuate the desired
corrections to the regulation, resulting in the inadvertent deletion of
the existing text beyond the introductory text of the paragraph.
This action corrects the error by restoring the inadvertently
deleted regulatory text in 40 CFR 745.227(e)(8)(v)(A) through (C),
which was neither proposed nor envisioned to be deleted or modified in
the dust-lead reconsideration rulemaking finalized on November 12,
2024. This action will ensure the regulatory text is comports with the
description from the final rule preamble, which did not include any
discussion on these additional deletions, as they were done in error.
Since this correction is intended to restore the regulatory text that
the Agency did not intend to change with the November 2024 final rule
or the subsequent technical correction of December 2024, EPA finds that
notice and comment for this rulemaking is unnecessary under the APA's
``good cause'' exemption.
In addition, any further delay in restoring the inadvertently
deleted regulatory text potentially resulting from a notice and comment
process would harm the public interest (including that of the regulated
community). The inadvertently deleted regulatory text, which was
originally established in 2001, sets forth key requirements after an
abatement is completed, including the location and number of clearance
samples that must be taken, as well as the process for undertaking a
visible inspection following an exterior paint abatement. This is an
important part of the post-abatement protections that are included in
40 CFR 745.227. As this section of regulatory text was originally
established more than 24 years ago, it has also been embedded into
various portions of the lead-based paint activities programs both at
the federal level and within various authorized programs established by
states, territories and federally recognized Tribes, including any
training for abatement professionals. This minor technical fix will
expeditiously restore the inadvertently deleted regulatory text that is
an essential part of ensuring that abatements are being done in a
manner that is reliable, effective and safe (15 U.S.C. 2682(a)(1)) and
will ultimately restore the clarity and protectiveness of the
inadvertently deleted text for both the public and the regulated
community. As a result, EPA is moving forward to finalize this action
without notice and comment under the APA's ``good cause'' exemption to
avoid any harm the inadvertent deletion could cause to the public's
interest.
Further, this correction does not impose any new or modified
regulatory requirements that would warrant public notice and comment,
or time for the
[[Page 30213]]
regulated community to prepare for the rule to come into effect. See
Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir.
1996) (in determining whether good cause exists to make a rule
immediately effective, an agency should ``balance the necessity for
immediate implementation against principles of fundamental fairness
which require that all affected persons be afforded a reasonable amount
of time to prepare for the effective date of its ruling''). EPA has
balanced the necessity for immediate implementation against the
benefits of delaying implementation. Because this action restores
important deleted regulatory text that has already been established and
aligns with the intent described in the December 2016 technical
correction, the public is aware of the content of the rule. In
addition, restoring this language expeditiously would allow important
activities (i.e., sampling, visible inspection) to continue to take
place after abatement is considered complete. These are critical
elements of EPA's lead-based paint activities program that help ensure
safe work practices are being upheld. As a result, good cause exists
for this rule to be made immediately effective in accordance with the
APA (5 U.S.C. 553(d)(3)).
VI. Do any of the statutory and executive order review requirements
apply to this action?
No. As a technical correction, this action is not subject to the
regulatory assessment requirements and does not otherwise change the
detailed discussion of the statutory and executive order review
requirements contained in Unit IX. of the November 2024 final dust-lead
reconsideration rulemaking.
V. Is this action subject to the Congressional Review Act (CRA)?
Yes. 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. The CRA allows the issuing
agency to make a rule effective sooner than otherwise provided by the
CRA if the agency makes a good cause finding that notice and comment
rulemaking procedures are impracticable, unnecessary or contrary to the
public interest (5 U.S.C. 808(2)). EPA has made a good cause finding
for this rule as discussed in Unit III., including the basis for that
finding.
List of Subjects in 40 CFR Part 745
Environmental protection, Abatement, Child-occupied facility,
Clearance levels, Hazardous substances, Incorporation by reference,
Lead, Lead poisoning, Lead-based paint, Target housing.
Dated: July 6, 2025.
Nancy B. Beck,
Principal Deputy Assistant Administrator, Office of Chemical Safety and
Pollution Prevention.
For the reasons set forth in the preamble, 40 CFR chapter I is
corrected as follows:
PART 745--LEAD-BASED PAINT POISONING PREVENTION IN CERTAIN
RESIDENTIAL STRUCTURES
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. Revise and republish Sec. 745.227(e)(8)(v) to read as follows:
Sec. 745.227 Work practice standards for conducting lead-based paint
activities: target housing and child-occupied facilities.
* * * * *
(e) * * *
(8) * * *
(v) The following post-abatement testing activities shall be
conducted as appropriate based upon the extent or manner of abatement
activities conducted in or to the residential dwelling or child-
occupied facility:
(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.
(C) Following an exterior paint abatement, a visible inspection
shall be conducted. All horizontal surfaces in the outdoor living area
closest to the abated surface shall be found to be cleaned of visible
dust and debris. In addition, a visual inspection shall be conducted to
determine the presence of paint chips on the dripline or next to the
foundation below any exterior surface abated. If paint chips are
present, they must be removed from the site and properly disposed of,
according to all applicable Federal, State and local requirements.
* * * * *
[FR Doc. 2025-12726 Filed 7-8-25; 8:45 am]
BILLING CODE 6560-50-P