3 June 1998
This provides the introduction of the Environmental Protection Agency's proposed rule on "Identification of Dangerous Levels of Lead." The full document (410K) is available Zip-compressed: http://jya.com/epa060398.zip (118K)
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html
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[Federal Register: June 3, 1998 (Volume 63, Number 106)]
[Proposed Rules]
[Page 30301-30355]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03jn98-45]
[[Page 30301]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 745
Lead; Identification of Dangerous Levels of Lead; Proposed Rule
[[Page 30302]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPTS-62156; FRL-5791-9]
RIN 2070-AC63
Lead; Identification of Dangerous Levels of Lead
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: In accordance with section 403 of the Toxic Substances Control
Act (TSCA), as amended by the Residential Lead-Based Paint Hazard
Reduction Act of 1992, also known as ``Title X,'' EPA is proposing a
regulation to establish standards for lead-based paint hazards in most
pre-1978 housing and child-occupied facilities. This proposed
regulation is a focal point of the Federal lead program and supports
the implementation of regulations already promulgated and others under
development which deal with worker training and certification, lead
hazard disclosure in real estate transactions, requirements for lead
cleanup under State authorities, lead hazard evaluation and control in
Federally-owned and Federally-assisted housing, and U.S. Department of
Housing and Urban Development (HUD) grants to assist in lead hazard
abatement. In addition, today's action also proposes, under the
authority of TSCA section 402, residential lead dust cleanup levels and
amendments to dust and soil sampling requirements and, under the
authority of TSCA section 404, amendments to State program
authorization requirements. By supporting the implementation of the
national lead program, this proposed regulation would help to prevent
lead poisoning in children under the age of 6.
DATES: Written comments in response to this proposed rule must be
received on or before September 1, 1998.
ADDRESSES: Each comment must bear the docket control number OPPTS-
62156. All comments should be sent in triplicate to: OPPT Document
Control Officer (7407), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 401 M St., SW., Rm. G099, East Tower,
Washington, DC 20460.
Comments and data may also be submitted electronically to:
oppt.ncic@epamail.epa.gov. Follow the instructions under Unit X. of
this document. No Confidential Business Information (CBI) should be
submitted through e-mail.
All comments which contain information claimed as CBI must be
clearly marked as such. Three copies, sanitized of any comments
containing information claimed as CBI, must also be submitted and will
be placed in the public record for this rulemaking. Persons submitting
information, any portion of which they believe is entitled to treatment
as CBI by EPA, must assert a business confidentiality claim in
accordance with 40 CFR 2.203(b) for each such portion. This claim must
be made at the time that the information is submitted to EPA. If a
submitter does not assert a confidentiality claim at the time of
submission, EPA will consider this as a waiver of any confidentiality
claim and the information may be made available to the public by EPA
without further notice to the submitter.
If requested, EPA will schedule public meetings where oral comments
will be heard. EPA will announce in the Federal Register the time and
place of any public meetings. Oral statements will be scheduled on a
first come first served basis by calling the telephone number listed in
the Federal Register notice that announces these meetings. All
statements will be made part of the public record and will be
considered in the development of the final rule.
FOR FURTHER INFORMATION CONTACT: For general information contact:
National Lead Information Center's Clearinghouse, 1-800-424-LEAD(5323).
For specific technical and policy questions contact: Jonathan Jacobson,
(202) 260-3779; jacobson.jonathan@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
I. Overview
This overview identifies entities potentially affected by the rule,
summarizes the proposed rule, describes the uses and key limitations of
the proposal's scope, and provides a roadmap of the preamble.
A. Regulated Entities
The following table identifies the entities that would be involved
in the implementation of regulations that would be affected by today's
proposal and the effect of the proposal on implementation of those
regulations.
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Examples of
Category Entities Effect of Proposal
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Lead abatement professionals Workers, Provides standards
supervisors, that risk
inspectors, risk assessors would
assessors, and use to identify
project designers hazards and
engaged in lead- evaluate
based paint clearance tests;
activities helps determine
when certified
professionals
would be required
to perform
abatements
Training providers Firms providing Provides standards
training services that training
in lead-based providers would
paint activities have to teach in
their courses
HUD and other Federal agencies Proposed standards
that own residential property identify hazards
that Federal
agencies would
have to abate in
pre-1960 housing
prior to sale
Property owners who receive State and city Proposed standards
assistance through Federal public housing identify hazards
housing programs authorities, that property
owners of multi- owners would have
family rental to abate or
properties who reduce as
receive project- specified by
based assistance, regulations
owners of rental currently be
properties who developed by HUD
lease units under under authority
HUD's tenant- of Title X,
based assistance section 1012
program
Property owners Owner occupants, Proposed standards
rental property identify hazards
owners, public that would have
housing to be disclosed
authorities, under EPA/HUD
Federal agencies joint regulations
promulgated under
Title X, section
1018
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This table is not intended to be exhaustive, but rather provides a
guide for readers likely to be affected by this action through
implementation of the elements of the programs discussed in this
proposal. To determine whether
[[Page 30303]]
you, your business, or your agency is affected, you should carefully
examine the Requirements for Lead-Based Paint Activities at 40 CFR part
745, subpart L and subpart Q and Lead-Based Paint Disclosure at 40 CFR
part 745, subpart F and 24 CFR part 35, subpart H. The regulations
covering evaluation and control of lead-based paint hazards in HUD-
associated and Federally-owned housing are currently under development.
Proposed regulations were published in the Federal Register on June 7,
1996 (61 FR 29169). If you have any questions regarding the
applicability of this action to a particular entity, consult the person
listed in the ``FOR FURTHER INFORMATION CONTACT'' section.
B. Summary of the Proposed Rule
1. Lead-Based Paint Hazard Standards. EPA is proposing the
amendments in this document primarily under the authority of section
403 of TSCA. Section 403 requires EPA to promulgate regulations that
``identify . . . lead-based paint hazards, lead-contaminated dust and
lead-contaminated soil'' for purposes of the entire Title X which
includes Title IV of TSCA. Lead-based paint hazards, under TSCA section
401, 15 U.S.C. 2681, are defined as of conditions of lead-based paint
and lead-contaminated dust and soil that ``would result'' in adverse
human health effects (15 U.S.C. 2681(10)). Lead-based paint hazards
from all three sources apply to target housing (i.e., most pre-1978
housing) and child-occupied facilities.
The proposed standard for the paint component, called hazardous
lead-based paint, is lead-based paint in poor condition. Paint in poor
condition is defined as more than 10 square feet (ft<SUP>2</SUP>) of
deteriorated paint on exterior components with large surface areas,
more than 2 ft<SUP>2</SUP> of deteriorated paint on interior components
with large surface areas (e.g., walls, ceilings, floors), or
deteriorated paint more than 10 percent of the total surface area of
exterior or interior components with small surface areas (e.g., trim,
baseboards). The proposed standards for dust-lead hazards are the
average levels of lead in dust that equals or exceeds 50 micrograms per
square foot (<greek-m>g/ft<SUP>2</SUP>) on uncarpeted floors and 250
<greek-m>g/ft<SUP>2</SUP> on interior window sills. The proposed
standard for soil-lead hazards is the total lead that equals or exceeds
2,000 parts per million (ppm) based on a yard-wide average soil-lead
concentration rather than maximum or worst-case values.
Although the proposed regulation does not require property owners
to respond to the presence of lead-based paint hazards, EPA would
recommend that appropriate measures should be taken, commensurate with
the risk reduction achieved, to reduce or eliminate the hazards. Small
amounts of hazardous lead-based paint can be addressed by repairing
deteriorated paint. Larger amounts of hazardous lead-based paint should
be abated, meaning that the paint can be removed from the component,
the component can be replaced, or the paint can be enclosed.
Dust-lead hazards should be addressed through intensive cleaning.
If household surfaces are smooth and cleanable, regular household
cleaning can probably maintain acceptably low levels of lead in dust in
the absence of any event (e.g., remodeling project) that reintroduces
large amounts of dust contaminated with lead. Soil-lead hazards should
be eliminated. Currently available options include soil removal and
permanently covering the soil (i.e., paving).
In addition, this document proposes to identify a soil-lead level
of concern of 400 ppm based on a yard-wide average, which represents a
level at which risk should be communicated to the public as compared to
the more active risk reduction measures recommended for hazards. This
level will not be included in the regulation because it would impose no
legally recognizable requirements on any person or entities subject to
this regulation. Nevertheless, if a soil-lead hazard is not present,
but lead in soil exceeds the level of concern, EPA recommends that low
cost measures, which may be sufficient to reduce exposure, be
implemented. These measures include but are not limited to covering
bare soil, placement of washable doormats, more frequent washing of
hands and toys, and access restrictions. Access restrictions should
only be used if there are other parts of the yard that are available to
the residents.
EPA is planning to develop a guidance document to accompany the
final regulation that will explain these recommended responses to lead-
based paint hazards and the soil-lead level of concern in greater
detail.
It is important to note that the proposed standards are intended to
be used prospectively. That is, they should be used to identify
properties that present risks to children before children are harmed.
These standards would not be appropriate to use when identifying the
sources of exposure for a lead-poisoned child. When a property is being
evaluated in response to the identification of a lead-poisoned child,
the risk assessor in cooperation of a local public health official
should identify and consider all sources of lead exposure.
The proposed TSCA section 403 standards are based on the best data
and analytical tools currently available to the Agency. EPA expects
that the standards may need to be modified over time as better tools
and data become available. The Agency, however, believes that issuing
standards now, even in the face of considerable uncertainty, is
consistent both with the public's need for information from EPA and the
statutory intent to develop standards with currently available
information.
In this document, EPA is also proposing amendments to the existing
rules issued under TSCA sections 402 and 404, including: (1)
Requirements for interpreting the results of sampling of lead materials
for purposes of assessing risk; (2) clearance standards for cleaning up
hazardous lead dust of 50 <greek-m>g/ft<SUP>2</SUP> for uncarpeted
floors, 250 <greek-m>g/ft<SUP>2</SUP> for interior window sills, and
800 <greek-m>g/ft<SUP>2</SUP> for window troughs; (3) amendments to the
dust and soil sampling locations in the risk assessment work practice
standards at 40 CFR 745.227; (4) work practice standards for the
management of soil removed during a soil abatement; and (5) amendments
to the State and Tribal program authorization requirements under 40 CFR
part 745, subpart Q.
C. Uses of the Standards
The TSCA section 403 standards support implementation of key
provisions of Title X which would require action with respect to lead-
based paint hazards by both private parties and the government,
principally for EPA and programs under the auspices of the Department
of Housing and Urban Development (HUD). These provisions include
eligibility criteria for the Department of Housing and Urban
Development's (HUD) lead hazard control grant program (section 1011 of
Title X), which authorizes grants to clean up lead-based paint hazards.
In addition, Title X imposes certain requirements on owners of HUD-
associated housing (section 1012 of Title X) and Federal agencies
selling residential properties they own to evaluate and control lead-
based paint hazards (section 1013 of Title X). Sellers and lessors of
housing built before 1978 have obligations to disclose known lead-based
paint and lead-based paint hazards prior to sale or rental (section
1018 of Title X). Regulations also impose requirements to use certified
workers for evaluation and cleanup of
[[Page 30304]]
lead-based paint hazards (section 402 of TSCA). These provisions are
described in more detail in Unit VIII. of this preamble.
EPA does note, however, that the regulations would not require
private property owners to undertake hazard control actions when
hazards are identified. Instead, EPA expects that concern about
children's health, liability exposure and other market forces will
provide incentive for property owners to take action voluntarily.
In addition to their applicability within Title X, EPA anticipates
that the TSCA section 403 regulations will have broader uses. The
proposed regulations will play a significant role in public education,
communicating the Agency's best judgment concerning the identification
of lead-based paint hazards to property owners, State and local
officials, tenants, and other decision-makers. EPA also expects that
public and private institutions may incorporate the standards into
State and local laws, housing codes, and lending and insurance
underwriting standards.
D. Limitations of the Proposed Rule
During the regulatory development process, it became clear that
significant confusion and uncertainty exists about the requirements and
purpose of the TSCA section 403 regulations. To address this confusion
and uncertainty, EPA wishes to highlight the major limitations and
other issues related to the scope and use of today's proposal.
First, this proposal does not establish a new definition for lead-
based paint, defined by statute as paint with lead levels equal to or
exceeding 1.0 milligrams per square centimeter (mg/cm<SUP>2</SUP>) or
0.5 percent by weight (see section 302(c) of the Lead-Poisoning
Prevention Act, 42 U.S.C. 4822(c) and TSCA section 401(9)). Under Title
X, only the Secretary of Housing and Urban Development has the
authority to change the standard for lead-based paint in target housing
(see TSCA section 401(9)). Title IV provides EPA the authority to
change the standard only for lead-based paint in non-residential
applications (e.g., public and commercial buildings, steel structures)
(see TSCA section 401(9)). This proposal does not include any changes
to this statutory definition.
Second, the proposed standards are intended to identify lead-based
paint hazards when the lead-based paint risk assessment is performed.
Because the conditions of lead-based paint and the levels of lead in
dust and soil are constantly changing, the results of the risk
assessment communicate conditions at the time the measurements are
taken and the observations made. The proposed standards do not address
the potential for hazards to develop. EPA recognizes, however, that
potential hazards (e.g., intact lead-based paint on a ceiling) may
become actual hazards as conditions change over time. Periodic
reevaluation of a property would enable a property owner to determine
whether potential hazards have become actual hazards. Recommendations
concerning reevaluation will be provided in a separate guidance
document that EPA is planning to issue.
Third, because the TSCA section 403 standards are established for
the purposes of Title X and TSCA Title IV, they do not apply to housing
and facilities occupied by children built during or after 1978, as well
as some pre-1978 housing that is not included in the definition of
target housing (e.g., 0-bedroom dwellings). EPA recognizes, however,
that property owners and other decision-makers may be concerned about
the presence of elevated levels of lead in dust and soil in housing and
facilities occupied by children not covered by the standards. In such
cases, EPA encourages these owners and decision-makers to use the
standards to help determine whether actions should be taken to reduce
risks to young children.
Fourth, the proposed regulations do not set standards that can be
used to identify housing that is free from risks associated with
exposure to lead. Such standards would be difficult to define,
unworkable in practice, and inconsistent with the intent of Title X.
Virtually all target housing has some lead present in paint, dust, and/
or soil, which, under certain circumstances, may present risk to
children. Furthermore, these risks often will depend on circumstances
that may change quickly, such as the physical condition of the
property. Thus, housing that presents minimal risks when examined may
present substantial risks later.
E. Preamble Overview
The remainder of this preamble consists of eleven units. Unit II.
provides background information, including: a description of the
residential lead-based paint problem; Title X as a legislative
response; key aspects of the regulatory development process; and the
Agency's general standard-setting approach. Unit III. is a section-by-
section review of the proposed regulatory provisions. Unit IV. presents
EPA's interpretation of the statutory authority for the proposed TSCA
section 403 standards, the Agency's policy basis for the proposed
standards, and EPA's decisions for the proposed TSCA section 403
standards. This unit includes a summary of the technical analyses
conducted by the Agency to support these decisions. Unit V. discusses a
range of issues that affected EPA's decision-making during the
regulatory development process. Unit VI. presents EPA's rationale and
decisions for requirements on comparing risk assessment sampling
results to the TSCA section 403 standards. Unit VII. describes the
Agency's rationale and decisions concerning clearance standards and
other amendments to the TSCA section 402 regulations related to work
practice standards and TSCA section 404 regulations concerning EPA
authorization of State and Tribal programs. Unit VIII. describes the
effect that today's proposal will have on other Title X regulations and
programs, and Unit IX. discusses the relationship between the proposed
regulations and other EPA programs. Unit X. provides information on the
public record supporting this regulation (``the docket''). Unit XI.
presents the bibliographic references cited in the preamble, which are
also part of the docket. Unit XII. presents a summary of the regulatory
assessment analyses and Agency determinations conducted in response to
various Federal laws and Executive orders concerning the public health
and economic impact of the proposed regulation.