[Federal Register: January 5, 2001 (Volume 66, Number 4)]
[Rules and Regulations]
[Page 1205-1240]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja01-17]
[[Page 1205]]
-----------------------------------------------------------------------
Part III
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 745
Lead; Identification of Dangerous Levels of Lead; Final Rule
[[Page 1206]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPTS-62156H; FRL-6763-5]
RIN 2070-AC63
Lead; Identification of Dangerous Levels of Lead
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is issuing a final regulation under section 403 of the
Toxic Substances Control Act (TSCA), as amended by the Residential
Lead-Based Paint Hazard Reduction Act of 1992, also known as ``Title X
(ten),'' to establish standards for lead-based paint hazards in most
pre-1978 housing and child-occupied facilities. This regulation
supports the implementation of regulations already promulgated, and
others under development, which deal with worker training and
certification, lead hazard disclosure in real estate transactions,
requirements for lead cleanup under State authorities, lead hazard
evaluation and control in Federally-owned housing prior to sale and
housing receiving Federal assistance, and U.S. Department of Housing
and Urban Development (HUD) grants to local jurisdictions to perform
lead hazard control. In addition, today's action also establishes,
under authority of TSCA section 402, residential lead dust cleanup
levels and amendments to dust and soil sampling requirements and, under
authority of TSCA section 404, amendments to State program
authorization requirements. By supporting implementation of the major
provisions of Title X and by providing guidance to all owners and
occupants of pre-1978 housing and child-occupied facilities, this
regulation will help to prevent lead poisoning in children under the
age of 6.
DATES: This final rule is effective on March 6, 2001. This rule shall
be promulgated for purposes of judicial review at 1 p.m. eastern
daylight time on February 5, 2001.
FOR FURTHER INFORMATION CONTACT: For general information contact:
Barbara Cunningham, Director, Office of Program Management and
Evaluation, Office of Pollution Prevention and Toxics (7401),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW,
Washington, DC 20460; telephone number: 202-554-1404; e-mail address:
TSCA-Hotline@epa.gov.
For technical information contact: Dave Topping, National Program
Chemicals Division (7404), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 260-7737; e-mail address:
topping.dave@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be affected by this action if you must comply with other
Title X regulations that are affected by today's action. The following
table identifies potentially affected categories and entities:
----------------------------------------------------------------------------------------------------------------
NAICS or
Category Examples of Entities SIC codes Effect of Regulation
----------------------------------------------------------------------------------------------------------------
Lead abatement professionals Workers, supervisors, 562910 Provides standards that risk
inspectors, risk assessors, assessors would use to
and project designers identify hazards and
engaged in lead-based paint evaluate clearance tests;
activities. helps determine when
certified professionals
would need to be employed
to perform lead cleanup
----------------------------------------------------------------------------------------------------------------
Training providers Firms providing training 611519 Provides standards that
services in lead-based training providers would
paint activities have to teach in their
courses
----------------------------------------------------------------------------------------------------------------
Federal agencies that own residential 92511, Standards identify hazards
property 92811 that Federal agencies or
purchasers of Federal
property would have to
abate in pre 1960 housing
prior to sale, under Title
X, section 1013.
----------------------------------------------------------------------------------------------------------------
Property owners that receive assistance State and city public 53110, Standards identify hazards
through Federal housing programs housing authorities, owners 531311 that property owners would
of multifamily rental have to abate or reduce as
properties that receive specified by regulations
project-based assistance, issued by HUD under
owners of rental properties authority of Title X,
that lease units under section 1012
HUD's tenant-based
assistance program
----------------------------------------------------------------------------------------------------------------
Property owners Owner occupants, rental 531110, Standards identify hazards
property owners, public 531311 that, when known, would
housing authorities, have to be disclosed under
Federal agencies EPA/HUD joint regulations
promulgated under Title X,
section 1018
----------------------------------------------------------------------------------------------------------------
This listing is not intended to be exhaustive, but rather provides
a guide for entities likely to be affected by this action. Other types
of entities not listed in the table in this unit could also be
affected. To determine whether you or your business is affected by this
action, you should carefully examine the applicability provisions in
relevant regulations. If you have any questions regarding the
applicability of this action to a particular entity, consult the
technical person listed in the FOR FURTHER INFORMATION CONTACT section.
B. How Can I Get Additional Information, Including Copies of this
Document or Other Related Documents?
1. Electronically. You may obtain electronic copies of this
document, and certain other related documents that might be available
electronically, by
[[Page 1207]]
going directly to the Internet Home Page for this regulation at http://
www.epa.gov/lead/leadhaz.htm and selecting the desired document. You
can also go directly to the Federal Register listings at http://
www.epa.gov/fedrgstr/ to obtain a copy of this final rule.
2. In person. The Agency has established an official record for
this action under docket control number OPPTS-62156. The official
record consists of the documents specifically referenced in this
action, any public comments received during the comment period, and
other information related to this action. This official record includes
the documents that are physically located in the docket, as well as the
documents that are referenced in those documents. The public version of
the official docket, which includes printed, paper versions of any
electronic comments submitted during the comment period, is available
for inspection in the TSCA Nonconfidential Information Center, North
East Rm. B-607, Waterside Mall, 401 M St., SW., Washington, DC. The
Center is open from noon to 4 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Center is (202) 260-7099.
II. Overview
A. Introduction
The Title X term ``lead-based paint hazard'' is intended to
identify lead-based paint and all residential lead-containing dusts and
soils regardless of the source of the lead, which, due to their
condition and location, would result in adverse human health effects.
One of the underlying principles of Title X is to move the focus of
public and private sector decision makers away from the mere presence
of lead-based paint, to the presence of lead-based paint hazards, for
which more substantive action should be undertaken to control
exposures, especially to young children. This regulation establishes
hazard standards for residential lead-based paint, and residential dust
and soil lead. The hazard standards for these three media,
collectively, are statutorily defined as lead-based paint hazards.
B. Summary of Statutory Authority
The Residential Lead-Based Paint Hazard Reduction Act of 1992 was
enacted as Title X of the Housing and Community Development Act of
1992. Title X establishes a comprehensive Federal program for reducing
the risks from lead-based paint and certain lead hazards. The Title X
program primarily gives authority to HUD and EPA, but affects a number
of other Federal agencies. Among other things, Title X amended TSCA by
adding TSCA Title IV, which specifically gives regulatory authority to
EPA to cover, among other things, training of workers who deal with
lead-based paint hazard abatement, the appropriate form of State and
Tribal lead programs, and the identification of dangerous levels of
lead. Title IV includes section 403. EPA is promulgating the standards
for lead-based paint hazards under the authority of TSCA section 403,
15 U.S.C. 2683.
Section 403 requires EPA to promulgate regulations that ``identify
. . . lead-based paint hazards, lead-contaminated dust, and lead-
contaminated soil'' for purposes of the entire Title X. Lead-based
paint hazards, under TSCA section 401 (15 U.S.C. 2681), are defined as
conditions of lead-based paint and lead-contaminated dust and soil that
``would result'' in adverse human health effects (15 U.S.C. 2681(10)).
Lead-based paint is defined by statute as paint with lead levels equal
to or exceeding 1.0 milligrams per square centimeter (mg/
cm2) or 0.5% by weight (see section 302(c) of the Lead-
Poisoning Prevention Act (42 U.S.C. 4822(c)) and TSCA section 401(9)
(15 U.S.C. 2681(9)). TSCA section 401 defines lead-contaminated dust as
``surface dust in residential dwellings'' that contains lead in excess
of levels determined ``to pose a threat of adverse health effects'' (15
U.S. C. 2681(11)). TSCA section 401 defines lead-contaminated soil as
``bare soil on residential real property that contains lead at or in
excess of levels determined to be hazardous to human health'' (15
U.S.C. 2681(12)).
EPA is also promulgating amendments to the regulations for lead-
based paint activities under the authority of TSCA section 402 (15
U.S.C. 2682) and to the State and Tribal program authorization
requirements under authority of TSCA section 404 (15 U.S.C. 2684).
These changes are needed to ensure consistency among the various
regulations covering lead risks under TSCA. Section 402 requires EPA to
promulgate regulations establishing training and certification
requirements for individuals and firms engaged in lead-based paint
activities. Lead-based paint activities, in the case of target housing
and child-occupied facilities, include risk assessment, inspection and
abatement. See TSCA section 402(b)(1); 15 USC 2682(b)(1). To clarify
this definition, EPA notes that lead-based paint activities do not
include interim controls. These regulations ``shall contain standards
for performing lead-based paint activities, taking into account
reliability, effectiveness, and safety'' (15 U.S.C. 2682(a)(1)).
Section 404 requires States and Tribes seeking to administer and
enforce standards, regulations, or other requirements under section
402, 406, or both to seek authorization from EPA.
C. Guiding Principles
Reducing exposure to lead has been an important issue for EPA for
more than 2 decades. Young children are especially vulnerable to the
toxic effects of lead because their nervous systems are still
developing and they absorb more of the lead to which they are exposed.
Many of the health effects associated with lead are thought to be
irreversible. Moreover, the effects at lower levels of exposure are
often asymptomatic. In light of the impacts on children and the nature
of the health effects, EPA's goal is to eliminate exposure to harmful
levels of lead. This goal has informed Agency actions such as the
decision to remove lead as an additive from gasoline as discussed in
the preamble to the proposed rule (63 FR at 30305).
First and foremost, the Agency faces the difficulty of determining
the level at which to set the standards given the uncertainties in
information on cause and effect--what environmental levels in which
specific medium may actually cause particular blood lead levels that
are associated with adverse health effects. The Agency has tools, which
are only generally consistent, that show that certain increases in
environmental lead levels are associated with certain increases in
blood lead levels. Given the range of uncertainty shown in its analysis
supporting the establishment of a hazard level under this rule, EPA has
developed a technical analysis that considers hazard standards for dust
and soil at the lowest levels at which the analysis shows that across-
the-board abatement on a national level could be justified. EPA
recognizes, however that for any levels of lead in dust or soil
judgment must be exercised as to how to treat the medium, and interim
controls as well as abatement could be effective. In addition, EPA
recommends that organizations and individuals consider some form of
interim control in certain residential areas even where soil lead
levels are below the hazard standard if there is a concern that
children under 6 might spend substantial time in such areas, or there
is potential for that soil to contribute to hazardous lead levels in
play areas or dwellings. While the risks from lead at these lower
levels are less than the hazard level, EPA believes that public health
will be further protected if
[[Page 1208]]
owners and occupants of residential properties are encouraged to take
actions to reduce the potential for lead exposure.
In performing its analyses for this rule, the Agency could not
quantitatively compare interim control strategies with abatement
strategies because there are only limited data available on the
effectiveness of interim controls over extended periods of time, and
those data which are available are not suitable for quantitative
comparisons with abatements. In comparing interim control strategies
with abatement strategies, one must make a number of assumptions
concerning the costs of administrative management, and frequency of
monitoring and renewal over the planning horizon. For the 50-year
planning horizon which the Agency used in its dust and soil analyses,
one would have to compare the time stream of interim control expenses,
for as long as such expenses are necessary, and weigh the possible
differences in potential blood-lead reductions, to make a fair
comparison of abatement and interim control strategies.
Nevertheless, experience with interim control programs is
increasing and certain organizations, particularly public health and
housing agencies, believe they have been able to develop effective
programs for interim controls which achieve virtually the same degree
of risk reduction as do abatement programs, but at much reduced cost.
EPA received comments on this issue during the public comment process.
EPA wishes to encourage the continuing evaluation of such efforts
because resources to deal with hazardous lead levels are often limited,
and strategies which achieve comparable risk reduction, but at much
reduced cost, have the potential to protect more children by allocating
the limited resources more effectively. EPA believes that public and
private organizations should evaluate both interim control and
abatement strategies in determining the most effective course of action
when dealing with dust and soil hazards.
In addition, EPA recommends that organizations and individuals
consider some form of interim control response action in certain areas
even where soil lead levels are below the hazard standard. This would
apply if there is a concern that children under the age of 6 spend
substantial time in such areas, or there is potential for that soil to
contribute to hazardous lead levels in play areas or dwellings. While
the risks from lead at these lower levels are less than at the hazard
level, EPA believes that public health will be further protected if
owners and occupants of residential properties are aware of such
contamination and are encouraged to take actions to reduce the
potential for lead exposures.
For determining a paint lead hazard EPA faced a data problem
different from that faced with respect to dust and soil hazards. For
dust and soil, EPA had substantial raw data on environmental levels and
blood lead levels, even though it faced substantial uncertainty in
correlating the levels. For lead-based paint, as discussed later in
this preamble, the Agency had no data by which it could select a
threshold below which the paint would not be a hazard. EPA, therefore,
could not apply the same analysis for the paint hazard determination as
it did for the dust and soil hazard determinations. Comments indicated
that even very tiny amounts of deteriorated lead-based paint are
sufficient in certain circumstances to result in adverse health
effects. Accordingly, EPA has generally designated any amount of
deteriorated paint as a lead-based paint lead hazard. Nevertheless, as
with dust and soil hazards, EPA would not recommend full scale
abatement be undertaken for all paint lead hazards. Instead, the Agency
wishes the public to be aware that any deteriorated lead-based paint
presents enough of a risk that it should be stabilized and carefully
monitored if it is not abated.
Controlling exposure to lead in the residential environment
presents EPA with challenges that, in important respects, are different
from and often more complex than those the Agency deals with in other
regulatory contexts. Among the challenges of this regulation is that it
requires the Agency to address exposure from the past use of products
that contained lead rather than current products and/or processes that
introduce lead into the environment. Assuming that there are safe and
available substitutes, the government can eliminate lead from an
existing product if the risk warrants such removal (e.g., gasoline,
solder for water pipes and food cans). Removing lead that is already in
the environment is far more difficult. It would have been better that
lead never found its way into paint that exists today in approximately
64 million homes. However, since it is so pervasive, EPA is faced with
a number of dilemmas. First, the number of properties that have some
form of lead is enormous. However, the number of buildings with lead
paint an dust that present a hazard is, relatively, much lower. The
Agency must therefore distinguish which of these lead conditions need
to be controlled. Because there is a great deal of variability among
properties containing lead paint, our ability to identify which
properties present risks is limited. Moreover, the exposure risk to
individuals, even if there were not such a large number of affected
properties, can be compounded by child-specific factors (e.g., hand-to-
mouth behavior, pica, nutrition, hygiene).
In addition, the success of the program will largely rely upon the
voluntary participation of States and Tribes, as well as counties and
cities, to implement the program and upon property owners to follow the
standards and EPA's recommendations. If EPA were to set unreasonable
standards (e.g., standards that would recommend removal of all lead
from paint, dust, and soil), States and Tribes may choose to opt out of
the Title X lead program and property owners may choose to ignore EPA's
advice, believing it lacks credibility and practical value.
Consequently, EPA needed to develop standards that would protect
children without wasting resources by chasing risks of negligible
importance and that would be accepted as reasonable by States, Tribes,
local governments, and property owners.
Three other considerations also merit the public's attention.
First, as noted, the standards are designed to focus resources on the
worst problems. If property owners are able to address less pressing
problems (e.g., deteriorated paint below the minimum area threshold),
EPA encourages them to take action. EPA also encourages States, Tribes,
and local governments to adopt more stringent standards if local
circumstances warrant such action.
Second, the standards alone cannot solve the lead problem. They are
part of a broader program designed to educate the public and raise
public awareness, empower and protect consumers, and provide helpful
technical information that professionals can use to identify and
control lead hazards. EPA has developed and implemented an active
public education and outreach program consisting of a toll-free hotline
(1-800-424-LEAD) co-sponsored with HUD and U.S. Centers for Disease
Control and Prevention (CDCP), public service announcements, poster
campaigns, distribution of a parent's guide through grocery stores,
slides in movie theaters, and an outreach campaign with the National
Parent Teachers Association, the National Association of Child Care
Providers, and public libraries.
Consumer empowerment and protection efforts include the hazard
disclosure regulations jointly issued with HUD training and
certification
[[Page 1209]]
standards for individuals and firms engaged in lead-based paint
activities, and the pre-renovation education rule that requires
renovation and remodeling contractors to provide the EPA pamphlet
``Protect Your Family from Lead in Your Home'' to occupants prior to
the start of renovation and remodeling projects. In addition, under
section 402 of TSCA, EPA is currently developing training and
certification requirements for renovation and remodeling contractors
whose activities may create lead hazards.
EPA and other Federal agencies continue to conduct field studies to
identify and evaluate lower cost products and technologies for
evaluating and controlling lead-based paint hazards. The findings of
these studies are distributed to professionals through our lead
hotline, EPA's website (www.epa.gov/lead) and at other agencies'
websites, and through on-going contact with trade and professional
associations. The standards, combined with these other efforts, provide
a comprehensive program designed to reduce and eventually help
eliminate lead in residential paint, dust, and soil as a cause of
childhood lead poisoning.
Third, these standards are based on the best science available to
the Agency. EPA recognizes, however, that the science is constantly
developing and with it our understanding of the relationship between
lead in the environment and human exposure and the relationship between
exposure and health impacts. If new data become available (e.g.,
empirical data showing that very small amounts of deteriorated paint
pose a serious health risk or data showing that hazard control
activities are more effective at reducing long-term dust-lead levels
than assumed by EPA), the Agency will consider changing the standards
to reflect these data. If the data indicate that the standards should
be changed and they meet EPA's quality criteria, the Agency will
consider publishing the data for public review and comment and amending
today's regulation.
D. Regulatory Approach
1. Uniform national standards. EPA is issuing uniform national
standards in this rule. The rationale for adopting uniform national
standards is found on pages 63 FR 30307 to 30308 of the preamble to the
proposed rule. EPA summarizes this reasoning in the following
paragraphs.
EPA stated that the relationship between environmental lead levels
(from paint, dust, and soil) and their effects on the health of exposed
children, which forms the basis for this rule, is complex, and is
dependent upon numerous site-specific and child-specific factors. Where
more site-specific factors can be considered on a smaller (residence or
community) scale, estimates of the effects of environmental levels on
blood lead can be more accurate. The data needed, however, are not
available for communities nationwide. In contrast, national data on
lead in paint, dust, and soil are currently available. Even if data
were available, the residence or community scale standards would still
not account for variability in exposure influenced by child-specific
factors (e.g., hand-to-mouth behavior, hygiene, and nutrition).
Detailed evaluations that considered the specifics of individual
communities would generally require information for each residence to
evaluate the impact of environmental lead on children.
In addition, uniform national standards provide a fixed basis of
comparison for all homes. National standards can be used to compare
properties and establish priorities. This would be extremely difficult
to accomplish if there were the numerous standards specific to
individual communities.
EPA also took into account that certain segments of the population
have a higher incidence of elevated blood-lead levels (e.g., minority
and low-income children). Because estimates of the relationship between
environmental lead levels and children's health effects are not
sufficiently refined to distinguish relationships for particular
subsets of the general population of children, EPA is choosing to
emphasize program implementation (e.g., training, education, and
environmental justice grants), which the Agency considers a more
effective and simpler approach to address vulnerable communities rather
than setting community-specific standards. EPA preferred to establish a
simple, set of standards that could easily be adopted by States,
allowing them to tailor the standards, should they so choose. This
allows States greater flexibility to establish and implement their
programs while a national, baseline level of protection to children is
maintained.
2. Media-specific standards. A second basic issue that shaped EPA's
standard-setting approach involves the fact that a child's total lead
exposure is the sum of contributions from numerous sources, including
paint, dust, soil, and others. Specifically, EPA had to decide whether
to set separate, independent standards for paint, dust, and soil or to
integrate the standards.
Under the first option, EPA would establish a fixed standard for
each medium without considering the varying conditions in the other
media. For example, the soil standard would remain constant, regardless
of whether dust lead levels were high or low. The chief advantage of
this option is that the standards are simple to understand and use.
A potential disadvantage of this approach is that a standard could
be established for a particular medium that does not consider the total
exposure of a child (i.e., exposures from all other media). To address
this potential shortcoming, the Agency considered candidate sets of
standards for dust, lead, and paint together so that its comparisons of
candidate standards reflected exposures to all media. Consequently, the
standards, although they are medium-specific numbers will effectively
identify hazards as long as all media are evaluated and compared to the
standards.
Under the second option, EPA would set standards to account for
total lead exposure from all media. Under a joint standard, the
standard for each medium would vary, depending on the conditions in the
other media. For a graphical [illustration of this option, see page
30308 of the preamble to the proposed rule. The major advantage of the
joint standards is that they avoid anomalous situations. For example,
it stands to reason that if both dust and soil measurements are just
below the hazard levels--35 g/ft2 on the floor and
1,175 parts per million (ppm) in the non-play area--the situation is
more dangerous than if one measurement is above the hazard level--e.g.
1,225 ppm for soil--and floor dust is at zero. Yet the first set of
measurements would not constitute a hazard and the second set would. In
these circumstances, joint standards may better reflect the total
exposure and risk. Furthermore, for this option to be truly effective,
EPA would need to know the levels from all sources of lead exposure and
how they relate to blood lead levels individually and in various
combinations. EPA, currently, lacks the analytical tools to support
selection of joint standards. In addition, EPA is endeavoring to set
the media specific hazard standards low enough that hazardous
situations will not occur if both soil and dust are just below the
standards. In such a case, the media specific standards could be
overinclusive. The Agency, however, believes that this approach is
appropriate to protect public health. Accordingly, in this rule EPA is
establishing media-specific standards. Additional explanation for this
decision
[[Page 1210]]
can be found on pages 30308 and 30309 of the preamble to the proposed
rule.
E. Applicability and Uses of the Standards
The standards established in this rule apply to target housing
(i.e., most pre-1978 housing) and child-occupied facilities (pre-1978
non-residential properties where children under the age of 6 spend a
significant amount of time such as daycare centers and kindergartens).
The standards are intended to be used prospectively. That is, they
should be used to identify properties that present risks to children
before children are harmed. This, of course, would not prevent them
from being used retrospectively in the case of environmental
intervention blood lead investigations and clearance of resulting lead
hazard control activities.
These standards are not appropriate as the sole source of
information to use when identifying the source of exposure for a lead-
poisoned child. When a property is being evaluated in response to an
identification of a lead-poisoned child, the risk assessor in
cooperation with local public health officials should identify and
consider all sources of lead exposure. For example, a risk assessor
should consider lead in drinking water as well as the presence of any
amount of deteriorated lead-based paint.
Within the scope of Title X, these regulatory standards will help
support and implement major provisions of the statute. They will be
incorporated into the risk assessment work practice standards,
providing the basis for risk assessors to determine whether lead-based
paint hazards are present. By helping to determine when a hazard is
present, the standards will help determine when a hazard control
activity must be performed by certified personnel. EPA further notes
that only abatement of lead-based paint hazards specifically hazardous
lead-based paint, dust-lead hazards or soil-lead hazards identified in
40 CFR 745.65 requires certified personnel. This is because
``abatement'' is defined in 40 CFR 745.223 as ``measures designed to
permanently eliminate lead-based paint hazards.'' Thus, permanent
elimination of lead-based paint, and dust or soil lead would not
require the use of certified personnel unless lead-based paint hazards
are present in those media.
States and Tribes wishing to obtain or retain authorization to
administer and enforce training and certification programs must
incorporate hazard standards as protective as the standards in this
rule. Provisions for State and Tribal authorization are described at 40
CFR part 745, subpart Q. These standards will also help property owners
comply with section 1018 by establishing what conditions must be
disclosed to prospective purchasers and renters as lead-based paint
hazards prior to the sale or rental of target housing. HUD, the
Department of Defense (DoD), and other Federal agencies will use these
standards in implementing or overseeing the evaluation and control of
hazards in Federally-assisted housing and Federally-owned housing prior
to disposition. (24 CFR part 35)
Under section 1018 of Title X (42 U.S.C. 4852d), EPA and HUD have
jointly developed regulations requiring a seller or lessor of most pre-
1978 housing to disclose the presence of any known lead-based paint and
lead-based paint hazards to the purchaser or lessee (24 CFR part 35,
subpart A; 40 CFR part 745, subpart F). When these section 403 rules
become effective, lead-based paint hazards in lead paint, dust or soil
will need to be disclosed. EPA further notes, however, that under the
section 1018 rules, the seller or lessor also must provide the
purchaser or lessee any available records or reports ``pertaining to''
lead-based paint, lead-based paint hazards and/or any lead hazard
evaluative reports available to the sellor or lessor (section
1018(a)(1)(B). See 40 CFR 745.107(a)(4). Accordingly, if a seller or
lessor has a report showing lead is present in levels that would not
constitute a hazard, that report must also be disclosed. Thus,
disclosure is required under section 1018 even if dust and soil levels
are less than the hazards. EPA notes, however, that with respect only
to leases of target housing, disclosure is not required in the limited
circumstance where the housing has been found to be lead-based paint
free by a certified inspector (24 CFR 35.82; 40 CFR 745.101), although
voluntary disclosure of such certifications is encouraged.
Beyond the scope of Title X, these standards will guide the control
of lead-based paint hazards in the nation's housing stock.
Although other regulations (e.g., hazard evaluation and control in
housing receiving Federal assistance and Federally-owned housing prior
to sale) may require property owners to evaluate properties for the
presence and/or control of lead hazards, today's action does not
contain such requirements. Specific requirements are determined by the
particular State, Federal, and local government regulations which
mandate actions when health hazards are found in target housing or
child-occupied facilities. EPA, however, strongly recommends that
property owners or other decision makers take appropriate actions to
reduce or eliminate hazards. Finally, the standards provide property
owners and other decision makers with the Federal government's best
judgement concerning lead dangers in residential paint, dust, and soil.
The standards were established assuming that property owners and
other decision makers would identify and control hazards in all three
media (i.e., paint, dust, and soil). Failure to take a multimedia
approach may not provide adequate protection to children. First, the
protectiveness of the standards assumes that all media will be
appropriately addressed. Second, failure to address one or more medium
leaves children at risk from exposure to lead in media that are not
addressed. Third, failure to address one or more media reduces the
effectiveness of hazard control actions that are taken due to
recontamination of one media from lead in another. Fourth, the Agency
believes that soil can be a source of exposure whenever it is
accessible for either incidental ingestion or tracking into a home, and
that while grass and other coverings may be effective in significantly
reducing potential exposures, such coverings must be maintained in
order to provide continuing protection.
F. Summary of the Final Rule
1. Hazardous lead-based paint (Sec. 745.65(a)). The hazard standard
for lead-based paint, called the ``paint lead hazard,'' is any of the
following:
a. Any lead-based paint on a friction surface that is subject to
abrasion and where the lead dust levels on the nearest horizontal
surface underneath the friction surface are equal to or greater than
the dust hazard levels.
b. Any damaged or otherwise deteriorated lead-based paint on an
impact surface that is caused by impact from a related building
component.
c. Any chewable lead-based paint surface on which there is evidence
of teeth marks.
d. Any other deteriorated lead-based paint in residential buildings
or child-occupied facility or on the exterior of any residential
building or child-occupied facility.
The purpose of identifying almost all deteriorated lead-based paint
as a paint lead hazard is to alert the public to the fact that all
deteriorated lead-based paint should be addressed--through use of paint
stabilization or interim controls. Something less than abatement and
certified personnel, however, would be needed to undertake interim
controls or to abate lower levels of deterioration.
[[Page 1211]]
Two existing HUD and EPA rules provide the applicable standards: HUD
rules under sections 1012 and 1013 of Title X published on September
15, 1999 (61 FR 50140), and EPA work practice rules under section 402
of TSCA published on August 29, 1996 (61 FR 45778) (FRL-5389-9). In
general, these rules provide that occupant protection procedures,
clearance testing, use of certified personnel or other similar
specialized lead hazard control practices and procedures are not
required if one or more of the following conditions exist:
a. Two square feet or less of deteriorated lead-based paint in a
room.
b. Twenty square feet or less of deteriorated exterior lead-based
paint;
c. Ten percent of the total surface area on an interior or exterior
type of component with a small surface area consist of deteriorated
lead-based paint.
2. Dust standards. Today's regulation includes two standardsfor
dust: hazard levels for floors (including carpeted floors) and interior
window sills (Sec. 745.65(b)) and clearance standards for floors
(including carpeted floors), interior window sills, and window troughs
(Sec. 745.227(e)(8)(viii)). The dust-lead hazard standards are 40
g/ft2 for floors based on a weighted average of all
wipe samples and 250 g/ft2 for interior window
sills based on a weighted average of all wipe samples. The weighted
average, or weighted arithmetic mean, means the arithmetic mean of
sample results weighted by the number of subsamples in each sample. Its
purpose is to give influence to a sample relative to the surface area
it represents.
The clearance standards for dust following an abatement are 40
g/ft2 for floors, 250 g/ft2 for
interior window sills, and 400 g/ft2 for window
troughs. The dust-lead level must be less than the applicable standard
for the surface to pass clearance. Clearance standards are used to
evaluate the effectiveness of cleaning following an abatement, and EPA
may also use these standards in future rulemakings to evaluate the
effectiveness of cleaning following a renovation and remodeling
project. Properties that undergo abatement must pass clearance
according to the work practice standards for abatement found at 40 CFR
745.227. If a property fails clearance, it must be recleaned until it
passes, although it is not automatically necessary to reclean the
entire property when clearance fails, such as when some of the visual
and dust-testing clearance results have indicated that portions of the
property are already cleared.
3. Soil standards. Today's regulation establishes the following
standards for bare residential soil: a hazard standard of 400 ppm by
weight in play areas based on the play area bare soil sample and an
average of 1,200 ppm in bare soil in the remainder of the yard.based on
an average of all other samples collected. See Sec. 745.65(c). The
final rule also identifies lead-contaminated soil as soil with levels
equal to or greater than these soil-lead hazard standards.
Property owners and other decision makers should implement
effective measures to reduce or prevent childrens' exposure to lead in
soil that exceeds these levels. These measures may incorporate, but are
not limited to, interim controls that include covering bare soil and
placement of washable doormats in entryways. The need for more
permanent controls should be determined with consideration of local
conditions and usage patterns, the relative risks from different lead
sources, and the potential for exposures to change over time.
4. Summary of other actions. Today's rule also amends existing
regulations for lead-based paint activities including:
a. Requirements for interpreting the results of a lead-based paint
risk assessment sampling for purposes of determining if lead-based
paint hazards are present.
b. Changes to the risk assessment work practice standards at 40 CFR
745.227 to require testing of all deteriorated paint on surfaces with a
distinct painting history to determine if the paint is lead-based.
c. Changes to the dust and soil sampling locations in the risk
assessment work practice standards at 40 CFR 745.227.
d. Work practice standards for the management of soil removed
during an abatement.
e. Amendments to the State and Tribal program authorization
requirements under 40 CFR part 745, subpart Q; and
f. Amendment to the definition of ``abatement'' at 40 CFR 745.223
to make it clear that abatement does not include removal of paint,
dust, and soil unless lead-based paint hazards are present in those
media.
G. Limitations of the Hazard Standards
As stated in the proposed rule (63 FR at 30304), there is
significant confusion about the requirements and purpose of the TSCA
section 403 regulations. Consequently, EPA felt it necessary in the
preamble to the proposed rule to highlight major limitations and other
issues related to the scope and use of the regulation. These statements
continue to apply. To summarize, the regulation does not establish a
new definition for lead-based paint. The hazard standards apply to
conditions observed when the risk assessment was performed. The
standards do not address the potential for a hazard to develop. The
standards apply to target housing, but may be used as guidance for
other residential property. Finally, the standards are intended to
identify dangerous levels of lead, not housing that is free from risks
associated with exposure to lead.
As stated in Unit II.F.3., today's rule establishes two hazard
standards for bare residential soil; 400 ppm for play areas and an
average of 1,200 ppm for the rest of the yard. EPA recommends that
organizations and individuals consider some action in certain areas
even where levels in bare soils are below the hazard standard,
particularly, if there is a concern that children 6 years and under
might spend substantial time in such areas, or if there is concern that
the bare soil in such areas may contribute to lead levels in the
dwelling, or in the play areas. However, this rule does not mandate
that any action be implemented when levels are found to be below the
lead hazard standard. Moreover, the kind of response that organizations
and individuals might consider could include modest actions such as
planting grass (or other ground cover) to more extensive actions such
as covering the bare soil with several inches of clean fill.
As indicated in Unit II.E., it is also important to emphasize that
this rule only applies to pre-1978 target housing and certain child-
occupied facilities, and that these standards were not intended to
identify potential hazards in other settings. If one chooses to apply
the hazard level to situations beyond the scope of Title X, care must
be taken to ensure that the action taken in such settings is
appropriate to the circumstances presented in that situation, and that
the action is adequate to provide any necessary protection for children
exposed. See also Unit IV.D. for a discussion regarding the
relationship of the soil hazard standard to Superfund soil cleanup
standards.
H. Preamble Overview
The remainder of this preamble consists of four units. Unit III.
presents an explanation of the Agency's decisions. It includes a
summary of the proposal, identifies the major changes between the
proposed and final rules, and explains the changes. Unit IV. presents a
discussion of some of the more significant issues raised by the public
comments. Unit V. contains the
[[Page 1212]]
references for sources used in this preamble. Unit VI. is the
regulatory assessment unit, which deals with the Federal requirements
for agency rulemaking that are imposed by various statutes and
executive orders. Unit VII. discusses the Congressional Review Act
requirements.
III. Explanation of the Agency's Decisions
A. Summary of the Proposed Regulation
EPA published the proposed regulations on June 3, 1998 (63 FR
30302) (FRL-5791-9). The proposed standard for hazardous lead-based
paint was lead-based paint in poor condition, defined as more than 10
ft2 of deteriorated lead-based paint on exterior components
with large surface areas, more than 2 ft2 of deteriorated
lead-based paint on interior components with large surface areas, or
deteriorated lead based paint on more than 10% of the total surface
area of interior or exterior components with small surface areas.
Lesser amounts of deteriorated paint were considered de minimis levels
and were not considered hazards. The proposed standard for a dust lead
hazard was the average level of lead in dust that equals or exceeds 50
g/ft2 on uncarpeted floors and 250 g/
ft2 on interior windows sills. The proposed standard for
soil-lead hazard was lead that equals or exceeds 2,000 ppm based on a
yard-wide average soil-lead concentration. A soil-lead level of
concern, proposed to be 400 ppm, was included in draft guidance but not
in the proposed regulation. The statutory basis for the level of
concern was the section 403 requirement that EPA identify ``lead-
contaminated soil,'' which the Agency interpreted to be a level less
than the soil-lead hazard. EPA used the term ``level of concern''
instead of ``lead-contaminated soil. EPA proposed that lead-based paint
hazards be identified by certified risk assessors performing risk
assessments according to the work practice standards at 40 CFR 745.227.
The June 3, 1998 document also proposed amendments to existing
regulations for lead-based paint activities including:
1. Clearance standards for dust following an abatement of 50
g/ft2 for uncarpeted floors, 250 g/
ft2 for interior window sills, and 800 g/
ft2 for window troughs.
2. Requirements for interpreting the results of a lead-based paint
risk assessment sampling for purposes of determining if lead-based
paint hazards are present.
3. Changes to the dust and soil sampling locations in the risk
assessment work practice standards at 40 CFR 745.227.
4. Work practice standards for the management of soil removed
during an abatement; and
5. Amendments to the State and Tribal program authorization
requirements under 40 CFR part 745, subpart Q.
B. Summary of Significant Changes from the Proposed Regulation and
Other Major Decisions
This section of the preamble briefly presents the major changes
between the proposal and final rule. EPA also identifies major
provisions of the proposed regulation that remain unchanged in the
final rule. Unit II.D. of the preamble presents the Agency's
explanation for these decisions.
1. Dust standards. The final rule changes the lead-based paint
hazard standard for dust, known as the dust-lead hazard, and the
standard for dust clearance for floors to 40 g/ft2.
In addition, the dust-lead hazard will apply to all floors, including
carpeted floors. It will not be limited to bare floors. The final rule
does not change the dust-lead hazard for interior window sills. Today's
action lowers the clearance level for window troughs from the proposed
800 g/ft2 to 400 g/ft2. In
addition, the final rule modifies the method for interpreting composite
dust clearance samples. Under the proposed rule, the result of the
composite sample would have been compared to the clearance level
divided by the number of subsamples in the composite. The final rule
requires the result of the composite sample to be compared to the
clearance level divided by half the number of subsamples in the
composite.
2. Soil standards. With respect to the soil standards, there are
several changes from the proposed rule. First, EPA is not establishing
any distinction between lead-contaminated soil (soil lead ``level of
concern'') and soil-lead hazards. Instead, EPA is, in the preamble,
simply identifying lead-contaminated soil as soil with levels equal to
or greater than the soil-lead hazard standards. For purposes of this
rule ``lead-contaminated soil'' is the same as a ``lead-based paint
hazard'' based on soil lead.''
Second, in the final rule EPA is establishing the lead-based paint
hazard standard for bare soil, known as the soil-lead hazard standard,
to have one hazard level for play areas and another for the remainder
of the yard. The proposed rule did not give special attention to play
areas and made the hazard determination based on the whole yard only.
From the proposed 2,000 ppm for bare soil in the entire yard, EPA is
setting a final soil-lead hazard of 400 ppm for bare soil in play areas
and an average of 1,200 ppm for bare soil in the non-play area portion
of the yard.
3. Paint standards. The paint component of the lead-based paint
hazard standards is known as the paint-lead hazard. The paint-lead
hazard consists of three standards: Deteriorated lead-based paint;
lead-based paint on friction and impact surfaces; and lead-based paint
on accessible (chewable) surfaces.
a. Deteriorated paint. EPA considers that, in general, any
deteriorated lead-based paint needs to be addressed and should be
considered a paint-lead hazard. Accordingly, in the final rule the
Agency does not have a de minimis level of deteriorated paint for the
paint-lead hazard. Instead, the final rule simply refers to work
practice and certification regulations issued by HUD and EPA that apply
to dealing with paint-lead hazards. These regulations provide that
occupant protection procedures, clearance testing, use of certified
personnel or other similar specialized lead hazard control practices
and procedures are not required at lesser levels of paint
deterioration. These specific levels of deterioration are (i) Two
square feet or less of deteriorated lead-based paint per room; (ii)
twenty square feet or less of deteriorated exterior lead-based paint;
(iii) ten percent of the total surface area on an interior or exterior
type of component with a small surface area.
b. Friction and impact surfaces. The standard in the final rule for
the paint-lead hazard on friction surfaces is lead-based paint that is
subject to abrasion where the lead dust levels on the nearest
horizontal surface underneath the friction surface are equal to or
greater than the lead-dust hazard levels. The paint-lead hazard for
impact surfaces is any damaged or otherwise deteriorated paint on an
impact surface that is cause by impact from a related building
component. No minimum area threshold of paint deterioration applies to
friction or impact surfaces. In the proposed rule, EPA did not include
a preferred option for these surfaces. The Agency, instead, solicited
public comment on a range of options including: Lead-based paint
regardless of condition on a friction/impact surface; abraded lead-
based paint on a friction/impact surface; and no separate standard.
c. Surfaces accessible for chewing or mouthing. The standard for
the paint-
[[Page 1213]]
lead hazard on accessible surfaces, referred to as ``chewable''
surfaces in the final rule, is any chewable lead-based paint surface on
which there is evidence of teeth marks. No minimum area threshold
applies to deteriorated lead-based paint on accessible surfaces. In the
proposed rule, EPA did not include a preferred option for these
surfaces. The Agency, instead, solicited public comment on a range of
options including: Lead-based paint regardless of condition on interior
window sills up to 5 feet off the floor; and no separate standard for
accessible surfaces. EPA has eliminated the 5-foot requirement.
4. Requiring certified risk assessors to determine the existence of
lead-based paint hazards. The final rule does not include a requirement
that the presence of lead-based paint hazards must be determined by
certified risk assessors following the risk assessment work practice
standards at 40 CFR 745.227.
C. Explanation of the Agency's Decisions
In this section of the preamble, EPA provides its reasons for
choosing the final TSCA section 403 standards for lead-based paint
hazards (which includes paint-lead, dust-lead, and soil-lead hazards)
and its final determination for what constitutes lead-contaminated dust
and residential soil. In addition, EPA provides its reasons for
establishing the clearance levels for household dust--measures of dust
in lead that will show that hazards have been appropriately cleaned.
The choice of the particular methodologies used to develop each of
these standards constitutes another important set of decisions. Hazard
levels for dust and soil were developed using an analysis of risk, the
potential for risk reduction (considering uncertainties in the data and
scientific evidence describing the risks), and the cost of reducing
risk. In determining the paint-lead hazard, EPA has decided that any
deteriorated lead-based paint would result in adverse health effects,
based on information submitted in public comments and other information
in the rulemaking record. The Agency has been unable to determine any
level of deteriorated lead-based paint that should not be considered a
paint-lead hazard.
The general outline of these methodologies is referred to in later
sections of this Unit and, where applicable, incorporates into the
final rule those decisions made in the preamble to the proposed rule.
1. Basis for dust and soil standards. As a preliminary matter, EPA
has found, after considering all significant public comments and all
other information in the rulemaking record, that the legal
interpretations and policy decisions in the preamble to the proposed
rule form the basis for the final decisions discussed in this preamble,
except as indicated below. EPA hereby incorporates, for purposes of
this final rule, the relevant reasoning and analyses from the proposed
preamble, as indicated below. Any modifications to the analyses or
reasoning from the preamble to the proposed rule will be specifically
explained in this preamble, the Reponse to Comment (RTC) document, or
other documents in the record, and are supported by the record for the
final rule.
a. Legal basis. Details of the basic legal structure of Title X and
the legal effect of the issuance of regulations under TSCA section 403,
including the responsibilities of EPA and HUD, are set forth in the
preamble to the proposed rule (63 FR 30306) and need not be repeated
here. There EPA provided a detailed discussion of its views at the time
of the statutory mandate and the statutory criteria, including the
Agency's interpretation of relevant terms and the statutory basis for
the Agency's decision to use particular criteria to develop the
determination for what constitutes lead-contaminated dust and lead-
contaminated soil and the hazard standards for dust, soil and paint at
(63 FR at 30311-30315). EPA has modified some of these interpretations
and retains others, as discussed below.
EPA needs to define three terms under TSCA section 403, ``lead-
based paint hazards,'' ``lead-contaminated dust'' and ``lead-
contaminated soil.'' Lead-based paint hazards consist of lead-
contaminated paint, lead-contaminated dust and lead-contaminated soil
that ``would result'' in adverse health effects.
Section 401(9) of TSCA provides a definition of lead-based paint,
which EPA interprets to be lead-contaminated paint for purposes of this
rule. EPA noted that lead-based paint is not, under the statute, a
risk-based term, but only a benchmark that identifies material subject
to jurisdiction of the authorities of TSCA and Title X. Not all lead-
based paint is a hazard, only that paint which EPA determines ``would
result'' in adverse health effects. EPA has determined, as discussed
below, that the dust and soil levels designated as lead-based paint
hazards are also identified as ``lead-contaminated dust'' and ``lead-
contaminated soil.'' This equating of dust and soil contamination with
``lead-based paint hazards'' caused by dust and soil lead represents a
change from the reasoning in the preamble to the proposed rule. EPA's
reasons for this change are discussed below.
EPA generally refers to the hazards in each of the media as
``paint-lead hazards,'' ``dust-lead hazards'' and ``soil-lead
hazards.''
i. Decision on contaminated dust and soil. While section 403
obligates the Agency to identify lead-based paint hazards, lead
contaminated dust, and lead-contaminated soil, the legislative history
and statutory text are themselves silent on how Congress intended the
Agency to differentiate between the standard for soil contamination
(the level of lead in soil determined to be hazardous to human health),
dust contamination (the level of lead in dust that poses a threat of
adverse health effects in pregnant women or young children), and the
levels of contaminated dust or soil that constitute a lead-based paint
hazard (a condition that would result in adverse human health effects).
Further, the terms ``lead-contaminated dust'' and ``lead-contaminated
soil'' have no significance under either TSCA or Title X except insofar
as the level of contaminated dust or soil constitutes a ``lead-based
paint hazard''.
In the proposed rule EPA considered that, because the statute
required the identification of ``lead contaminated'' dust and soil, the
Agency needed to establish separate levels for these terms than for
``lead-based paint hazards'' resulting from contaminated dust or soil.
Furthermore, EPA proposed, based on the statutory language and the
structure of the statute, that the determination of whether dust or
soil were contaminated required less certainty than whether such dust
or soil constituted a hazard. See 63 FR 30311-12. In the preamble to
the proposed rule EPA set the ``contamination'' levels, then called
``levels of concern,'' at those levels the Agency determined could
result in a 1 to 5% probability of an individual child's exceeding a
blood lead level of 10 g/dL. See 63 FR 30316-30317.
EPA noted, however, that the terms, ``lead-contaminated'' dust and
soil have no direct effect on any activities subject to regulation
under Title X. For example, no certification requirements are imposed
for persons who remove lead-contaminated soil, only for those who
remove soil associated with soil-lead hazards. Because the
contamination levels do not affect other activities under Title X or
TSCA Title IV, EPA proposed not to include them in the regulatory
language. EPA only proposed to adopt in guidance to accompany the final
rule a separate level for lead-contaminated soil of 400
[[Page 1214]]
ppm for the entire yard. EPA did not propose to adopt a separate
standard for contaminated dust, since it found substantial overlap in
its analysis and could not distinguish between dust-lead contamination
and dust-lead hazards.
EPA received a significant number of comments criticizing the
establishment of these ``contamination'' levels, particularly for soil,
primarily because setting two levels for ``contamination'' and
``hazard'' would confuse the public. Other comments claimed EPA had no
authority to establish separate contamination levels, as opposed to
hazard levels.
While the Agency clearly has authority to establish separate levels
for contaminated dust and soil, given the comments, the lack of clear
statutory direction, and the lack of significance of the terms in the
statutory structure, the Agency has determined not to establish any
separate levels for contaminated dust or soil beyond those levels that
constitute a lead-based paint hazard. The Agency believes it sufficient
for purposes of TSCA and Title X to conclude that, at a minimum, the
quantity of lead in dust or soil found to result in conditions that
cause exposure to lead that would result in adverse human health
effects (i.e., constitutes a lead-based paint hazard) is ``lead-
contaminated dust'' and ``lead-contaminated soil,'' respectively.
Accordingly, for purposes of this regulation, the dust and soil levels
designated as lead-based paint hazards are also identified as ``lead-
contaminated dust'' and ``lead-contaminated soil''.
ii. Weight of evidence for dust and soil hazard standards. EPA's
dilemma in determining what constitutes dust-lead and soil-lead hazards
is based on the Agency's recognition that any determination of hazard
requires a great deal of judgment in the case of lead health risks
where, ``as a practical matter, all the scientific evidence is
uncertain to some degree . . .'' (See preamble to the proposed rule at
63 FR 30313.) Making judgments on the science varies to a large extent
with respect to three issues: How to determine which blood lead levels
are truly hazardous; how to interpret the statutory language ``result
in adverse human health effects,'' when uncertainties exist; and how
best to account for uncertainties in the risk analyses that relate
environmental lead levels to blood lead levels and the prevalence data
that is used in this analysis.
The resolution of these issues, at best, produces a continuum
where, at one end, blood and environmental levels exist that everyone
would agree constitute a hazard. At the other end, approaching blood
lead levels in the general population (averaging lower than 5
g/dL) or typical environmental levels (generally, less than
the hazard levels found in this regulation), greater uncertainty exists
on how to model the likelihood of health effects. This is compounded by
having to factor in uncertainties of the effects of both blood lead
levels and the associated environmental levels. This is because, even
if EPA has confidence in the blood lead levels of concern, the Agency
still faces the uncertainty of associating blood lead with
environmental levels in each medium, as well as possible effects from
other sources--for example, water and air emissions.
In addressing the first issue, the Agency has chosen 10 g/
dL as the blood-lead level of concern. This value is equal to the level
of concern recommended by the CDCP and the Agency's reasons for
choosing this value are explained in the next section of this preamble.
As to the second issue, the challenge to the Agency is how to deal
with the statutory criterion, ``would result in adverse human health
effects.'' This is especially problematic because the statutory
mandated activity that requires EPA to choose a cutoff for when this
risk exists does not lend itself to a straightforward empirical
analysis that provides bright lines for decision makers. Even if the
science and environmental-lead prevalence data were perfect, there
would likely be no agreement on the level, or certainty, of risk that
is envisioned in the phrase ``would result in adverse human health
effects.'' Thus, it would not be appropriate to base a lead-based paint
hazard standard on any specific probability of exceeding any specific
blood-lead level.
The Agency therefore elected to take a pragmatic approach to
setting the hazard standards namely, evaluating the amount of risk
reduction that the hazard standards could provide. That is, rather than
trying to select standards based solely on model-based probability
distributions (which is even further complicated by the fact that
different models produce different results), the Agency looked at the
consequences of the standards based on the assumption that, if EPA
calls something a ``lead-based paint hazard,'' all persons would act
rationally in their own best interests and would permanently eliminate
(abate) these hazards before a child is about to become exposed to
them. This is the so-called ``normative'' analysis referred to in the
preambles to the proposed and final rule and discussed in detail in the
economic analyses and preambles for the proposed and final rules.
(EPA's analysis for using this method for determining what constitutes
dust and soil hazards is discussed in detail in the preamble to the
proposed rule at 30312-15. That analysis is incorporated as the final
interpretation of the Agency on this matter and will not be repeated in
great detail here. Later in this preamble, EPA responds to the various
public comments on its analysis of the appropriate method for
determining dust and soil lead-hazards under TSCA section 403.)
Also, identification of lead-based paint hazards under this
regulation is sure to have impacts that could be expensive even though
the range of expenses is, itself, difficult to resolve because of the
uncertainty of individual behavior and the willingness of individuals
to accept risks that EPA may identify. Thus, if EPA were to choose
standards that are too low, the public could be unable to distinguish
between trivial risks at the low levels of lead from the more serious
risks at higher levels. This could result in clean up for little to no
health benefit, or conversely, it could result in almost no clean up
because persons would question the credibility of the ``hazard''
determination. Thus, they may ignore even those high risk situations
that need to be controlled. On the other hand, if the Agency chooses
standards that are too high, actual adverse effects could occur at
levels below that. EPA's dilemma is to draw this line.
Based on the language of section 403, the purposes of Title X and
its legislative history, and basic policy decisions, EPA determined
that it was a reasonable exercise of its discretion to draw this line
based on consideration of the potential for risk reduction of any
action taken (considering uncertainties in the data and the scientific
evidence describing the risks) and whether such risk reductions are
commensurate with the costs of those actions. This is commonly referred
to as cost-benefit balancing. In this rule, EPA used cost-benefit
balancing to assist in identifying the hazard standards. This method
was useful because available data run through various models showed a
range of environmental levels that could be associated with a
particular blood-lead level (the surrogate used to approximate risk)
and the potential reduction in blood-lead concentration/risk that could
result from eliminating or controlling the environmental level. Given
this range, EPA used cost-benefit balancing to assist in selecting the
specific
[[Page 1215]]
standards for this rule from within the range bounded by the results of
the models.
Using this approach, the Agency is better able to deal with the
third issue identified above how to best consider and account for the
strengths and weaknesses of its risk assessment tools and data. For
example, in estimating the number of homes that would be identified as
hazards at various environmental lead levels, the Agency relied upon
data from the HUD National Survey. Obviously, when assessing the
impacts of standards at lower environmental lead levels, estimates are
more likely to be inaccurate due to the presence of outliers in the
data than would be the case in the middle range of the data.
Additionally, the Agency must consider the range of exposures over
which its models relating environmental lead to blood lead can be
expected to perform well and the sensitivity of those models to the
data inputs. By considering at which points in its analyses the data
and models are strongest and weakest, the Agency can identify where in
its analyses the greatest levels of certainty exist. Consideration of
these factors is described in section 3.b., which discusses the
selection of the dust and soil hazard levels.
b. Choosing the lowest candidate hazard standards. While EPA is no
longer considering the determination of what constitutes lead-
contaminated dust or soil to be governed by different standards from
those used in the determination of what constitutes dust or soil-lead
hazards, the analysis used in the proposal to determine the
contamination standards is still relevant to the consideration of
options for the hazard standards. This is because the effect of
choosing the proposed dust and soil lead contamination standards based
on a 1 to 5% probability of an individual child's having blood lead
levels exceeding 10 g/dL was to establish the lowest candidate
hazard standards. In the proposal, this was for dust 50 g/
ft2 on uncarpeted floors and 250 g/ft2
for sills and for soil 400 ppm in the entire residential yard.
Additional analysis, as noted below in discussion of the dust and soil
hazard level determination, was applied to actually develop the hazard
standards.
Furthermore, as noted above, the determination of which blood lead
levels are truly hazardous (the blood lead level of concern) was the
first scientific issue EPA had to decide in selecting dust and soil
lead hazards.
Accordingly, EPA adopts as the basis determining the lowest
candidate standards for the final dust and soil lead hazards the same
policy basis used in the proposal for choosing dust and soil lead
contamination levels--a 1 to 5% probability of a child's developing a
blood lead level of 10 g/dL.
The choice of 10 g/dL is based on a significant body of
scientific evidence, extensively cited in the preamble to the proposed
rule, that shows that a number of significant health effects manifest
themselves in the 10-15 g/dL range. EPA hereby incorporates as
the basis for its final decision on the blood lead concentration of
concern all relevant discussions in the preamble to the proposed rule,
particularly the discussion at 63 FR 30316-17. The Agency's decision is
supported by past statements made by the Clean Air Science Advisory
Committee and is consistent with Federal policy established by the CDCP
and the recommendations of the National Academy of Sciences (NAS). The
Agency wishes to emphasize, as it stated in the proposed rule, that
this choice does not imply that 10 g/dL is a threshold level.
On the contrary, EPA maintains its position that there is no known
threshold for lead. EPA decided not to use a level lower than 10
g/dL because the evidence indicates that health effects at
lower levels of exposure are less well substantiated, based on a
limited number of children, and observation of subtle molecular changes
that are not currently thought to be sufficiently significant to
warrant national concern.
The choice of probability is based on the Agency's interpretation
of the statute and the limits of EPA's analytical tools. The Agency
rejected the lowest possible probability, which is zero. Even without
lead-based paint and lead-contaminated soil and dust, there could be
some small mathematical probability that a child could still have a
blood-lead level equaling or exceeding 10 g/dL. This is
because other sources of exposure (e.g., air, water, diet, and
background levels of lead) remain. Because under the statute EPA may
only account for risks associated with paint, dust and soil, a zero
exceedence probability would not make sense for this rule.
In addition, EPA's assessment for this rule indicates that, as a
practical matter, in the context of establishing on a national level
the initial candidate for the hazard level, the probabilities that
given environmental levels of lead ``would result'' in blood lead
levels of concern, 1% is not distinguishable from 5% in estimating
risks from soil lead. This is because, within the context of the
analyses for this rule, there was substantial overlap in estimates of
risk from soil lead within the 1 to 5% risk range. This overlap is due
to the uncertainty and variability related to EPA's analyses to
associate low levels of lead in a specific environmental medium to
blood-lead concentrations and limited data. For example, results from
models used to relate environmental levels to blood lead levels vary
depending upon what is assumed about the interrelationship between dust
and soil. Also, in the performance characteristics analysis (explained
below), the number of children was small, yielding similar results for
a 1% exceedence as for a 5% exceedence. In effect, EPA is setting the
exceedence probability as close to zero as it is able (within
analytical limits of its analyses) for the effects of lead paint and
lead in dust and soil.
In addition, given the data and analytical tools available to
support this rulemaking, the Agency determined that, as a practical
matter, 1% is not distinguishable from 5%. This overlap is due to the
uncertainty and variability related to any effort to associate low
levels of lead in a specific environmental medium to blood-lead
concentrations and limited data. For example, in the performance
characteristics analysis, the number of children was small, yielding
similar results for a 1% exceedence as for a 5% exceedence. In effect,
EPA is setting the exceedence probability as close to zero as it is
able (within analytical limits of its analyses) for the effects of lead
paint and lead in dust and soil.
At the other end of the range considered by EPA was an exceedence
probability of 10%. With this distribution of risk, a child would have
approximately a 2% chance of having a blood-lead concentration
exceeding 15 g/dL and a less than 1% chance of having a blood-
lead concentration exceeding 20 g/dL, the level at which CDC
recommends medical intervention. In the proposal's discussion of the
contamination standard, the Agency rejected this probability as
presenting exceedingly high risks. For determination of a hazard level,
they would also be excessively high. EPA believes it is inconsistent
with the statute to establish a hazard standard at which significant
numbers of children would need medical treatment.
c. Basis for the dust and soil hazard standards. As explained in
the preamble to the proposal, EPA used cost-benefit balancing to
establish a range of options for hazard standards. EPA then selected
its preferred options based on consideration of relevant factors,
including the assumptions and tools underlying EPA's analysis, health
[[Page 1216]]
protectiveness, cost, and the effect on the overall lead risk reduction
program (63 FR at 30314-30315). The Agency refers the public to the
proposal for the detailed discussion of its reasoning for choosing the
approach to develop the hazard standards. EPA's approach for using cost
benefit analysis is described in the proposed rule and is used for the
final rule.
In this document, EPA wishes to highlight several points that merit
special attention. First, the various modeling techniques used by EPA
only established a range of possible answers upon which the Agency
exercised its administrative judgement. EPA used its quantitative
modeling as a tool to establish the boundaries of the Agency's inquiry,
not as the sole basis for decisions. Because precise values cannot be
assigned to risks (or costs), any cost-benefit balancing is
appropriately used to help select an option within a range for the
hazard standards. The Agency then selected its preferred options, from
within the range bounded by the modeling results, based on
consideration of relevant factors, including the weight of the evidence
of harm, assumptions and tools that underlie EPA's analysis, as well as
other factors, including health protectiveness and total costs.
To support the establishment of a range of options, EPA used a
normative analysis which assumes that all hazards to young children
will be identified and controlled. EPA adopted this approach not only
in view of the obvious imprecision in its ability to estimate how the
public will actually respond in terms of the number and scope of hazard
control interventions that will be implemented in response to the
standards, but also with the objective of allowing Agency decision-
makers to compare costs and benefits. Thus, while the Agency can only
estimate the theoretically possible costs and benefits associated with
each option, not the actual costs and benefits, EPA is confident that
the relative balance of costs and benefits estimated is unlikely to be
very different from the relative balance of actual costs and benefits.
Finally, EPA wishes to emphasize that there is no set way to apply
the balancing of costs and risk reduction. Where standards would
require the high expenditure of resources, the level of risk reduction
(considering both the toxicity of lead and the probabilities of
exposure) and the strength of evidence should be correspondingly high.
On the other hand, if the costs of standards are relatively low, the
level of risk reduction and the strength of the evidence could be less
compelling. As stated in the preamble to the proposed rule and as
adopted in today's final rule, the determination on soil standards
considers the fact that relatively high costs may be incurred to abate
residential soils. Consequently, under a cost-benefit balancing
concept, before selecting an option associated with high costs, EPA
would want a greater measure of confidence that the standard would
result in a higher level of risk reduction.
EPA recognizes that resources for abatement to address lead risks
to children are often limited and that societies often have to set
priorities. Therefore, establishing numerically low national standards
could serve to dilute resources across more properties and communities
instead of steering resources to address situations that present
clearer, more certain risk. Along the same line of reasoning, the
Agency believes that it is sound public policy for the hazard standard
to embody a ``worst first'' approach that will aid in setting
priorities to address the greatest lead risks promptly.
With respect to the paint component, data limitations prevented EPA
from quantifying the costs and benefits of the options considered in
the proposal (as well as for the final rule). Consequently, EPA's
decisions with respect to the options for the paint component involved
a more qualitative judgment on the part of the Agency in the proposal,
as well as in the final rule. Later in this unit, EPA explains its
decision for identifying what constitutes hazardous lead based paint.
2. Technical analyses. To support the development of the dust and
soil hazard standards in this rule, EPA required tools to relate lead
in the environment to blood-lead concentration. As described in the
proposal to the proposed rule, EPA used several methods for this
purpose: a mechanistic model that has been calibrated and validated
with various empirical dataset and which simulates the body's response
to lead exposure, and both modeling and non-modeling analyses of
empirical data from the Rochester Lead in Dust Study. The mechanistic
model is the Agency's Integrated Environmental Uptake and Biokinetic
(IEUBK) model. The empirical data used in the modeling and non-modeling
analysis to support this rule was obtained from a study of lead in
Rochester, New York entitled ``Rochester Lead-in-Dust Study.'' The
preamble to the proposed rule (63 FR 30315 ) contains a general
overview of these tools. Given the uncertainties and limitations
associated with any single approach, EPA decided that it would be
helpful to obtain several perspectives (with different associated
strengths and weaknesses) on the relationship between environmental
lead and blood lead levels.
EPA thoroughly evaluated its choice of methods in response to
public comments and all other information available to the Agency. EPA
has concluded that it is appropriate to use the same methodology for
its final decision. Based upon public comments and all other
information in the rulemaking record, the Agency also recalculated the
numerical results obtained for the proposed rule. These recalculations
did result in some changes to the standards from those proposed, as is
explained below.
a. Initial candidate hazard levels--i. Dust. For development of the
proposed dust-lead contamination level (referred to as the level of
concern) EPA used: A multimedia model based on the data from the
Rochester Lead-in-Dust study and a performance characteristics analysis
of the Rochester data. The reasons for using these models and their
implementation is explained in the preamble to the proposed rule (63 FR
at 30317-30319) in the Units titled ``c. Characterizing individual
risk.'' and ``d. Dust analysis.'' For purposes of this analysis for
determining the initial candidate levels for the final hazard
standards, however, EPA judges it is appropriate to continue to use the
same model, based on the same reasoning.
The multimedia model yielded the following results. The levels of
lead in dust on floors associated with an individual child having from
a 1 to 5% chance of having a blood-lead concentration equal to or
exceeding 10 g/dL range from near zero to 6.7 g/
ft2. The range for dust loadings on window sills is from
near zero to 74 g/ft2.
The performance characteristics analysis yielded the following
results. For floors, dust-lead loadings ranged from 50 g/
ft2 to 400 g/ft2. For interior window
sills, dust-lead loadings ranged from 100 g/ft2 to
800 g/ft2. These ranges were significantly higher
than the ranges yielded by the multimedia approach.
The performance characteristics analysis to support the
determination that 1 to 5% of children would develop blood lead levels
above 10 g/dL remains unchanged for the analysis in this final
rule. The results yielded by the multimedia model would put the
environmental dust-lead levels at which 1-5% of children would develop
blood lead levels above 10 g/dL at near or below background
levels and well below the residual levels that remain after homes have
been well cleaned (i.e.,
[[Page 1217]]
the clearance levels). These results do not seem to make sense to the
Agency since they imply that background levels in well cleaned homes
would still be of concern from a risk perspective. Therefore, based
upon public comments, the Agency reevaluated its analyses.
Based upon this reassessment, EPA decided to make some revisions to
the way it applied the multimedia model so that its results would be
more comparable to the performance characteristics analysis. This was
accomplished by using the same set of parameters (average soil
concentration, dust on floors and sills, and paint conditions) and the
same subset of data from the Rochester Lead-in-Dust Study. Following
these changes, the order of magnitude difference in results between the
original multimedia model and the performance characteristics model
virtually disappears. At 50 g/ft2, the performance
characteristics shows a 7.5% risk of equaling or exceeding 10
g/dL and the multimedia model shows a 5.34% risk. At 40
g/ft2, the performance characteristics shows a 5.1%
risk of equaling or exceeding 10 g/dL and the multimedia model
shows a 5.30% risk. That is, under these analyses, floor dust levels at
40 g/ft2 correspond to 5% and less probability of
blood lead levels exceeding 10 g/dL. Thus, using the revised
model, 40 g/ft2 is the standard that better meets
the criteria spelled out in the Agency's proposal (less than 5%
probability of exceeding 10 g/dL). EPA provides a detailed
description of this revised analysis in the ``Risk Analysis to Support
Standards for Lead in Paint, Dust, and Soil: Supplemental Report.'' EPA
accordingly has chosen 40 g/ft2 as the initial
candidate level for the dust-lead hazard level in today's final rule.
ii. Soil. In the proposed rule, EPA set a ``level of concern''
based on the Agency's IEUBK model and a performance characteristics
analysis of the Rochester data. The reasons for using these models and
their implementation is explained in the preamble to the proposed rule
(63 FR 30317, 30319) in the Units titled ``c. Characterizing individual
risk'' and ``e. Soil Analysis.'' Under the IEUBK analysis soil-lead
concentrations generally at or below 500 parts per million (ppm) would
result in a 1 to 5% probability that a child will have a blood-lead
concentration that equals or exceeds 10 g/dL. The performance
characteristics analysis for soil ranged from 200 ppm to 1,500 ppm
correlated with 1 to 5% of children with elevated blood lead levels
exceeding 10--g/dL. EPA chose 400 ppm as the proposed soil
lead contamination level. EPA adopts that same level as the initial
candidate soil hazard standard for the same reasons as provided in the
preamble to the proposed rule for choosing 400 ppm as the soil
contamination level.
3. Dust and soil hazard levels. The analyses to support selection
of the dust and soil hazard levels included evaluation of the nation-
wide reduction in risk that could potentially result from a set of
hazard standards. EPA measured the change in risk reduction in terms of
an estimated change in the national blood-lead distribution, equated
this change to reductions in several adverse public health outcomes
(e.g., IQ point loss), assigned a value to these reductions, and
compared these public health benefits to the costs of hazard
intervention.
a. Methodology. EPA finds no reason to change its methodology of
using a normative cost-benefit analysis for developing dust-lead and
soil-lead hazards. The Agency, accordingly, adopts the reasoning set
forth in the preamble to the proposed rule for conducting this
analysis. The general overview of the cost-benefit analysis and its use
in decisionmaking is provided in the preamble to the proposal (63 FR at
30319-30320) in the introductory paragraphs to the section entitled
``2. Dust-lead and soil-lead hazard standards''.
The methodology for estimating risk reduction is found in the
section entitled, ``a. Estimating risk reduction.'' (63 FR 30320) and,
partially, in the section entitled ``b. Estimating costs and
benefits.'' (63 FR 30321). Methodology for estimating the monetary
value to be assigned to the value of risk reduction that may be
achieved by actions taken in response to the hazard standards is found
in the section entitled ``b. Estimating costs and benefits.'' (63 FR at
30320-30321). Determination of the costs of actions that may be taken
to reduce risk is in the same section at 30321-22 and in two paragraphs
at 63 FR 30325 in the section entitled ``c. Results.'' The limitations,
qualifications and uncertainties that affect both the estimates of
benefits and costs are found at 63 FR 30322-30323 in the section
entitled ``b. Estimating costs and benefits.''
The Risk Assessment was designed to estimate the declines in
children's blood lead levels that would result if abatement and other
response actions were taken in housing units that exceeded candidate
standards for paint, dust, and soil. While certain details of the
analysis are complex, the basic approach is straightforward. First, a
baseline of environmental lead and blood lead levels was established.
These represent the ``pre-403'' conditions.
For the pre-403 environmental lead levels, the Agency used the
Department of Housing and Urban Development's National Survey of Lead-
Based Paint in Housing (the HUD Survey). Conducted in 1989-1990, the
HUD Survey measured the extent and condition of lead-based paint in
housing, the amount of lead in dust within the housing, and the amount
of lead in soil surrounding the housing. For the pre-403 blood lead
levels, the Agency used Phase 2 of the third National Health and
Nutrition Examination Survey (NHANES III). Conducted by the Centers for
Disease Control and Prevention in 1991-1994, NHANES III included
measurements of children's blood-lead levels.
Next, the Agency estimated the reduction in environmental lead
levels that would result if abatements or other responses were
performed in housing units that failed candidate standards for paint,
dust, and soil. These levels represent the ``post-403'' environmental
lead levels and rely upon estimates of the effectiveness and duration
of the response actions.
The Agency then modeled the blood lead levels that would correspond
to the pre- and post-403 environmental lead levels. This allowed an
estimation the blood-lead reduction that would result from the
standards (i.e., the difference in the blood lead levels from the pre-
403 environmental levels to the post-403 environmental levels). Here,
the Agency used two different models the Integrated Exposure Uptake
Biokinetic (IEUBK) Model and an empirical model that was based upon the
results of the Rochester Lead in Dust Study. Consequently, there are
two different estimates of the blood-lead changes that would result
from the 403 standards, one based upon each model. Finally, the two
estimates of blood-lead changes were re-scaled by applying the pre-403
blood-lead levels in NHANES III. EPA repeated this process for each set
of standards under consideration.
The two models of risk assessment were incorporated into the
economic benefit-cost framework to generate net benefit estimates for
the various candidate hazard standards. EPA wishes to emphasize that it
is more important to consider the net benefit estimates relative to
each other rather than their actual numerical value for the various
candidate hazard standards. In order to apply these models in this
national analysis, the models relating environmental lead to blood lead
could not reflect the consideration of site-specific data to the extent
that would be sought when they are applied locally.
[[Page 1218]]
Also, the Agency recognizes that the costs and benefits associated with
the normative analysis are likely to overstate the actual costs and
benefits associated with the standards since it is likely that not
everyone will follow the rule recommendations and, to the extent they
do not, benefits and costs would both be lower. This is not of great
concern because the objective of this analysis is to provide EPA with a
tool to compare options in terms of relative costs and benefits of each
option, not to develop precise absolute estimates of costs and
benefits.
Despite the limitations and uncertainties of the analysis, the
results for options within each model can be compared. The limitations
may affect the estimates of absolute costs and benefits, but these
limitations should have similar effects on the estimates for each
option. Additional discussion of how to interpret the results of the
normative cost-benefit analysis is provided in the preamble to the
proposed rule (63 FR 30323) at the beginning of the Unit entitled ``c.
Results.''
b. Results. The results of the analysis, under each model, to
determine dust-lead and soil-lead hazards for the proposed rule are
found in the preamble to the proposed rule (63 FR at 30323-30325). The
results of the analysis after the reevaluation for the final rule are
presented in this section. The analysis' computation of net benefits is
the difference between the total benefits estimate and the total costs
estimate. Net benefits are an indicator of the societal gains from
hazard controls. While the rule, in and of itself, does not impose a
requirement to abate the hazards, for purposes of its risk analysis for
this rule, EPA has assumed that abatement will be undertaken in all
homes that exceed the levels when a child is born. This analysis does
not account for the costs and benefits associated with child-occupied
facilities because of the lack of available data and resources.
While the Agency has assumed that the remediation response to the
presence of a paint, dust or soil lead hazard is abatement (e.g.,
removal or permanent covering for soil) for purposes of its analyses,
it should not be concluded that the Agency has identified abatement as
the only viable response to paint, soil or dust hazards. The Agency
believes that well-designed and well-managed programs of interim
controls can achieve significant reductions in hazards and,
particularly for soil hazards, could be less expensive than removal.
As noted previously in this preamble, in performing its analyses
for this rule, the Agency could not quantitatively compare interim
control strategies with abatement strategies because there are only
limited data available on the effectiveness of interim controls over
extended periods of time, and those data which are available are not
suitable for quantitative comparisons with abatements. Nevertheless,
experience with interim control programs is increasing and certain
organizations, particularly public health and housing agencies, believe
they have been able to develop effective programs for interim controls
which achieve virtually the same degree of risk reduction as do
abatement programs, but at much reduced cost. EPA believes that public
and private organizations should evaluate both interim control and
abatement strategies in determining the most effective course of
action.
Therefore, while EPA does not have the authority under this statute
to mandate any particular remediation action for lead-based paint
hazards, it recommends strongly that some action be initiated--interim
controls or abatement--if lead levels exceed the hazard standards.
Morever, if bare soil-lead levels are below the hazard standard in non-
play areas, the Agency recommends that organizations and individuals at
least consider some action in bare soil in those areas if there is a
concern that children under the age of 6 might spend substantial time
in such areas, or there is concern that the bare soils in such areas
may contribute to hazardous lead levels in the dwelling, or in the play
area.
The IEUBK-based analysis and the Empirical-model-based analysis are
only used to calculate the benefits of the various options. Costs are
calculated in the same manner for both models. Total costs increase as
options become increasingly stringent and are mainly a function of unit
costs (costs for a single abatement) and the number of homes affected.
Unit costs for dust are the same whenever a dust lead hazard is
present. For soil, unit costs vary depending on the part of the yard
being addressed by the abatement (e.g., dripline, mid-yard, play-area)
and on whether the removed soil has to be managed as hazardous waste
under regulations under the Resource Conservation and Recovery Act
(RCRA). The unit cost is lower for lower soil-lead levels (below 2,000
ppm) because it is expected that the removed soil would not have to be
managed as hazardous waste.
In the analysis for the proposed rule, unit costs for dust
abatement were $ 391 for single-family homes and $ 262 for multi-family
units (63 FR 30324). The preamble to the proposed rule (63 FR 30322)
included the following complete range of unit costs for soil removal
and other control actions as follows:
Table 1.--Hazard Evaluation and Control Costs (per activity in 1995
dollars)
------------------------------------------------------------------------
Multi-family
Activity Single Family (per unit)
------------------------------------------------------------------------
Risk assessment 456 235
------------------------------------------------------------------------
Interior paint repair 437 437
------------------------------------------------------------------------
Interior paint abatement 6,587 4,687
------------------------------------------------------------------------
Exterior paint repair 807 182
------------------------------------------------------------------------
Exterior paint abatement 5,706 2,275
------------------------------------------------------------------------
Dust cleaning 391 262
------------------------------------------------------------------------
Soil removal (dripline; 2,046 399
nonhazardous waste)
------------------------------------------------------------------------
Soil removal (mid-yard; 7,878 777
nonhazardous waste)
------------------------------------------------------------------------
Soil removal (both areas; 9,008 901
nonhazardous waste)
------------------------------------------------------------------------
[[Page 1219]]
Soil removal (dripline; hazardous 3,443 541
waste)
------------------------------------------------------------------------
Soil removal (mid-yard; hazardous 16,486 1,351
waste)
------------------------------------------------------------------------
Soil removal (both areas; 19,013 1,617
hazardous waste)
------------------------------------------------------------------------
Soil removal (play area, non- 1,460 314
hazardous waste)
------------------------------------------------------------------------
Soil removal (play area, hazardous 2,129 359
waste)
------------------------------------------------------------------------
It is important to note that, as printed in the proposal, this
table contained a typographical error with respect to the cost of
exterior paint abatement in single-family housing. This error was
identified and corrected in a Federal Register document published on
December 18, 1998 (63 FR 70087) (FRL-6048-3).
Total costs for the various options considered are found in Tables
4, 5, 6, and 7 of the proposal (63 FR at 30324-30325). Similar tables,
although slightly revised as is described later in this section, are
presented as Tables 7-A1 through 7-A4 in Appendix 7 of the Economic
Analysis of the TSCA section 403 Lead-based Paint Hazard Standards
Final Rule (December 2000) (Economic Analysis) (Ref. 14). As in the
proposal, however, these tables do not include estimated costs or
benefits of paint interventions, or any testing or risk assessment
costs. Since only a single standard was considered for paint
interventions, associated costs and benefits are omitted from the
tables to permit a clearer presentation of the incremental changes in
costs and benefits that are associated with changes in standards for
the option considered. The Agency also omits testing and risk
assessment costs in the tables below for a similar reason. Finally, in
order to observe the effects of intervention in each medium separately,
EPA held lead levels in all other media constant at baseline levels,
which are based on the HUD National Survey data. In tables 7A-3 and 7A-
4 for the estimated costs and benefits for soil-lead hazard standard,
independent dust and paint interventions are assumed not to occur. Some
dust interventions that are triggered by soil abatements are
incorporated in these two tables.
The units of benefit and the value being assigned to them are
presented in Table 2 below.
Table 2.--Summary of Benefits Analysis Estimate
----------------------------------------------------------------------------------------------------------------
Type of Effect Description Estimate Source
----------------------------------------------------------------------------------------------------------------
Effect of a Single Point Reduction Sum of the direct and $9,360 in 1995 dollars Product of the estimate
in IQ indirect effects on of the present value of
the percent of average lifetime
earnings lost (2.379%) earnings based on U.S.
and express the effect Department of Commerce
in terms of the ($366,021 (1992 $)) and
present value of the assumed percentage
average lifetime loss of earnings from a
earnings single point reduction
in IQ of 2.379%
(Salkever 1995)
----------------------------------------------------------------------------------------------------------------
Cost of Additional Education Sum of the direct $1,014 in 1995 dollars Sum of the estimate of
costs ($316) and the direct and
opportunity costs opportunity costs of
($627) of additional additional education
education based on U.S.
Department of Education
(1993) data
----------------------------------------------------------------------------------------------------------------
Total Effect of a Single Point Subtract the costs of $8,346 in 1995 dollars Accounting for the cost
Reduction in IQ additional education of additional education
from the effects on was based on Salkever
earnings lost (1995)
----------------------------------------------------------------------------------------------------------------
Special Education (IQ less than 70 Cost of special $53,836 in 1995 dollars Kakalik et al. (1981)
points) education beginning at estimate annual
age 7 and ending at incremental regular
age 18 classroom costs of
$6,458 in 1995 dollars
for special education.
This estimate is the
discounted value of
such costs for age 7
through 18.
----------------------------------------------------------------------------------------------------------------
Compensatory Education (Blood lead Cost of compensatory $15,298 in 1995 dollars Kakalik et al. (1981)
greater than 20) education beginning at estimate annual
age 7 and ending at incremental regular
age 9 classroom costs of
$6,458 in 1995 dollars
for compensatory
education. This
estimate is the
discounted value of
such costs for age 7
through 9.
----------------------------------------------------------------------------------------------------------------
Medical Intervention (for several Cost of blood lead Risk Group\1\ I:$58; Recommendations and
blood lead ranges) screening and medical R.G. IIA: $70; R.G. actual practice based
intervention for IIA: $227; R.G. IIA: on information from CDC
children less than six $417; R.G. IIA: $678; (1991), AAP (1995), and
years old (by blood R.G. IIA: $9843; R.G. medical practitioners.
lead Risk Group) IIA: $9843 These estimates are the
discounted costs per
newborn associated with
each blood lead Risk
Group.
----------------------------------------------------------------------------------------------------------------
\1\(All in $1995)
[[Page 1220]]
Calculations for the IEUBK-based analysis for a range of dust
hazard options for floor dust and the soil hazard standard options are
presented in the economic analysis (Ref 14). Discussion of the
calculations is found at 63 FR 30323-25. The dust values for 40
g/ft2 will be discussed later in this preamble.
Finally, the units of benefit and the value being assigned to them in
these analyses are presented in Table 2.
In summary, total benefits increase as options become increasingly
stringent, ranging from $ 50 billion to $ 88 billion for dust and from
$ 16 billion to $ 145 billion for soil. As discussed in the Economic
Analysis, the results presented for soil account for the fact that soil
interventions (excluding those in play areas only) include dust
interventions following the removal and replacement of soil, and thus
incorporate the costs and benefits associated with dust interventions
in addition to the costs and benefits associated with the soil
abatement itself. Benefits increase at an increasing rate because, as
dust and soil-lead levels decline, the number of homes at given
environmental lead levels increases more quickly. For example, moving
from a soil standard of 5,000 ppm to 4,500 ppm increases the number of
homes exceeding the standard from about 600,000 to about 700,000 (an
increase of about 100,000 housing units), while moving from 1,000 ppm
to 500 ppm increases the number of homes exceeding the standard from
about 6 million to 12 million (an increase of about 6 million housing
units).
Because total benefits increase at a faster rate than total costs,
net benefits also increase as options become increasingly stringent,
ranging from $ 42 billion to $ 69 billion for dust and $ 13 billion to
$ 103 billion for soil. The increase in net benefits is relatively
constant as the dust standards become more stringent. For soil, net
benefits increase slowly from 5,000 ppm to 3,000 ppm and increase more
quickly from 3,000 ppm to 2,000 ppm and from 1,200 to 500 ppm. Net
benefits increase because total benefits are increasing at a faster
rate than total costs.
It is important to note that the above analyses do not take into
account lead levels in other media. Controlling for other contributors
to blood lead presents a different picture of the net benefits that
result from moving to a more stringent standard.
Under the Empirical-model for floor dust, total benefits increase
as options become increasingly stringent, ranging from $ 27 billion to
$ 36 billion. For sill dust over the range of candidate standards that
were considered, net benefits are in the maximum range at 250
g/ft2 and are slightly higher with floor dust
standards of 50 g/ft2 as compared to 100
g/ft2. As is the case in the IEUBK model-based
analysis, the rate at which benefits increase rises as the stringency
of the options increase, because more homes are affected (and more
children are protected). The rate at which benefits increase, however,
is tempered somewhat because the relationship between dust and soil-
lead and blood lead remains relatively constant across the range of
options considered. The increasing number of children protected by more
stringent standards is counter balanced by decreasing risk reduction
predicted for children living in homes with low dust and soil-lead
levels. That is, there are smaller changes in blood lead because there
are smaller changes in environmental-lead between baseline dust-lead
levels and post-intervention levels.
Of the combinations of dust standard options evaluated in the
proposal, net benefits were relatively constant for all the
combinations except the most and least stringent (floor = 50
g/ft2 with sill = 100 g/ft2 and
floor = 100 g/ft2 with sill = 1,000 g/
ft2, respectively). For the other options considered,
benefits and costs increase at approximately the same rate, resulting
in little change in net benefits. Specifically, the combinations
resulted in net benefits of around $ 20 billion, which is also the case
when a floor standard of 40 g/ft2 is considered.
Net benefits for soil range from $ -7 billion to $ 2 billion,
approaching maximum levels near 5,000 ppm and 2,000 ppm. Below 2,000
ppm, net benefits decrease because total benefits increase at a slower
rate than total costs. The increased number of children protected at
more stringent standards is offset by a smaller predicted reduction in
risk at lower environmental levels.
4. Selection of the standards and other Agency decisions. This
section of the preamble presents the explanation of EPA's decisions
regarding the standards for dust and soil lead hazard and paint-lead
hazard standards.As part of the discussion of the Agency's decisions
for each media, EPA is also presenting its decisions on related issues
including sampling location and interpretation. The dust section will
also include a discussion of the dust clearance standards, and the soil
section will include EPA's decision regarding management of soils
removed during abatement.
The clearance standards for dust, interpretation of composite
clearance samples, soil management practices, and sampling location
requirements are not being issued under authority of section 403 of
TSCA, but under the work practice standards of section 402. Therefore,
the legal reasoning, policy decisions, and technical analyses explained
above do not have direct applicability to their promulgation. EPA is
presenting these issues in this unit for public convenience, in order
to keep all its decisions regarding each medium in one place in this
preamble.
a. Dust--i. Dust-lead hazard standards. EPA has decided to adopt a
dust-lead hazard standard 40 g/ft2 for floors and
250 g/ft2 for interior window sills) in the final
rule. The floor standard is changed somewhat from the proposal but the
window sill standard remains the same as for the proposal.
According to the Empirical model-based analysis for the proposal,
the results of which are summarized in Table 6 of the proposed rule,
four of six combinations of options for floor and window sill standards
have net benefits in the maximum range (i.e., $ 21 to $ 22 billion).
One combination (100 g/ft2 for floors, 1,000
g/ft2 for sills) provides significantly less risk
reduction relative to cost; and one combination (50 g/
ft2 for floors, 100 g/ft2 for sills)
provides little additional benefit but costs increase significantly.
Incremental benefits are less than one third the incremental costs and
an additional 11 million homes would fall under the standard. EPA,
therefore, considers that this lower standard for sills is associated
with increased costs without commensurate attendant benefits.
Of the four combinations considered in the proposed rule, the 50/
250 g/ft2 standard was found to be the most
protective in terms of the amount of risk reduction yielded. The other
three options, though less costly, also provided less risk reduction.
The decrease in both costs and benefits as the combination of floor and
sill options become less stringent were roughly the same (between $5
billion and $6 billion), resulting in little change in net benefits.
EPA's decision on the proposed floor standard was further supported
by the results of the IEUBK model-based normative analysis, summarized
in Table 4 of the preamble to the proposed rule, which showed that the
net benefits for the proposed floor standard were greater than those
for a less stringent standard; net benefits estimated by this analysis
increased from $ 48 billion for 100 g/ft2 to $ 61
billion for the proposed 50 g/ft2 standard.
EPA reiterates that this normative cost-benefit analysis has been
undertaken for comparative purposes
[[Page 1221]]
only to evaluate the hazard standards on a relative basis. However it
does not mean to imply that billions of dollars will be spent on lead
dust cleanup because the responses projected in the cost estimates may
not necessarily reflect the behavior of residents and building owners
over 50 years. These costs also reflect some extremely conservative
assumptions, such assuming that all yards are potentially affected even
if they actually contain no bare soil. These costs are put into better
perspective when it is understood that the cost per residence of dust
cleaning is less than $ 600 per affected residence over a 50-year
period in 1995 dollars. In making this decision, EPA recognizes that
the proposed standard could result in dust hazard interventions in
perhaps as many as 20 million homes. Although this is a very large
number of homes, the cost of intensive dust cleaning is relatively low
for individual residences.
EPA decided to propose the 50 g/ft2 and 250
g/ft2 standards respectively for floors and sills
because the Agency preferred to select the most protective of the four
combinations.
In the proposal, the Agency did not consider a floor standard
option less than 50 g/ft2 because, in its risk
analysis, EPA's best estimate was that the post-intervention dust-lead
loading would be the lower of the pre-intervention dust-loading or 40
g/ft2. This was the Agency's best estimate of dust
levels that would remain after controlling sources of lead and
thoroughly cleaning the residence. It was based on an analysis of data
from several abatement studies which is more fully discussed in Chapter
6 of the Agency's risk analysis (Risk Analysis to Support Standards for
Lead in Paint, Dust, and Soil, EPA 747-R-97-3006, June 1998) (Ref. 12).
in the record for the proposed rule. In light of this estimate, EPA
found it would be impractical to set the standard for floors lower than
40 g/ft2 because little or no risk reduction would
likely to be achieved for homes that had dust-lead loadings at or below
40 g/ft2.
In the preamble to the proposed rule, EPA stated that, if new data
were to become available before promulgation of the final rule that
show that even lower post-intervention dust-lead loadings could be
achieved, EPA would consider establishing a more stringent dust-lead
hazard standard. A number of comments were submitted claiming that
cleanup could be achieved below 40 g/ft2. Of
particular relevance were comments from HUD stating that, in its
experience, cleaning to levels below 40 g/ft2 was
typically achieved as evidenced by its Grantees program. In fact, since
the proposal of this rule, HUD has promulgated a 40 g/
ft2 standard for floors in its 1012/1013 regulations. Since
EPA's basis for not considering a standard less than 50 g/
ft2 was based upon its understanding of the effectiveness of
cleaning and, based upon the data provided by HUD in its comments, it
is now clear that a 40 g/ft2 standard is
achievable, the Agency is establishing 40 g/ft2 as
the dust-lead hazard standard for floors. The Agency believes that this
is consistent with the approach taken in its proposal namely, that the
floor-dust hazard standard should be at the lower end of the range
where risk reduction is possible. Further, when considered in terms of
its cost-benefit analysis, EPA found that indeed positive net benefits
resulted for the 40 g/ft2 hazard standard. In fact,
as compared to the proposed standard of 50 g/ft2
with a sill dust standard of 250 g/ft2 (see Tables
2 and 4), net benefits are somewhat higher under the IEUBK model-based
analysis and approximately the same under the Empirical model-based
analysis.
EPA does not believe it is appropriate to set a dust-lead hazard
below this level for the additional reason that such a level would
significantly increase the number of homes identified as lead hazards
and would not likely identify more truly hazardous environments. This
is based on the fact that these lower levels would identify
significantly more than the approximately 22 million homes that are
identified as having dust-lead hazards under the 40 g/
ft2 standard. In view of the fact that there are far less
children in the population with elevated blood lead levels, EPA has to
question modeling results that would suggest such lower levels.
ii. Carpeted floors. In contrast to the proposed standards that
only applied to uncarpeted floors, EPA has decided to include carpeted
floors in the dust-lead hazard standard, and the clearance standards.
EPA's reasoning is explained herein.
The Agency received substantial comment on the issue of the floor
dust standard, and its proposed limitation to uncarpeted floors. As
discussed in the preamble for the proposed rule (63 FR 30336), EPA did
not include dust standards for carpeted floors because the Agency was
unaware of adequate data that could be used to establish a statistical
relationship between dust lead on carpeted floors and children's blood-
lead concentrations. In the absence of such relationship, EPA felt it
could not estimate the level of risk and risk reduction that would be
associated with various levels of dust-lead in carpeted floors.
Furthermore, EPA did not believe it had adequate data on the
effectiveness of carpet cleaning that would be needed to establish a
dust clearance level for carpeted floors. EPA did state that it planned
to analyze expeditiously any newly available data to establish dust
standards on carpeted floors and to amend the regulations to add
standards for carpeted floors.
EPA, however, acknowledged that the lack of standards for carpeted
floors was a significant limitation of the proposal. Accordingly, the
Agency requested comment on the impact of not including standards for
carpeted floors and indicated it would be interested in any information
or data that would help it establish such standards.
Almost all comments on this issue disagreed with EPA's decision not
to set carpet standards, even though many recognized that the lack of
data on hazardous levels of lead in carpets makes it difficult for EPA
to establish a dust-lead standard for carpeted floors. However, by
excluding carpet dust from the dust hazard standard EPA will cause
excessive amounts of lead to be ignored during dust-lead control
activities. Many children who live in homes with wall-to-wall carpeting
will remain unprotected from floor dust-lead hazards. Using data from
the 1997 American Housing Survey, EPA estimates that approximately 54
million housing units built prior to 1978 contain some wall-to-wall
carpeting. Of these units, wall-to-wall carpeting is found in a living
room in approximately 47 million units and in a bedroom in
approximately 46 million units (i.e., rooms in which children reside
and play most frequently.
A number of comments pointed out the unintended consequences of not
having a dust-lead standard for carpets. Contractors complained that,
because abatement requires quality control standards in order to be
properly executed, many contractors will refuse to work in rooms where
there is no standard on which they can fall back to show they have done
their work correctly. This could raise liability issues because there
would be no standard to determine whether it is safe for a family to
return to a home after a lead cleanup. Not having a carpet standard
could create the notion that, if carpet remains, there is no hazard on
the floors and the carpeted floor can be ignored. Further, a property
owner could avoid having to meet clearance levels for lead dust on
floors simply by laying carpet.
In view of the substantial loophole that could be created in the
absence of a standard for carpeted floors, many comments recommended
that EPA
[[Page 1222]]
should maintain one standard for all floors until research can be done
that supports a different standard for carpeted floors. The Agency is
persuaded by the comments that the absence of any standard at this time
would potentially lead to significant exposures for children, and that
some standard is necessary at this time.
In response to these concerns, the Agency has reviewed the
information submitted by commenters and other information in its
rulemaking record, including the data base supporting the floor dust-
lead standard. EPA agrees with the comments that the huge potential
loophole created by not having a carpet standard could affect large
numbers of children and would be inappropriate. It is known that
carpeting can be a dust reservoir with significant amounts of lead. In
addition, the Agency believes that its rulemaking record supports
setting a carpet standard that is the same as the standard for bare
floors.
Specifically, EPA finds that the following information supports
setting a carpet standard that is the same as the bare floor standard.
First, EPA agrees with the comments, particularly with respect to the
fact that substantial amounts of children would remain unprotected by
not having a carpet standard and that the consequences are harmful to
public health.
With respect to data, EPA has examined its analysis that supported
the dust-lead hazard standard. That analysis not only supports the
standard for bare floors, but also the same one for carpeted floors.
This is because the data that was used as input to its models did not
distinguish between bare floors and carpeted floors. That is, the
Agency's risk analysis, its analysis of risk reduction that could be
achieved through cleanup, and the cost-benefit analysis for floors
evaluated both carpeted and uncarpeted floors. EPA cannot definitively
state that, in fact, all factors will be the same for both carpeted and
uncarpeted floors, but sufficient evidence exists to establish a carpet
standard. This is based upon considering the potential loophole that
could exist in the absence of a carpet standard and the fact that some
correlation exists between carpeted and non-carpeted floors.
The correlation between carpeted and non-carpeted floors is
supported by data in the rulemaking record, as well as data submitted
by HUD in comment. These data include the Rochester (NY) Lead-in-Dust
study and the pre-intervention, evaluation phase of the HUD Lead-Based
Paint Hazard Control Grant (``HUD Grantees'') Program (data collected
through September 1997), both of which appear in the record for this
rulemaking and are described in the Risk Analysis for the proposed
rule. The Rochester Study shows a significant correlation between dust
lead in carpets and children's blood lead. Further, the study showed
that the percentage of children with blood-lead levels above 10
g/dL were nearly the same with carpeted and uncarpeted floors
(19.8 and 18%, respectively). This correlation supports setting at
least the same standard for carpeted and non-carpeted floors. In
addition, data from the HUD Grantees indicate that grantees were able
to reduce dust-lead loadings in carpets, although the data are limited
by the fact that grantees were working with higher clearance standards
(80 - 200 g/ft2 instead of 40 g/
ft2). Nevertheless, the fact is that the identical cleaning
techniques were used, regardless of the clearance standard. Finally,
there are no scientific data available demonstrating that carpeted
floors pose different risks to children than any other type of
flooring.
Accordingly, EPA's dust-lead, hazard and clearance standards apply
to all floors. This will ensure that children are protected from dust
hazards on all types of floors until future rulemakings can more
definitively evaluate the need for different carpet standards.
iii. Sampling requirements related to assessing dust-lead hazards.
EPA is adopting the sampling location (63 FR 30342) and interpretation
(63 FR 30339--30340) requirements based on the rationale in the
proposed rule. This regulation amends the work practice standards for
risk assessments at 40 CFR 745.227 to require risk assessors, for
purposes of hazard assessment, to take samples from floors and interior
window sills. This regulation also amends the work practice standards
to require risk assessors to make the dust-lead hazard determination by
comparing the average of wipe sample results, weighted by the number of
subsamples in each sample to the hazard standard for the appropriate
surface (i.e., floors, sills) For multifamily properties, the risk
assessor will determine that unsampled units of particular type of
surface (i.e., floors, sills) constitute a hazard if at least one
sampled unit is determined to be a hazard. Unsampled common areas are
presumed to contain a lead-based hazard if at least one sampled common
area of a similar type contains a lead-based hazard.
iv. Dust clearance standards. EPA is explaining in this section its
reasoning for establishing clearance standards for cleanup of lead dust
hazards and work practice standards for interpreting composite samples
for clearance purposes.
Clearance standards are used by certified individuals to evaluate
the adequacy of the cleanup performed in residences at the completion
of abatement. According to the practices prescribed at 40 CFR 745.227,
a certified risk assessor or inspector must collect dust samples and
have them analyzed by an EPA-recognized laboratory following the
cleanup to assure that the cleanup reduces dust-lead levels to
prescribed ``clearance'' levels. If the clearance levels are not met,
the cleanup and testing process must be repeated until the clearance
standards are met. Although clearance testing is not required following
implementation of interim controls (e.g., paint repair), the Agency
strongly recommends such testing to ensure that the residence has been
adequately cleaned.
With respect to composite sampling, the work practice standards at
40 CFR 745.227 do not differentiate between single surface samples and
composite samples for determining compliance with clearance standards.
EPA recognizes that because composite samples provide an average level
of lead, low values on some surfaces may mask the presence of lead
levels that exceed clearance standards on other surfaces. EPA continues
to believe, however, that composite sampling is a useful tool for risk
assessment and clearance and wishes to preserve its use under the
regulations, the Agency proposed a method to remedy this problem and
discussed various related issues in the preamble to the proposal (63 FR
30342).
A. Clearance standards for floors and sills. The final regulation
contains clearance standards for floors and interior window sills of 40
g/ft2 and 250 g/ft2
respectively. This change from 50 g/ft2 to 40
g/ft2 accounts for the Agency's decisions to
include standards for carpets as well as bare floors and to lower the
dust lead hazard standard, as discussed earlier in this preamble.
The preamble to the proposed rule (63 FR 30341) discusses the
statutory requirements applicable to clearance standards in TSCA
section 402. On the same page, EPA provides the reasoning supporting
the Agency's decision to use the same level to define clearance
standards for dust as is used to define dust hazard standards for
floors and interior window sills. This section of the proposal also
explains how the Agency considered available field data documenting
experience with the HUD cleaning protocol and decided to propose
clearance standards that are the
[[Page 1223]]
same as the dust-lead hazard standard. These portions of the preamble
to the proposed rule are adopted as support for the final clearance
standards in this rule.
B. Clearance standard for window troughs. For window troughs, where
EPA is not issuing a hazard standard, the Agency has decided to issue a
clearance standard of 400 g/ft2. This is a change
from the proposal, where EPA proposed to adopt the then-existing
clearance standard of 800 g/ft2 from HUD's
guidance.
The decision is based on EPA's consideration of public comments,
and other information available to the Agency, which suggested that 400
g/ft2 is an appropriate clearance standard for
window troughs. In the proposal, EPA used the current HUD clearance
level for troughs (800 g/ft2). As a result of the
public comments, EPA revisited the data from the Agency's clearance
evaluation, which clearly demonstrates that the 400 g/
ft2 level is achievable without a major increase in burden.
In six of the eight studies the pass rate for 400 g/
ft2 after one trough clearance test ranged from 80.3% to
93.6%. The corresponding range for 800 g/ft2 is
88.4% to 96.6%. Two of the studies had significantly lower pass rates
at 400 g/ft2 (30.6% and 53%). These studies,
however, also had lower significantly lower pass rates at 800
g/ft2 (43.5% and 62.9%).
C. Sampling location and interpretation of composite dust samples.
EPA is adopting the amendments to the sampling location requirements in
the abatement work practice standards at 40 CFR 745.227 discussed in
the proposed rule. This amendment changes sampling locations from
uncarpeted floors and windows to all floors, interior window sills, and
window troughs. This change is needed because the EPA is establishing
clearance standards for all floors, including carpeted floors, and
specific window surfaces.
To remedy the problem that composite samples may mask the presence
of lead levels that exceed clearance standards, EPA proposed to require
a risk assessor to divide the clearance standard by the number of
subsamples in the composite. For example, if a composite floor sample
of 50 g/ft2 contained four subsamples, the risk
assessor would compare the loading from the composite sample to 12.5
g/ft2 (i.e., the proposed floor clearance standard
divided by four). Using this approach, it was mathematically impossible
for the composite to pass when any single subsample exceeds the 50
g/ft2 proposed clearance standard for floors. It
would have, however, introduced the possibility of a composite sample
failing clearance even if all the subsamples would have passed
clearance individually (i.e., false failure), leading to additional
clean up activities that would not have been necessary. At the time of
the proposal EPA decided that this method would provide the best
balance of safety, effectiveness, and reliability (63 FR 30342). EPA
specifically asked for comment on this approach.
Commenters objected to this approach for several reasons. The most
persuasive is that this approach would create a significant
disincentive for risk assessors to use composite testing. HUD
specifically referred to a study by Scott Clark and Paul Succop which
showed that a better approach would be to compare the composite sample
to the clearance levels divided by half the number of subsamples.
Clark's and Succop's data shows that this approach produces an
equivalent rate of passing clearance as single surface sampling.
Upon review of this study, EPA has decided to adopt this approach
and is amending the work practice standards at 40 CFR 745.227
accordingly. Although the Agency prefers single surface sampling, it
does not want to create a disincentive to conduct composite testing
since in some circumstances it can save time and money. By selecting an
approach that judges composite samples and single surface samples in an
equivalent manner, EPA is removing the disincentive that the proposed
approach would have created.
b. Soil. This section of the preamble presents EPA's decisions
regarding the soil lead hazard standards. It addresses the soil-lead
hazard standards for children's play areas and the remainder of the
yard, and management controls for soil removed during an abatement:
i. Soil hazard standard. For the final regulation, EPA has selected
400 ppm in bare soil as the hazard standard for children's play areas
and is an average of 1,200 ppm as the soil-lead hazard standard for the
remainder of the yard. EPA's decision is a change from the proposed
standard of 2,000 ppm as a yard-wide standard.
EPA's reasoning in support of the 2,000 ppm yard-wide standard is
explained in the preamble to the proposed rule (63 FR at 30328-30330).
To determine the final soil hazard, EPA uses the same underlying legal
and policy rationale in the proposal. The Agency, however, now believes
it is more protective of children and still consistent with the legal
and policy bases to establish a lower level that focuses on children's
play areas, as well as a lower level for the remainder of the yard.
EPA did not identify new information that has a significant bearing
on the decisions needed for this rule and indeed is using the same
references cited in support of the proposed soil hazard standard, to
support this final decision. Comments on the proposal that questioned
whether the proposed standard would be adequately protective of
children, however, did cause the Agency to rethink its approach in
reviewing the results of the analysis and the assessment of the
available options. During this reevaluation of the options, EPA
considered all options from 400 ppm to 5,000 ppm and selected the most
protective option that could be supported by the analysis. This section
presents EPA's rationale for selecting 400 ppm for children's play
areas and 1,200 ppm for the remainder of the yard as the hazard
standards and for not choosing the other options. Detailed responses to
comments on all the options are found in the RTC document.
In order for the public to understand EPA's reasoning for the final
soil hazard levels, the Agency believes it is necessary to review its
reasons for not selecting the lowest and highest levels under
consideration (400 and 5,000 ppm yard-wide averages, respectively), the
reasons for proposing 2, 000 ppm instead of 1,200 ppm as yard-wide
standards, and the reasons for choosing 1,200 ppm in the nonplay areas
as the final soil hazard standard. This discussion will also show where
the final analysis is consistent with the proposal and where divergence
from the proposed reasoning is appropriate.
The proposal explained that, to arrive at a soil-lead hazard level,
EPA sought to determine, with consideration of the uncertainty of the
scientific evidence regarding environmental lead levels at which health
effects would result, those conditions for which the Agency had
sufficient confidence in the likelihood of harm that abatement seemed
warranted to achieve the associated level of risk reduction. This is
the method EPA has used to arrive at standards for both dust and soil.
The Agency has determined that this is an appropriate way under the
statute to determine whether a dust or soil lead ``would result'' in
adverse human health effects. EPA has followed a similar approach in
examining the final decision, although it has reached a different
conclusion with respect to choosing the levels.
In the proposal, EPA rejected options for both higher and lower
soil lead levels for a number of reasons. While, at
[[Page 1224]]
the time the Agency was only considering a yard-wide standard, those
reasons are still relevant to today's final decision. However, the
Agency's reasons for not selecting the extremes of either 400 ppm and
5,000 ppm, as a yard-wide standard, were of a more serious nature than
its reasons for not choosing of 1,200 ppm. For this final rule, EPA
reaffirms the reasoning in the proposal for not selecting the 400 ppm
and 5,000 ppm standards, as yard-wide standards, with additional
explanations noted below.
With respect to not choosing the 400 ppm level as a yard-wide
standard, EPA acknowledged in the preamble to the proposed rule that
the results of the IEUBK model-based analysis at relatively low soil-
lead concentrations are dependent upon modeling assumptions that are
sensitive to local conditions, for example the transport of outdoor
soil into a residence. Although the IEUBK model predicts substantial
benefits resulting from abatement at higher soil-lead levels, the
absence of site-specific information at lower soil-lead levels
increases the uncertainty in the public health protection that should
be expected. Consequently, EPA does not believe that, as a uniform
national soil-lead standard, a value as low as 400 ppm yard-wide
represents a reasonable public policy choice. Also, much of the benefit
that the IEUBK model-based cost-benefit analysis predicts is very
sensitive to certain of the data and assumptions used therein. For
example, a significant proportion of these benefits are associated with
changes in dust concentration, which are affected by both the HUD
National Survey data and EPA's assumptions about post-intervention dust
concentrations.
Second, EPA's Empirical-based model cost-benefit analysis has an
even greater difference with the IEUBK cost-benefit results with
respect to the risk reduction achievable at soil-lead concentrations as
low as 400 ppm yard wide. Had the Empirical-based analysis yielded
results more similar to the results of the IEUBK model-based approach,
EPA would have greater confidence that significant risk reduction is
achievable at soil-lead concentrations between 400 ppm and 1,200 ppm as
yard-wide standards for most properties.
In addition, EPA considered that, at lower levels, interim controls
would be of greater help in reducing risks than at higher levels. While
EPA lacks published studies to estimate the effectiveness of these
controls, it seems reasonable that interim controls can interfere with
exposure pathways and reduce risk. Flexibility to use these measures
may aid in taking cost-effective measures where appropriate. EPA,
however, was not able at the time of the proposal, and still is not
able, to quantify the benefits of interim controls.
The Agency notes that HUD, provided data on interior dust lead
measurements at homes where soil interim controls had been instituted.
These data included average costs of some interim control strategies
and dust measurements approximately 2 years after the controls were
implemented. While these data were not used in the risk analyses that
support this rule, they were examined in sensitivity analyses that are
contained in the Economic Analysis for today's rule (Ref. 14).
An additional reason that supports not using 400 ppm as the yard-
wide soil-lead hazard standard is provided by a number of commenters
arguing that 400 ppm should be the hazard standard, but that abatement
should not occur until 5,000 and interim controls are more appropriate
at 400 ppm. These comments come from a number of advocacy groups and
State and local governments who are experienced in dealing with
abatement issues. EPA disagrees with these comments, for reasons
discussed in more detail later in this preamble, because the Agency has
decided to base the hazard standards on the lowest levels at which its
technical analysis shows that across-the-board abatement on a national
level could be justified. Nevertheless, these comments by persons
experienced in dealing with control of lead problems, in effect,
provide additional support for the Agency's determination that 400 ppm
should not be a yard-wide hazard under EPA's methodology for choosing
the hazard standards (i.e., that 400 ppm should not be an across-the-
board abatement level).
EPA also fears that by calling 400 ppm yard-wide a hazard, property
owners and other decision makers would undertake abatements as the
automatic response. A value of 400 ppm is below the level at which EPA
believes that across-the-board yard-wide abatement and its associated
expenditure of resources are justified and at that level could divert
resources from potentially riskier sources of lead exposure--namely
deteriorated lead-based paint and dust-lead hazards.
EPA also was concerned that more stringent standards would not meet
the priority-setting goals the Agency believes are appropriate for the
Title X program. Of particular concern was the fact that the Agency
estimates that over 12 million homes would exceed a 400 ppm yard-wide
standard. Scarce resources potentially would have to be allocated
across more communities and would be diverted away from interventions
needed to respond to both deteriorated interior and exterior lead-based
paint.
With respect to the not choosing a level of 5,000 ppm as the hazard
standard, EPA found that while costs may be lower at that level, the
IEUBK model-based approach shows that net benefits also decrease by $
32 billion when increasing the standard from 2,000 ppm to 5,000 ppm.
While the empirical model-based approach shows that net benefits are
about the same for both options, the benefits decline by $9 billion
when the standard increases from 2,000 ppm to 5,000 ppm. Thus, the
absolute benefits at 2,000 ppm are substantially higher.
As discussed in the preamble to the proposed rule, however, the
difference between 1,200 ppm and 2,000 ppm as the yard-wide standard
was a closer call. While 2,000 ppm was justified by both the IEUBK and
the Empirical model based analysis, there still was concern for
substantial risk at 1,200 ppm. At 1,200 ppm in soil, the IEUBK model
estimates a mean blood lead level in the range of 8 to 11 g/
dL. This range of mean blood-lead concentrations corresponds to a range
of approximately 30 to 60% exceeding 10 g/dL and 2 to 10%
exceeding 20 g/dL. In addition, there is a much smaller
difference in homes affected when comparing the 2,000 ppm and 1,200 ppm
standards as opposed to comparing 2,000 ppm with 400 ppm. At 1,200 ppm,
4.7 million homes would exceed the standard.
EPA decided to propose 2,000 ppm for several reasons. Readers are
referred to the preamble to the proposed rule for details. First, the
results of the empirical model-based normative analysis showed that net
benefits are positive and near the maximum level at 2,000 ppm. The
IEUBK normative model-based analysis showed positive and significantly
higher net benefits at concentrations up to 2,000 ppm than for soil-
lead concentrations above 2,000 ppm. Because both analyses showed
positive net benefits at 2,000 ppm, EPA was confident that this level
represented a reasonable public health policy choice.
The second reason EPA gave in the proposal for choosing 2,000 ppm
was that, outside of its use in the economics model, the IEUBK model
predicts significant risk to children at that soil-lead concentration
under virtually all exposure scenarios. At 2,000 ppm in soil, the model
estimates a mean blood lead level in the range of 11-16 g/dL,
depending upon the assumed concentration of lead in house dust (100-
1,400 ppm in this case). This range corresponds to approximately 55 to
80%
[[Page 1225]]
equal to or exceeding 10 g/dL and 9 to 30% exceeding 20
g/dL. Although this is greater than empirical data, the Agency
believes that this application of the IEUBK model supports the
conclusion that a level of 2,000 ppm would result in adverse effects.
The third reason given in the proposed preamble to support the
2,000 ppm soil hazard level was that data from a number of
epidemiological studies show that between 40 and 50% of the children
living in certain communities with soil-lead concentrations at the
2,000 ppm level have blood-lead concentrations equal to or exceeding 10
g/dL and that 10% of children have blood-lead concentrations
equal to or exceeding 20 g/dL.
However, there are several limitations associated with the above
analysis. First, the results are based on a single media analysis,
i.e., the estimated percent of children with elevated blood-lead
concentration considered only the level of lead in soil and did not
control for the contribution of lead from other media to blood lead
level. Second, studies were conducted over a period of time between
1979 and 1996 and the study duration varied from a couple of months to
several years. Third, the studies were conducted in different
geographical regions. Some of the studies were performed in the
vicinity of smelters (active or inactive) or in ore processing
communities. Fourth, the target populations were different among the
studies (i.e., targeting children with 5-20 g/dL blood-lead
concentration, high-risks neighborhoods, homes with a lead-poisoned
child, children in a certain age group).
In the proposal, EPA decided not to use as its preferred option the
more stringent soil-lead hazard standard. While EPA interpreted the
balancing of costs and benefits under IEUBK model-based analysis as
showing costs would be at least commensurate with risks at 1,200 ppm,
the results of the empirical model-based approach suggested they might
not be. In addition, some epidemiological data indicated substantial
risks even at 1,200 ppm. Because the Agency's analysis, thus, showed
that at the national level costs may not be commensurate with risk
reduction at the lower level. EPA decided to propose the higher level
because it ``was mindful of the impacts that the costs of soil
abatement could have on individual properties and communities.'' (63 FR
30330) This was notwithstanding the fact that some epidemiological data
indicated substantial risks even at 1,200 ppm. Ultimately, therefore,
the consideration of costs and their impacts was the primary reason why
EPA proposed 2,000 ppm as opposed to 1,200 ppm.
At the time of the proposal, the Agency also expected that measures
undertaken in response to the proposed soil-lead level of concern in
guidance and dust hazard standards would help protect children exposed
to soil-lead concentrations at all levels below 2,000 ppm.
EPA received numerous comments on the proposed standard which
provided a broad range of perspectives but no clear consensus. Comments
that questioned whether the proposed standard would be adequately
protective of children did cause the Agency to rethink its approach in
reviewing the results of the analysis and the assessment of the
available options. While EPA did not choose the options at the
extremes, the Agency's principal dilemma as it considered comments on
the proposed rule was to consider whether it should retain 2,000 ppm as
the soil hazard standard or move to 1,200 ppm. EPA also received many
comments that it should establish a separate play area standard. The
Agency has resolved these problems, for the final rule, by establishing
a 400 ppm standard for children's play areas and an average of 1,200
ppm standard in the remainder of the yard. The following discussion
presents EPA's rationale for selecting 400 ppm as a children's play
area standard and for selecting 1,200 ppm as the hazard standard for
the remainder of the yard and for not choosing 2,000 ppm.
A. Play area hazard standard. As explained above, EPA's proposal
was to establish a single hazard standard that would be used for the
entire yard. Many comments were received on this approach that were
highly critical of the Agency for not treating the play area separately
from the rest of the yard. These commenters reasoned that the play area
is where children receive a significant proportion of their exposure to
soil and that, therefore, the Agency should establish a more stringent
standard for play areas. The Agency is persuaded by these comments and
has reconsidered its treatment of play areas.
The Agency's initial reluctance to considering a separate standard
for play areas was the concern that play areas could not be readily
distinguished from the remainder of the yard. Among the comments that
urged the Agency to consider a separate standard were comments from
local public health agencies stating that risk assessors can readily
identify play areas, thus making EPA's primary objection to this
approach (feasibility), moot. Given that, in responding to these
comments, the Agency, consistent with the interpretation that was
stated in its proposal, focused upon the condition and location of lead
in soil that would result in adverse health effects. As opposed to
assuming equivalent exposure from all areas of the yard, the Agency
agrees that it is also appropriate to consider that the extent of
exposure and the potential for risk reduction is much greater in play
areas. Consequently, because of the high levels of exposure that almost
by definition correspond to a ``play area,'' the Agency believes it
appropriate to consider 400 ppm to be a soil-lead hazard when that soil
is situated in a child's play area.
The Agency's next step was to attempt to estimate how a separate
play area standard would affect the risk reduction that would result
from various other standards (e.g., 1,200 ppm and 2,000 ppm) in the
rest of the yard. The Agency tried various options to partition
children's expected exposures from soil in play areas and soil in the
rest of the yard. This posed numerous problems, which will be described
later in this section, but it did indicate that an approach which
focuses primarily upon a child's play area would likely be preferable
in terms of protectiveness, risk reduction, and cost-effectiveness.
In its analysis, the Agency considered two options for the degree
of exposure: (1) That 50% of exposure is from play area soil and 50% is
from soil in the rest of the yard; and (2) that 2/3 of the exposure is
from play area soil and 1/3 is from soil in the rest of the yard. The
Agency coupled these exposure assumptions with two assumptions
regarding the relative size of the play area: (1) That 10% of the yard
is the play area (``small yard''); and (2) that 50% of the yard is the
play area. These analyses indicated that, in situations where the play
area is small, an approach which establishes a more stringent standard
for the play area can be more optimal in terms of cost effectiveness
(and obviously more protective) than a less stringent standard applied
to the yard as a whole.
For example, in the ``small yard'' case where exposure is assumed
to be 50% from the play area and 50% from the rest of the yard, the
consequences of moving from a yard-wide average standard of 1,200 ppm
to standards of 400 ppm for the play area and 1,200 ppm for the rest of
the yard are as follows: total costs are increased slightly from $68.9
to $70.4 million while total benefits increase from $159.3 to $174.2
million, using the IEUBK model. This results in an increase in net
benefits from $90.4 to $103.8 million. Using the Empirical model, this
analysis produces
[[Page 1226]]
the same trend, although the results are less dramatic, indicating an
increase in net benefits of $1.4 million. The results of these analyses
confirm that the establishment of a separate, more stringent standard
for play areas can constitute a more targeted, more protective, and
more cost-effective approach, especially where play areas are not
large.
As noted above, while the Agency believes that these analyses are
indicative of the benefits of separate standards for the play area and
the rest of the yard, there are a number of technical problems
associated with such analyses. First, the amount of direct exposure to
soil that children experience in their play areas versus the rest of
their yard has not been studied to any significant degree. A further
complication is the fact that there is little or no data on the actual,
or even relative, sizes of play areas. Additionally, the soil in the
rest of the yard can re-contaminate play areas where interventions have
previously occurred. For these reasons, the Agency was unable to
develop definitive estimates of risk and available risk reduction for
separate standards for the play area and the rest of a yard.
The Agency believes that these analyses serve to demonstrate that,
to the extent to which children's exposure to soil is greater in a play
area and the size of the play area is smaller compared to the rest of a
yard, greater risk reduction (and at a lower cost) would be achieved
with a separate standard for a play area and a different standard for
the rest of the yard (as opposed to applying a single standard to the
entire yard). Consequently, the Agency believes that establishment of a
more stringent standard for the play area will be more cost-effective
as well as more protective of children.
B. Remainder of yard hazard standard. EPA believes that, based on
the technical analysis, either an average of 1,200 ppm or 2,000 ppm
level could be chosen under the applicable statutory criteria that the
conditions of lead-contaminated soil would result in adverse health
effects. EPA chose 1,200 ppm for the final rule because it is the most
protective level at which EPA has confidence that the risks warrant
abatement.
EPA's most basic reason for choosing 1,200 ppm over 2,000 ppm is
that the IEUBK model estimates that an individual child would have a 30
to 60% risk of having a blood lead level equaling or exceeding 10
g/dL, and that some epidemiological data indicated substantial
risk at 1,200 ppm. EPA recognizes that this is an overestimate because
it was derived without consideration of a play area. EPA recognizes
that with separate consideration of a play area, the overall individual
risks will likely be lower. It is also important to note that the
epidemiological data referred to as indicating substantial risk at
1,200 ppm is the same data, and subject to these same caveats as are
discussed in the soil hazard standard section. Also, the Agency notes
that abatement at levels above 1,200 ppm have been shown to result in
declines in childrens' blood-lead levels. For example, in evaluating
the Boston portion of the Urban Soil Lead Abatement Demonstration
Project (Ref. 17), the Agency found that:
... the abatement of soil in the Boston study resulted in a
measurable, statistically significant decline in blood lead
concentrations in children, and this decline continued for at least
two years. It appears that the following conditions were present,
and perhaps necessary for this effect: (a) a notably elevated
starting soil lead concentration (e.g., in excess of 1,000 to 2,000
ug/g (ppm)); (a marked reduction of more than 1,100 ug/g in soil
lead consequent to soil abatement accompanied by (c) a parallel
marked and persisting decrease in house dust lead.
None of these factors, alone, would lead to choosing 1,200 ppm.
When combined with the range of uncertainty in either of the cost-
benefit analyses, however, the support of the IEUBK cost-benefit
analysis, and the nearness to the empirical-based model analysis that
would support the 2,000 ppm standard, these factors tip the balance
towards the lower of the two levels.
EPA finds national data are not inconsistent with the IEUBK
individual risk analysis. EPA estimates, based on the HUD National
Survey Data that 4.7 million homes have soil-lead levels that exceed
1,200 ppm. Of these 4.7 million homes, an estimated 830,000 would be
occupied by children under the age of 6 (based on the estimate from the
1993 American Housing Survey that 17.6% of homes are occupied by
children under the age of 6). According to the IEUBK prediction,
elevated blood lead levels due to lead in soil exceeding 1,200 ppm
could be found in 30% of these children (based on the lower end of the
IEUBK predicted individual range, without consideration of the play
area standard), about 250,000 children. Since over 900,000 children,
nationwide, have elevated blood-lead levels EPA finds it credible that
soil-lead could be a factor in these childrens's blood levels.
EPA decided not to select its proposed choice for the soil-lead
hazard standard, 2,000 ppm, for several reasons. First, the Agency's
analysis shows that there is substantial and credible risk at soil-lead
concentrations below this level. Second, significant risk reduction is
possible below this level.
In making its decision, EPA was mindful of the concerns associated
with lowering the soil standard from 2,000 ppm to 1,200 ppm. By picking
a more stringent hazard standard, EPA increases the estimated number of
homes that are potentially affected by 2.2 million. Abatement costs may
also divert resources from efforts to control exposure from
deteriorated paint and dust which are possibly more significant sources
of exposure.
Nevertheless, experience with interim control programs is
increasing and certain organizations, particularly public health and
housing agencies, believe they have been able to develop effective
programs for interim controls which achieve virtually the same degree
of risk reduction as do abatement programs, but at much reduced cost.
EPA received comments on this issue during the public comment process.
EPA wishes to encourage the continuing evaluation of such efforts
because resources to deal with hazardous lead levels may be very
limited, and strategies which achieve comparable risk reduction, but at
much reduced cost, have the potential to protect more children by
allocating the limited resources more effectively. Recognizing that a
site-specific evaluation may identify unacceptable risks to children,
it may be necessary to take a more rigorous approach to mitigate those
risks as the lead-levels increase. EPA believes that public and private
organizations should evaluate both interim control and abatement
strategies in determining the most effective course of action when
dealing with dust and soil hazards.
C. De minimis area of bare soil. In the proposal, EPA considered
whether the rule should include a minimum (i.e., de minimis) area of
bare soil as part of the lead hazard criteria. 63 FR 30337-8. The
Agency rejected inclusion of a de minimis area of bare soil for the
hazard standard, but did request comment on two other options. Under
one of the other options, EPA would adopt the de minimis area from the
HUD Guidelines, which instruct risk assessors to sample yards that have
at least 9 square feet of bare soil, with no de minimis in the play
area. HUD's final rule under section 1012/1013 of Title X incorporates
this into its interim soil lead hazard standard. That is, a hazard does
not exist where there are less than 9 square feet of bare soil outside
the play area.
EPA still rejects including a de minimis area of bare soil for the
hazard standard for the same reasons stated in
[[Page 1227]]
the proposal. EPA's reasoning is that the disadvantages of establishing
a de minimis outweighed the advantages. EPA has no analysis or data
that relate the amount of bare soil to risk. EPA also believes that a
de minimis area of bare soil provides little benefit. First,
information provided by an experienced risk assessor suggests that very
few properties would be excluded using the de minimis in the HUD
Guidelines. Second, the incremental cost of including soil testing in a
risk assessment is small. Moreover, the de minimis used in the HUD
Guidelines does not account for differences in yard size. Outside of
the play area, 9 square feet may be insignificant in a suburban yard
but large for the back yard of an urban row house.
However, EPA highly recommends using the HUD Guidelines for risk
assessment (Ref. 5). This would avoid declaring very small amounts of
soil to be a hazard in the non-play areas of the yard. This would also
help target resources by eliminating the need to evaluate soil or
respond to contamination or hazards for properties where there is only
a small amount of bare soil.
D. Management of removed soil. EPA is adopting the proposed
requirement for management of soil removed during an abatement (63 FR
30343). This requirement prohibits the use of soil removed during
abatement as topsoil in another residential property or child-occupied
facility. In response to comment, EPA would like to clarify that
applicable Federal and State requirements apply to removed soil
including testing pursuant to RCRA under the Toxicity Characteristic
Leaching Procedure and disposal of soil identified as hazardous waste
(Ref. ?). The Agency also advises that care should always be taken to
ensure that removed soil does not pose immediate or future risks to
human health. For example, it should not be disposed of at an
undeveloped site that may later be developed as residential or
converted into a playground.
c. Paint. This section of the preamble presents EPA's decisions
regarding the standards for hazardous lead-based paint. It addresses
the deteriorated paint, paint on friction and impact surfaces, and
surfaces accessible for chewing or mouthing by young children. This
section also discusses relevant amendments to sampling requirements.
i. Deteriorated paint. The final regulation adopts the Agency's
underlying rationale in the preamble to the proposed rule for setting
the hazard standard for deteriorated paint. Specifically, EPA reaffirms
its argument in the preamble to the proposed rule (63 FR at 30330-
30331) that the available evidence demonstrates a relationship between
deteriorated lead-based paint and blood-lead. Due to the continuing
lack of data, however, EPA is still unable to definitively select an
area threshold below which the lead-based paint would not be a hazard.
Further, EPA has received substantial public comments that even very
tiny amounts of deteriorated paint can cause harm and should be
addressed. As a result, the Agency has reevaluated its rulemaking
record and no longer believes it is appropriate to have a threshold
level of deteriorated lead-based paint below which a paint-lead hazard
does not exist.
Accordingly, EPA has decided to identify as the paint-lead hazard
any deteriorated lead-based paint, except in the case of friction
surfaces. For friction surfaces, as noted below, a paint-lead hazard
may exist if the surface is subject to abrasion and dust lead levels on
the nearest horizontal surface underneath the friction surface are
equal to or greater than the dust hazard levels.
Furthermore, EPA has decided that it was not appropriate to refer
to any area threshold for deteriorated lead-based paint as a de minimis
threshold. Using this terminology gives the public the perception that
the Agency believes risks at lower levels of deterioration are
inconsequential and that no action should be taken.
While establishing this paint-lead hazard standard would alert the
public to the fact that all deteriorated paint needs to be addressed,
EPA acknowledges that paint stabilization or interim controls
(activities less than abatement) would often be appropriate to address
paint, particularly at lower levels of deterioration or where the
deterioration is minor, such as less than: Two square feet of
deteriorated lead-based paint per room; 20 square feet of deteriorated
exterior lead-based paint; or 10% or less of deteriorated paint on the
total surface area of an interior or exterior type of component with
small surface area. EPA, further, emphasizes that applicable HUD and
EPA regulations do have area threshold exemptions for various work
practice standards, clearance, and certification requirements.
A. Comparison of proposed and final rules. EPA proposed to adopt as
the paint hazard threshold levels those levels identified in the 1995
HUD Guidelines that defined paint in poor condition. These levels were
``component based.'' That is, there were more than 2 square feet of
deteriorated lead-based paint on any large interior architectural
component (e.g., floors, walls, ceilings, doors, etc.), more than ten
square feet of deteriorated lead-based paint on any large exterior
architectural component (e.g., siding), or deteriorated lead-based
paint on more than 10% of the surface area of any small architectural
component (such as window sills and baseboards). Under HUD's Guidelines
no action was required for paint with lesser amounts of deterioration.
The Agency proposed using the criteria in the HUD Guidelines
because they were becoming the de facto industry standard that was
being considered for incorporation into model housing and building
codes and by State officials for adoption as State standards. In
addition, EPA decided that relatively small thresholds are needed to be
protective, because the area of deterioration has the potential to
increase over time and because the presence of even small amounts of
deterioration can present a significant risk to children who exhibit
pica for paint. EPA also noted that with an area threshold level in
place, millions of homes would not be identified as having hazardous
paint and that this would reduce the number of paint abatements while
still providing protection to the populations of concern. Nevertheless,
the preamble to the proposal emphasized that while areas of
deteriorated paint that fall below the threshold would not be
considered a hazard, property owners should try to keep paint intact,
especially paint known to be lead-based, because of the risk to some
children.
EPA received numerous comments on the issue of the area threshold.
Comments varied from those that argued that all lead-based paint,
regardless of condition, should be a hazard to those that argued the
Agency should have no separate paint standard but should rely on the
dust and soil standards. Comments in between recommended such standards
as all deteriorated paint should be a hazard, or that the area
thresholds should be lower or more clearly explained. As a result of
considering the comments and all other information available in the
rulemaking record, EPA is issuing a final rule that generally provides
that any deteriorated lead-based paint would be identified as a hazard.
Below, EPA explains its final decision. Detailed responses to all
significant comments are found in the RTC document.
While there were no comments that could directly quantify the
relationship between deteriorated paint and blood lead levels, two
comments attempted a
[[Page 1228]]
very rough quantification that EPA can use for limited support for its
determination that any deteriorated lead-based paint is a paint-lead
hazard. One comment cited an analysis by the Consumer Product Safety
Commission (CPSC) suggesting that very small areas of deteriorated
lead-based paint could present hazard to young children. According to
this analysis, chronic ingestion of lead from paint and other consumer
products should not exceed 15 ug/day to prevent a young child from
having a blood lead levels that exceeds 10 g/dL. Assuming a
30% absorption rate and and paint with 0.5% lead by weight, this
analysis estimates that a child would have to ingest as little as 6
square inches of paint over a month to have an elevated blood lead
level. Another comment submitted a theoretical calculation that the
proposed standard for the dust lead hazard of 50 g/
ft2 would be exceeded if only one square centimeter of lead-
based paint with a concentration of 4 mg/cm2 were ground
into dust and evenly distributed in an eight by ten foot room. Other
commenters presented anecdotal evidence that children have been lead-
poisoned as a result of exposure to very small quantities of lead-based
paint.
In addition, EPA has also considered the fact that HUD's standards,
upon which EPA relied as a consensus standard, have changed with the
issuance of HUD's final regulations under sections 1012/1013 of Title
X. EPA believes it is appropriate to conform its final paint-lead
hazard definition to HUD's regulations. It is EPA's determination that
HUD is the government agency with the most experience in dealing with
residential paint and the Agency has chosen to rely on HUD's judgment
in these matters as to amounts of deteriorated paint that would result
in adverse health effects. Industry standards tend to follow the
leadership of HUD guidelines and regulations. EPA's consideration of
the issues involving the uncertainty of choosing a paint hazard area
threshold under the statutory standard for determining what constitutes
a hazard, as well as a discussion of the history of the HUD standard
for hazardous paint and EPA's evaluation of HUD's regulations follow.
B. Uncertainty analysis. Any deteriorated paint could conceivably
cause adverse health effects, as noted by several comments.
Furthermore, EPA would want people to know that any deteriorated paint
needs to be dealt with. Very small amounts of lead-contaminated paint
could be a cause for concern. Even a few paint chips could provide a
very concentrated dose to a child that may ingest them. They may prove
to be an attractive nuisance (particularly if they are brightly
colored) that might encourage a child to ingest them. Any deteriorated
surface could rapidly expand, particularly if a child should decide to
pick at it. Because of this concern any deteriorated paint should be
carefully monitored and stabilized.
The Agency cautions, however, that it does not believe full scale
abatement, with all attendant regulations, would be appropriate for all
deteriorated lead-based paint, particularly at the lesser areas of
deterioration (i.e., less than: 2 square feet of deteriorated lead-
based paint per room; 20 square feet of deteriorated exterior lead-
based paint; or 10% or less of deteriorated paint on the total surface
area of an interior or exterior type of component with small surface
area).
Abatement in cases where there are very small amounts of
deteriorated paint would make no sense in view of the fact that
approximately 60 million residences have some lead-based paint and
approximately 13.5 million have some deterioration. The National Survey
of Lead and Allergens results will be released in the near future with
a different estimate from that on which these numbers were based (Ref.
?). Recommending abatement for all hazards when relatively few children
seem to be affected when compared to the total amount of homes with
deteriorated paint could result in the cleanup of millions of homes
that would result in little to no reduction in risk. Therefore, EPA
believes that minimal degradation does not warrant abatement.
Nevertheless, the Agency leans towards being more protective in the
face of uncertainties and has decided to have a standard at which any
amounts of deteriorated paint would be considered a lead-based paint
hazard. The more cracked or deteriorated paint that exists in a
residence, the more likely it would be that amount of degraded paint
would increase. The greater the deterioration, the more likely the
increase in lead in dust. The paint-lead hazard levels would enable
people to take protective action before excessive exposure to dust
would occur. Since people are not likely to constantly monitor for dust
levels, providing a standard that would focus on paint deterioration is
an added level of protection. In addition, the more cracking and
deteriorated paint that exists, the more likely the lead would be
available for potential exposures through ingestion via dust or direct
ingestion of paint chips.
In addition, EPA has decided to use the HUD interim standard for
the paint-lead hazard (Ref. 5). This is because, in addition to the
reasons stated above for having no threshold area, , the HUD standard
is a level that people responsible for addressing the paint-lead
hazards are either familiar with now or will have to become familiar
with and, in the absence of any other definitive level, to choose, it
makes sense to use the same standard as a sister agency for ease of
identification and compliance. Of course, EPA will reconsider its
decision should any information become available to allow choosing a
more definitive level.
C. HUD's standard. EPA concurs with HUD's reasoning for setting its
interim paint-lead hazards, as discussed in this section. HUD's
reasoning for eliminating a level below which no action is required is
explained in the preamble to HUD's final 1012/1013 rule. HUD stated
that it was convinced by various comments from the public that there
should not be an area threshold of deteriorated paint below which no
action is required. These comments were: (1) That the de minimis
exception (as it was referred to at the time) is arbitrary and not
supported by science; (2) that the levels are too large, potentially
allowing a total of over ten square feet of defective paint per room
(counting four walls plus a ceiling plus small components); (3) that
some owners or inspectors may use the area threshold as an excuse for
overlooking hazardous conditions; and (4) that it is likely to shift
the attention of workers from the importance of practicing lead hazard
control and maintaining painted surfaces in a lead-safe manner to
measuring the size of defective paint surfaces in order to document
that surfaces fall above or below the de minimis level. (See 64 FR
50156.) In addition, HUD received comments that persons dealing with
the threshold levels found it difficult to understand and put in
practice. These comments indicated that people would spend too much
time measuring the exact areas of deteriorated paint instead of
focusing on making housing lead safe. (See 64 FR 50198.)
Based on these comments, HUD's final rule eliminates any provision
that provides no action is needed with regard to deteriorated paint.
HUD concluded this based on experience in its tenant-based assistance
programs (where the area threshold provision was made effective in
1995) that indicated that the area threshold was a cause of confusion.
(See 64 FR 50198.) As a result, HUD's final rule provides that all
deteriorated lead-based paint (either
[[Page 1229]]
known or presumed to be lead-based paint) must be addressed. According
to HUD, this would simplify the rule's implementation considerably.
Even though, under HUD's regulation all deteriorated paint must be
addressed--through use of paint stabilization or interim controls, HUD
nevertheless acknowledges that something less than abatement and,
consequently, fully certified personnel, would be needed to address
paint at lower levels of deterioration. HUD, thus, retained an area
threshold exemption for required work practice and clearance standards.
The levels of deterioration in this standard are the same as provided
in EPA's TSCA section 402 work practice regulations--2 square feet of
deteriorated lead-based paint per room, 20 square feet of paint on the
exterior building, or 10% of the total surface area on an interior or
exterior type of component with a small surface area. EPA's work
practice standards were promulgated on August 26, 1996, 61 FR 45778.
These standards have become the industry standard, having been in place
since then and having been acknowledged as enforceable standards
followed by the public. Thus, under HUD's regulations, activities that
disturb painted surfaces of lesser deterioration do not have to use
certified workers, work practices required under regulation, or work
site clearance. (See 64 FR at 50149, 50156, 50166, 50184, 50185, and
50198.)
HUD had also submitted comments on this proposed 403 rule
approximately 1 year before its 1012/1013 rule was issued. These
comments were consistent with HUD's eventual final 1012/1013 rule in
the sense that they explained that HUD has found it is more practical
to require deteriorated lead-based paint of any size surface area to be
addressed. HUD commented that use of an area threshold criterion for
determining whether any control is necessary has the effect of having
inspectors or risk assessors making efforts to measure surface areas
instead of focusing on control of deteriorated paint. Further, it had
been HUD's experience that some lead-based paint hazards have not been
repaired because of confusion on whether or not enough of the paint had
deteriorated to warrant attention.
HUD recommended that EPA should eliminate the area threshold for
eliminating any need to control deteriorated paint. However, HUD then
stated, ``All deteriorated paint of any size should be considered a
hazard and should be repaired; however, containment, clearance, and
safe work practices need not be required for hazards'' below the area
threshold.
D. EPA's decision. For the reasons discussed above, EPA identifies
as a paint-lead hazard any deteriorated lead-based paint, for surfaces
other than friction surfaces, as noted below. However, EPA notes a
caution that there is a level above which serious restrictions should
be placed on worker certification and work practice standards and below
which such restrictions are not needed. HUD and EPA also agree that any
deteriorated paint needs to be dealt with.
Additionally, to attain consistency with the requirements of the
1012/1013 rule in the sense that action less than abatement should be
taken with respect to levels below the hazard threshold, EPA is
modifying the work practice standards found at 40 CFR 745.227 to
require risk assessors to test all deteriorated paint on surfaces with
a distinct painting history. This requirement would provide owners and
other decision makers with information that would help these
individuals take appropriate action (e.g., stabilize small amounts of
deteriorated paint, increase monitoring of the property and resident
children). Currently, the work practice standards require risk
assessors to test paint only where deterioration exceeds the area
thresholds. This sampling requirement, as amended, also applies to
accessible surfaces. The existing sampling requirements do not
separately address paint testing on these surfaces. The sampling
requirements for friction and impact surfaces are discussed below.
ii. Friction and impact surfaces. In the final rule, a paint-lead
hazard exists on a friction surface that is subject to abrasion and
where the lead dust levels on the nearest horizontal surface underneath
the friction surface are equal to or greater than the dust hazard
standard for that surface. A paint-lead hazard exists on an impact
surface when there is any damaged or otherwise deteriorated paint that
is cause by impact from a related building component such as a door
knob that knocks into a wall or a door than knocks against its door
frame.
EPA did not include a preferred option for friction/impact surfaces
in the proposed regulation, but instead asked for comment on several
options (63 FR at 30332-30333). These options included: Any lead-based
paint on a friction/impact surface, abraded paint on a friction/impact
surface, or no separate standard. In the latter case, the deterioration
of paint on friction/impact surfaces would be counted along with the
deterioration of all paint to determine hazardous paint, or the dust-
lead hazard standard could be relied upon.
The final paint-lead hazards for friction and impact surfaces are
within the range of options discussed for the proposal. EPA decided to
include a reference to abrasion as a condition of hazard on the
friction surfaces because abrasion indicates that the rubbing or impact
of the surfaces is likely to generate lead-containing dust. To this
condition the Agency added the presence of dust at the dust-lead hazard
level because the combination of deterioration with rubbing or impact
is likely to generate lead-contaminated dust. In light of the limited
data available to EPA, the Agency issued a standard based on a reasoned
and common sense approach that identifies conditions likely to
contribute lead to dust and the existence of dust at the hazard level.
Even with the condition of deterioration added, this option falls
within the bounds of the alternatives presented in the proposal. It is
more stringent than the alternative based on abrasion alone but less
stringent than the option that would identify any lead-based paint on a
friction and impact surface as a hazard.
In promulgating the friction surface paint-lead hazard standard,
EPA has considered those comments that urged the Agency not to
establish a separate standard for friction and impact surfaces, but
instead to focus on dust. On friction surfaces, the absence of either a
component that is not subject to abrasion or dust-lead at the hazard
level would eliminate the component as a paint-lead hazard. This is
because a positive dust test (i.e., presence of a hazard) suggests that
a friction surface is a source of lead contamination.
EPA also determined that identifying as a hazard lead-based paint
on friction and impact surfaces regardless of the paint's condition is
inappropriate. The Agency does not believe that intact paint can
generate significant amounts of lead-containing dust. Commenters who
favored Option 1 failed to provide evidence supporting the contention
that these surfaces contribute to lead-containing dust regardless of
the paint's condition. The strongest argument presented by a proponent
of Option 1 stated that the hazard designation would lead to the
testing of these surfaces for the presence of lead-based paint.
Property owners and occupants would then, at a minimum, be encouraged
to monitor the condition of the paint and keep it intact. Monitoring of
paint condition, however, does not require knowledge that the paint is
lead-based. EPA believes that owners/
[[Page 1230]]
managers/occupants of target housing should monitor the condition of
any paint on friction and impact surfaces. If the paint deteriorates or
becomes abraded at any point and young children occupy the residence,
the paint should be tested to determine if the paint is lead-based and
if a hazard exists. Furthermore, if the component has any abraded or
deteriorated paint, it would have to be tested as part of a risk
assessment.
The final regulatory decision has also led EPA to amend the
sampling requirements for lead-based paint under the work practice
standards for risk assessments at 40 CFR 745.227. This amendment will
require risk assessors to sample any visibly abraded or deteriorated
paint on friction and impact surfaces as part of a risk assessment.
iii. Accessible (chewable) surfaces. The final rule at
Sec. 745.65(a) uses the term ``chewable'' surface to refer to the
statutory term ``accessible'' surface. A paint-lead hazard exists on
any chewable lead-based paint surface on which there is evidence of
teeth marks. EPA did not include a preferred option for accessible/
chewable surfaces in the proposed regulation, but instead asked for
comment on several options (63 FR 30333). These options included: Any
lead-based paint on a interior window sill up to 5 feet off the floor;
and no separate standard.
EPA decided to include a standard for chewable surfaces in the
final rule, which is more stringent than no separate option and less
stringent than any lead-based paint on interior window sills, for the
following reasons. EPA has added evidence of chewing as a factor for
determining whether a paint-lead hazard exists and has eliminated any
requirement that the chewable surface must be up to 5 feet from the
floor. The data available to the Agency indicate that chewing on
protruding components is extremely rare, it nevertheless presents a
cause for concern. Accordingly, evidence that chewing occurs would
enable the public to focus attention on those areas where the risk is
real. Further, by adding this evidence of chewing requirement, there
would be no reason to retain any height requirement for the chewable
surface. If there is evidence of chewing on a lead-based paint surface,
there need be no other factor to consider.
The option that would identify lead-based paint on interior window
sills regardless of paint condition as a hazard is not likely to
protect any significantly larger amount of children than would be
protected by the requirement to have evidence of chewing. On the other
hand, such a stringent requirement could lead to action in millions of
other properties where children do not exhibit this behavior, diverting
resources from more significant sources of exposure such as
deteriorated paint and lead-containing dust.
Most proponents of this option or options to include a broader
range of surfaces failed to provide a compelling basis to EPA for
selecting this or broader options because they did not provide
supporting data (and most did not provide analysis). One State health
department suggested that this option would lead to paint testing of
these surfaces. Property owners and occupants would then, at a minimum,
be encouraged to monitor conditions. EPA recognizes that it would be
useful to know if chewable surfaces are covered with lead-based paint
so that these surfaces and the chewing behavior of resident children
can be monitored by owners and occupants. Chewing behavior by young
children, however, can and should be monitored in the absence of this
knowledge. This approach would avoid widespread testing of intact
paint, which is costly and may require damaging the paint in situations
where an x-ray flourescence (XRF) instrument cannot be used.
Several other commenters noted the data that EPA presented relates
to chewing, not mouthing of surfaces. Although mouthing may be more
frequent than chewing, exposure is less likely to result from mouthing
of intact surfaces. If the paint on interior window sills is intact, it
would likely have been repainted since lead-based paint was banned for
residential use over 20 years ago. Consequently, a child who mouths
intact paint would likely come in direct contact only with paint that
is not lead-based and meets the Consumer Product Safety Commission
standard for new residential paint (i.e., 0.06% by weight). It is
important to emphasize that EPA does not intend to imply that mouthing
of intact painted surfaces is risk-free behavior. Mouthing of intact
paint may result in exposure to low levels of lead and other chemicals
and, therefore, should be avoided.
The Agency wishes to note that it is very concerned about the
potential exposure for the relatively few children who do chew on
intact lead-based paint on such surfaces. The Agency has concluded that
the best way to protect these children who do chew on such surfaces is
through guidance that strongly recommends immediate action when such
behavior is observed. A range of responses is available to property
owners and other decision makers, such as plastic or metal coverings.
iv. Requirements for interpreting paint sampling. EPA is adopting
the proposed requirements for interpreting paint sampling results (63
FR 30339) except for one clarification that is being made in response
to a comment from HUD. The Department stated that language regarding
the assumption risk assessors should make about paint on surfaces that
have not been tested was unclear. The proposed requirement stated that
the risk assessor is to ``assume all like surfaces that have a similar
painting history contain lead-based paint if the tested component has
lead-based paint.'' HUD asserts that the term ``like surface'' is
ambiguous as to whether it refers to building components in the same
room equivalent or anywhere in the building. Chapter 7 of the HUD
Guidelines indicates that this extrapolation can be made only to
components in the same room equivalent, with extrapolation to untested
room equivalents appropriate only in restricted circumstances. HUD,
therefore, recommends that the method be amended to read ``assume all
like surfaces in the same room equivalent that have a similar painting
history . . .'' EPA agrees with HUD that the term ``like surfaces'' is
ambiguous and has changed the language to read ``like surfaces in the
same room equivalent.''
The requirements for interpreting the results of paint testing
apply to friction and impact surfaces, chewable surfaces, and other
surfaces with deteriorated paint. EPA is also adopting the provision
that allows risk assessors to use composite paint sampling. The Agency
wishes to restate the point made in the proposal (63 FR 30339),
however, that composite sampling for paint can be used to rule out the
presence of lead based paint but cannot be used to identify the
specific sample (and therefore component) that is lead-based.
Therefore, a risk assessor should only use composite testing if he or
she is reasonably confident that lead-based paint is not present on the
surfaces sampled.
4. Certified risk assessor requirement. In the proposed rule, EPA
included a requirement that lead-based paint hazards be identified by
certified risk assessors following the risk assessment work practice
standards and that ex situ sample analysis be performed by recognized
laboratories. The Agency argued that this approach would ensure the
reliability of sampling results and provide flexibility for future
changes in hazard evaluation technology.
This issue received substantial public comment and raised concerns
which
[[Page 1231]]
have led the Agency to reconsider promulgation of this requirement.
Many commenters believed that such a requirement would inhibit the
ability of communities and individuals to identify lead-based hazards,
and to deliver services or pursue response actions to protect children
when an obvious hazard is present, due to the cost of full risk
assessments and the lack of availability of risk assessors. Other
commenters questioned the Agency's authority to mandate such a
restriction. Some commenters believed that certification was
appropriate and necessary to ensure the quality and reliability of
hazard determinations, but questioned the need for full risk
assessments or for such lead-based paint activities to be restricted to
risk assessors. Some commenters also suggested that a screening
procedure be allowed in lieu of a full risk assessment.
In reconsidering its proposed requirement, the agency agrees with
the comments that current shortages and surpluses both in availability
of risk assessors, and potentially high costs for full risk assessments
could, in certain localities, impede response actions for at-risk
children. It also recognizes that for certain hazard determinations,
such as the visual determination of deteriorated paint, or analysis of
dust levels, a full risk assessment may not be appropriate and may
waste scarce resources available for hazard control or abatement.
The Agency also recognizes that a certified risk assessor may not
be necessary for the simple visual determination of deteriorated paint,
and that such more elementary evaluations of hazards at a property
could potentially be performed by individuals with less training and
experience than a certified risk assessor, and that such limited
activities may not in themselves require certification, but may be
performed effectively and reliably when the person performing those
activities does so under the supervision of a certified risk assessor
or other certified lead professional. In addition, the Agency did not
intend to require that certified risk assessors be required to perform
clearance sampling following abatements. For these reasons, the Agency
believes it prudent to deal with these general issues in subsequent
rulemakings and regulatory interpretations which will further address
work practices and /certification requirements for both.
While the Agency believes that these issues are best addressed in
the overall framework of the section 402 work practices and
certification standards, it is nevertheless concerned that those
uncertified individuals who may seek to determine hazards may not
always produce results of the same quality and reliability as those
obtained by a certified risk assessor, and that the use of uncertified
personnel to determine the presence or absence of lead-based paint
hazards should be considered with caution.
Sampling of dust and soil to determine lead-based paint hazards is
not a trivial procedure. The procedures which must be followed by risk
assessors in determining the nature and extent of lead-based paint
hazards at a property are stated at 40 CFR 745.227. If uncertified
individuals are used to determine hazards, it is critical that they
have the appropriate training, and follow appropriate procedures for
sampling, custody of samples, and analysis of samples to obtain
defensible results. If uncertified persons lack the training and
experience to determine lead-based paint hazards properly, their
findings may result in detrimental consequences to the health of
children and create false liabilities for property owners. A false
negative result--the failure to determine the presence of a hazard when
one actually exists, will fail to protect children from real hazards. A
false positive result--the determination of a hazard when none is
present--may cause an owner to spend additional resources to hire a
certified risk assessor.
IV. Overview of Significant Public Comments and EPA's Responses
In response to the proposed rule, EPA received over 500 comments
representing the general public, national and local environmental
groups, national and local lead-poisoning prevention advocacy groups,
the lead mining and manufacturing industry, State and local
governments, other Federal Agencies, community-based organizations, and
Federal Advisory Committees, among others. These comments address
numerous issues, including EPA's interpretation of the statutory
requirements, the policy basis for the standards, the Agency's
technical analysis, and the Agency's decisions regarding the standards
and other regulatory requirements. As noted previously, the RTC
document contains EPA's detailed characterizations and responses to all
significant public comments.
This section of the preamble presents in summary form, the
characterizations and responses to the comments on the issues that EPA
believes are of greatest interest to the public. These comments,
specifically, are as follows: (1) It is not appropriate under the
statutory requirements of Title X, or from a policy perspective, to
consider costs in the development of the hazard standards; (2)
standards would fail to protect children in inner-city neighborhoods
who are at greatest risk; (3) the dust hazard standard should be
significantly lower; and (4) EPA should provide a better explanation of
the differences between the TSCA section 403 hazard standards for soil
and the Superfund approach for addressing lead in soil.
A. Consideration of Costs in Developing Dust and Soil Hazard Standards
As discussed extensively in the preamble to the proposed rule, this
preamble and the RTC document, EPA chose to base its dust and soil
hazard standards on consideration of the potential for risk reduction
of actions that may be taken (considering uncertainties in the data and
scientific evidence describing the risks) and whether such risk
reductions are commensurate with the costs of those actions. This is
commonly referred to as cost-benefit balancing. Further, the Agency has
decided to base the hazard standards on the levels at which, on a
national level, risks justify abatement in order to comply with the
statutory standard that the hazard levels are those that ``would
result'' in adverse health effects. EPA has noted, however, in various
places throughout this preamble, that temporary measures and interim
controls can be appropriate in many situations. The analysis of
abatement, as noted further below, is EPA's analytical model. The
Agency may not require any particular action to be taken.
A number of comments from some advocacy groups and some government
organizations expressed general disagreement with this approach from
both a legal and policy standpoint. Other comments provided detailed
arguments both for and against this approach. EPA responds in the RTC
document to the more detailed arguments raised by these comments.
However, the Agency believes it is appropriate to discuss the issue
more generally in this preamble to clear up important issues and to
allay apparent fears of some members of the public.
Comments criticizing EPA's use of cost-benefit balancing generally
argued that it is inappropriate to make decisions regarding the
selection of hazard standards based on cost or other risk management
considerations. Serious concern was expressed that EPA modified health-
based protective standards by cost, or feasibility, considerations and
that scientific decisions about a health based standard
[[Page 1232]]
cannot be modified by such considerations. These comments argued that
EPA should have made decisions by tying hazard standards to a target
blood lead level. Costs and other risk management factors should only
be considered by persons implementing the standards.
EPA believes it is necessary to explain how cost-benefit balancing
was used in this rulemaking. First, the decision to use a cost-benefit
balancing approach is within the Agency's statutory authority. Title X
and TSCA Title IV neither require nor preclude the consideration of
costs in setting the standards. EPA's interpretation of the statute,
however, shows that an approach that uses cost-benefit balancing is
consistent with the statutory language and legislative history, as
described more fully in the proposal (63 FR at 30312-30314), earlier in
this preamble and the RTC document.
A cost-benefit balancing framework provides EPA with an approach to
factor uncertainty in scientific data into the decisionmaking and to
set standards where there are no distinct boundaries. For this action,
EPA's dilemma is to choose as a hazard that level of lead above which
the Agency is reasonably confident that adverse effects would result.
Below that level there may still be adverse effects, but the weight of
scientific evidence indicating adverse effects is not as great. This
formulation, of course, is an over simplification by necessity. The
Agency is tasked with line drawing by Congress in a circumstance where
there are no clear lines. At the simplest level, no one can say that
1,201 ppm of lead in soil is worthy of abatement and 1,199 ppm is not.
As a result, consistent with the applicable statute, EPA used a
balancing approach to pick the cutoff level above which a regulatory
hazard exists.
EPA's approach first, and foremost, considers the weight of
evidence as to whether dust or soil lead will actually result in
adverse effects. The surrogate for adverse effects is a consideration
of blood lead levels and the potential effects elevated blood-lead
levels can have on intelligence and lifetime earnings. Reduction in
blood lead levels and, presumably, increased lifetime earnings are then
related to reduction in environmental levels. No one would dispute that
the higher the environmental lead levels are in any particular medium
(e.g., soil or dust), the greater the likelihood of increased blood-
lead due to exposure from that medium. At low environmental lead
levels, there is less confidence that any specific medium is
responsible for blood-lead level increases. EPA's problem is drawing
the line at which concern for exposure to lead from paint, dust, and
soil diminishes that is, those levels below which EPA will decide a
regulatory hazard does not exist.
EPA, using the best scientific evidence it had, did the line
drawing by assigning a monetary value to the health effects that will
be prevented (``benefits'') and evaluating whether elimination
(abatement) of the lead hazard that causes these effects is
commensurate with the societal resources (determined by the costs of
abatement) that would be expended by doing the abatement. This gives
EPA a way to evaluate the certainty of the scientific evidence and
develop the confidence it needs to determine that the levels it has
chosen would result in adverse effects. Essentially, in this area of
scientific uncertainty about risk, EPA is more willing to say that a
regulatory hazard exists if it can find that costs of abatement are
expected to be reasonable. Costs, of course, are given far less weight
(or maybe no weight at all) in circumstances in which adverse effects
are a certainty. Certainty simply does not exist at the lower lead
levels with which the Agency is dealing in this rule.
Two salient points need to be reiterated here on how a cost-
balancing analysis was used in this rulemaking. In the first place, for
this rule, cost-benefit balancing is a useful method for decision
making within the range of uncertainty in the Agency's analyses. In any
event, use of the analysis only helps define the boundaries of the
inquiry and is not a sole basis for any decision. Once EPA decided the
range of options, the Agency chose the levels within those ranges.
Second, EPA used the normative cost-benefit analysis only to compare
options with the understanding that the relative balance of costs and
benefits estimated should be reflective of the relative balance of
actual costs and benefits. Thus, decision makers still needed to
exercise judgement. There is no ``black box'' into which numbers are
entered and a decision comes out.
The comments that object to EPA's approach for hazard determination
for dust and soil offer as an alternative determination of hazards by
reference only to environmental levels that are associated, through
modeling, with a percentage of children exceeding various blood lead
levels. For example, a hazard standard could be that level at which
models show no more than 5% of children would exceed 10 g/dL
of blood lead. This type of standard would be based solely on the
toxicity of lead (at a particular blood level) and the potential
exposure. While EPA did use this method for picking the initial
candidate hazard levels, the Agency declined to use this method for
choosing hazards.
The reasonableness of EPA's approach is supported to a large extent
by the fact that the Agency received several comments recommending
particular blood levels and percentages but no comment provided EPA
with any kind of rational basis for choosing the standard based on
those levels and percentages. Most of these comments argued for having
no more than 5% of children above 10 g/dL. However, they
provided no rationale for saying why this would meet the ``would
result'' standard for determining lead-based paint hazards (i.e., why
shouldn't we have zero children above 10 g/dL, or why 10
g/dL is the proper number for the hazard determination and not
a higher or lower number).
EPA's view of the cost-benefit approach points out another
misconception in the comments about cost-benefit analysis. This
misconception is that EPA's approach is not health-based, but instead
modifies a protective standard based on cost considerations. Commenters
also seem to believe that the Agency is using cost considerations to
leave children unprotected. This is not the case. Instead, as discussed
above, EPA evaluated different options within the range of scientific
uncertainty provided by the two models used in the Agency's analyses.
While it is true that as levels get higher, the certainty regarding the
probability of harm increases, this does not mean that lower levels
should be discounted or never addressed. It may mean, however, that as
you go lower, the levels are less likely to meet the goal of this rule
to set levels at which all abatements are specified to be conducted in
a specific way. For purposes of setting such a national standard, EPA
believes that it is reasonable to choose a level within the range at
which there is greater certainty regarding the probability of harm,
being always mindful of the need to advise the public that lower levels
are not risk-free and may in individual cases present significant
risks.
Given the range of uncertainty shown in its analyses for this rule,
EPA is choosing an option that the Agency believes provides protection,
and at which there is a higher level of certainty that in all cases
abatement is likely to reduce risks significantly. EPA has set its dust
and soil hazard standards at the lowest levels at which it believes
across-the-board abatement and its associated expenditure of resources
is justified. Evaluation of resource allocation, of which costs are a
measure, is a method
[[Page 1233]]
that was used in this rule as a tool to make decisions within a set
range of uncertainty.
Finally, EPA's hazard standards should not be considered in
isolation, but must be considered along with the Agency's tiered
approach for paint and soil. Under this approach, the Agency recognizes
that risks could exist below the hazard standard and recommends that
organizations and individuals may want to consider taking some action,
informed by knowledge of local circumstances, at levels below the
hazard levels.
B. Standards Do Not Protect Children at Greatest Risk
Groups representing environmental justice and children's health
protection interests argued that the standards do not protect children
at greatest risk. Some argued that the 1 to 5% probability level for
exceeding 10 g/dL (EPA's basis for choosing the initial
candidate hazard levels in the final rule and the Agency's basis for
evaluating lead-contaminated dust and soil in the proposed rule) would
result in no improvement because the percentage of children with
elevated blood lead levels is already below 5%. Therefore, the
populations with the highest blood lead levels would not benefit from
the standards.
EPA strongly disagrees with this assertion and, in fact, has
concluded that the exact opposite is true. The argument that the 1 to
5% probability criteria would result in no improvement for children at
risk reflects confusion with respect to the national blood-lead data
and risk to individual children. The national blood-lead data is
composed of millions of children exposed to a broad variety of
environmental-lead conditions. As such, it actually consists of a broad
range of individual risks ranging from near zero to levels above 50%
for children exposed to the very worst conditions. The average
population risk is just below 5%. Children in at-risk communities tend
to have the higher individual risk, as borne out by the higher
prevalence of elevated blood lead levels in these communities (e.g., >
20% for African American children living in pre-1950 housing).
In fact, the hazard standards identify a higher percentage of
African-American children than any other group. Moreover, instead of
offering more protection to children in at-risk communities, more
stringent standards may actually afford less protection to these
children by diluting the resources available to address hazards in
these communities.
C. Dust-Lead Hazard Standard Should be Significantly Lower
Several comments argued that the dust-lead hazard should be
significantly lower, in the 5 to 10 g/ft2 range.
They claimed that a hazard should be found because more than 5% of
children would have blood lead levels above 10 g/dL. This
recommendation is based on several analyses including an independent
analysis of the Rochester Lead-in-Dust Study and the so-called HUD
pooled analysis. According to these commenters, these analyses show
that significant risk exists where floor dust-lead levels are below 10
g/ft2.
EPA agrees that significant risks should be addressed but disagrees
with the approach of these commenters. First, as noted above, these
comments provided no rational basis for deciding that a regulatory
hazard exists based solely on environmental levels associated with
particular blood lead levels. Nevertheless, EPA concludes after review
of these comments and analyses that the results showing more than 5% of
children exceed 10 g/dL at the low environmental levels were
achieved by focusing almost exclusively on the contribution of dust-
lead to exposure and not adequately accounting for the contribution of
soil and deteriorated lead-based paint to exposure. When exposure to
these other sources is adequately accounted for, as EPA believes was
done in its analysis, significant risk attributable to dust-lead is not
found until dust-lead levels on floors reach 40 g/
ft2.
The data also indicate that to make predictions of risk based
exclusively on dust-lead measurements would be an inefficient and
imprudent approach. An examination of the Rochester data reveals that
in practically every case where there was a child with an elevated
blood lead level and floor dust lower than 40 g/
ft2, soil-lead levels were elevated and/or deteriorated
lead-based paint was present. Moreover, in most houses with dust-lead
levels below 40 g/ft2, children did not have
elevated blood lead levels because other significant sources of
exposure were not present.
EPA believes that the above-mentioned empirical data supports its
view that it is more technically correct to assess and control exposure
in all three media, as opposed to taking an approach that focuses
exclusively on dust. Given the uncertainty that exists with respect to
the contribution to exposure presented by each medium individually, the
Agency believes that it is prudent to control exposure from the
combination of paint, dust, and soil together rather than individually.
Also, control of all three media also prevents recontamination of one
medium by another, making control efforts more effective.
D. Relationship of Soil Hazard Standard to Superfund Soil Cleanup
Standards
Several commenters expressed concern about the difference between
the TSCA approach for addressing lead in soil in pre-1978 residential
property and the approach under programs administered by the Office of
Solid Waste and Emergency Response (OSWER) specifically, Superfund
sites and RCRA Corrective Action Facilities. Responses to comments on
the details of the differences in the programs are addressed in the RTC
document. In this section, however, EPA responds generally to issues
raised on the relationship between the programs administered by OSWER
and TSCA. In general, comments identified concerns that differences in
the two programs could cause confusion and that persons responsible for
cleanup under the OSWER programs could use the TSCA standard to avoid
taking response actions to achieve protection.
As a preliminary matter, EPA emphasizes that at lead-contaminated
residential sites both TSCA and the OSWER programs seek to protect the
health of the most susceptible population (children under 6 years of
age) and to promote a program that assesses and addresses risk. The
approaches taken by the various programs share many important aspects,
but also differ in some respects because of their purposes. The TSCA
program is guided by this section 403 rule, which identifies lead-base
paint hazards, which consist of lead paint and lead-containing
residential dusts and soils that the Agency considers to be hazards
under applicable statutory criteria. Guidance for the OSWER programs is
provided by the 1994 Revised Interim Soil Lead (Pb) Guidance for CERCLA
Sites and RCRA Corrective Action Facilities (OSWER Directive # 9355.4-
12, 1994) and Clarification to the 1994 Revised Interim Soil Lead (Pb)
Guidance for CERCLA Sites and RCRA Corrective Action Facilities (OSWER
Directive # 9200.4-27P, August 27, 1998) (Refs. 15 and 16).
The EPA programs that implement the RCRA and CERCLA statutes rely
on the IEUBK model for relating environmental levels to blood lead
levels in children. The OSWER soil lead guidance recommends that the
IEUBK Model be applied to utilize site-specific information that can be
very important in evaluating the risks at hazardous
[[Page 1234]]
waste sites with residential exposure scenarios. This section 403 rule
also employs analyses that have relied on the IEUBK Model and the
empirical model which employs analyses based on empirical data.
In the absence of site-specific information at hazardous waste
sites, EPA believes that soil lead levels above 400 ppm may pose a
health risk to children through elevated blood lead levels. The 400 ppm
screening level identified in the OSWER soil lead guidance is
consistent with both the children's play area hazard determination
identified in this rule and the initial candidate hazard level
discussed in this preamble. Site-specific information at hazardous
waste sites would provide a basis to identify a different soil lead
level that would be protective of health. The TSCA soil hazard levels
of 400 ppm (play areas) and an average 1,200 ppm (rest of yard) should
not be understood as a minimum cleanup level for lead in soils at
hazardous waste sites and levels greater than these could be consistent
with CERCLA requirements, depending on site-specific factors. Soil lead
levels less than these still may pose serious health risks and may
warrant timely response actions including abatement. The hazard
standard in this TSCA rule was intended as a ``worst first'' level that
will aid in setting priorities to address the greatest lead risks
promptly at residential and child-occupied facilities affected by lead-
based paint.
In contrast with the section 403 rule, which establishes minimum
national standards that are designed to be used at millions of
residential properties and child-occupied facilities across the nation,
the studies that take place at CERCLA or RCRA involve multiple
hazardous substances with potentially numerous sources of contamination
and multiple pathways of exposure that require that response levels be
developed with site-specific information. Other statutory and
regulatory criteria that would typically be considered in determining a
final clean-up number include: long-term effectiveness and permanence;
and reduction of toxicity, mobility, or volume through treatment;
short-term effectiveness; implementability; cost; State acceptance; and
community acceptance.
V. References
The official record for this rulemaking has been established under
docket control number OPPTS-62156, and the public version of the
official record is available for inspection as specified in Unit I.B.2.
The following is a listing of some of the documents that have been
placed in the official record for this rulemaking, including those
specifically referenced in this rulemaking.
1. Brody, D.J., J.L. Pirkle, R.A. Kramer, K.M. Flegal, T.D. Matte,
E.W. Gutiter, and D.C. Paschal. 1994. ``Blood Lead Levels in the U.S.
Population: Phase I of the Third National Health and Nutrition
Examination Survey (NHANES III, 1988 to 1991).'' Journal of the
American Medical Association. 272(4):277-283.
2. Pirkle, J.L., D.J. Brody, E.W. Gunter, R.A. Kramer, D.C.
Paschal, K.M. Flegal, and T.D. Matte. (1994) ``The Decline in Blood
Lead Levels in the United States: The National Health and Nutrition
Examination Surveys (NHANES).'' Journal of the American Medical
Association. 272(4):284-291.
3. CDCP. (1991, October) Preventing Lead Poisoning in Young
Children: A Statement by the Centers for Disease Control.
4. CDCP. (1997, February 21) ``Update: Blood Lead Levels-U.S.,
1991-1994.'' Morbidity and Mortality Weekly Report. 46(7):141-145.
5. HUD. (1995, June) HUD Guidelines for the Evaluation and Control
of Lead-Based Paint Hazards in Housing.
6. HUD. (1995) The Relation of Lead-Contaminated House Dust and
Blood Lead Levels Among Urban Children. Volumes I and II. Final report
to U.S. HUD from the University of Rochester School of Medicine,
Rochester, NY and The National Center for Lead Safe Housing, Columbia,
MD.
7. USEPA. (1990, January) ``Report of the Clean Air Scientific
Advisory Committee on its Review of the OAQPS Lead Staff Paper and the
ECAO Air Quality Criteria Document Supplement.'' EPA-SAB-CASAC-90-002.
January.
8. USEPA. (1994) Reducing Lead Hazards When Remodeling Your Home.
EPA 747-R-94-002.
9. USEPA, OPPT. (1995, April) Report on the National Survey of Lead
Based Paint in Housing - Base Report. EPA 747-R-95-003.
10. USEPA, OPPT. (1995, April). Report on the National Survey of
Lead Based Paint in Housing - Appendix II: Analysis. EPA 747-R-95-005.
11. USEPA. (1995, April) Report on the National Survey of Lead-
Based Paint in Housing. Appendix I: Design and Methodology. EPA 747-
R95-004.
12. USEPA. (1997, December) Risk Analysis to Support Standards for
Lead in Paint, Dust, and Soil. Volumes I and II. EPA 747-R-97-006.
13. USEPA. (1998) Economic Analysis of TSCA Section 403: Lead-Based
Paint Hazard Standards.
14. USEPA. (2000) Economic Analysis of TSCA Section 403: Lead-Based
Paint Hazard Standards.
15. USEPA. (1994) 1994 Revised Interim Soil Lead (Pb) Guidance for
CERCLA Sites and RCRA Corrective Action Facilities, OSWER Directive
#9355.4-12, 1994.
16. USEPA. (1998, August 27) Clarification to the 1994 Revised
Interim Soil Lead (Pb) Guidance for CERCLA Sites and RCRA Corrective
Action Facilities, OSWER Directive #9200.4-27P.
17. USEPA. (1996) Urban Soil Lead Abatement Demonstration Project,
Volume I: EPA Integrated Report #600/P93/001aF.
VI. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), the Office of Management and
Budget (OMB) has designated this an ``economically significant
regulatory action,'' because this action may result in behavioral
changes that involve increased expenditures by owners of target housing
and child-occupied facilities, with a potential annual effect on the
economy of $100 million or more. Although the establishment of the
standards contained in this rule do not, in and of themselves, mandate
any action, the Agency recognizes that the existence of the hazard
standards may influence the decisions or actions of owners of target
housing. This rulemaking was therefore submitted to OMB for review
under this Executive Order, and any changes made during that review
have been documented in the public version of the official record.
In addition, while EPA does not believe that this action, in and of
itself, imposes any requirements, EPA has prepared an economic analysis
of the potential impacts of this action, which is contained in a
document entitled Economic Analysis of Toxic Substances Control Act
Section 403: Lead-Based Paint Hazard Standards (Ref. ). The Agency
believes that, in establishing the standards, it is reasonable to
consider the potential costs and benefits associated with the possible
actions that an owner could or might take based on the hazard standard.
The analysis, in conjunction with other considerations, helped the
decision-makers to select the final hazard standards presented in this
document. The analysis is available as a part of the public version of
the official record for this action and is briefly summarized here.
[[Page 1235]]
Building on the economic analysis for the proposed rule (Ref. ?),
which is summarized in Unit XII of the proposed rule (63 FR at 30349-
30351), the final economic analysis contains one major change. For the
final rule, EPA separtely assessed the costs and benefits associated
with a separate soil standard for play areas and presented the results
in Appendix 7 of the Economic Analysis. The following summary of the
economic analysis focuses on this change. A summary of the rest of the
analysis was presented in the proposed rule (63 FR at 30349-30351).
In this additional analysis, the revised model goes through a
three-step process to estimate which homes might incur a soil abatement
and what parts of the yard might be addressed. The first two steps are
the same as the original model, a third step was added to address the
play area issue. In the original model, if the home's average of near
and remote soil concentrations did not exceed the standard, then the
model assumed that no soil abatements would occur. In the revised
model, if the average soil concentrations were below the soil standard,
then the play area (represented by the remote area) soil concentration
was compared to the standard. If this alone exceeded the standard, then
the model assumed that the play area soil would be removed and
replaced.
The Agency notes that the costs presented here for soil response
actions are based upon the assumption that those responses would be
soil abatement. As noted previously in this preamble, in performing its
analyses for this rule, the Agency could not quantitatively compare
interim control strategies with abatement strategies because there are
only limited data available on the effectiveness of interim controls
over extended periods of time, and those data which are available are
not suitable for quantitative comparisons with abatements.
Nevertheless, experience with interim control programs is increasing
and certain organizations, particularly public health and housing
agencies, believe they have been able to develop effective programs for
interim controls which achieve virtually the same degree of risk
reduction as do abatement programs, but at much reduced cost. Thus, to
the extent that interim control strategies are used rather than
abatement, the actual costs may be different from those presented
below.
The play area is assumed to be much smaller than the entire remote
area of the yard, and separate soil intervention unit costs were
estimated for the play area. The costs assume that the average play
area for a single-family home is 200 square feet, and the average play
area for a multi-family building is 400 square feet. The play area soil
intervention costs are estimated to be: $1,070 for a single-family
house ($1,738 if the soil is hazardous), and $1,566 for multi-family
buildings ($2,903 if the waste is hazardous). In addition to these soil
intervention costs, each home incurs a dust clean-up. Because dust
clean-ups are required for certain other interventions, a particular
home may already be incurring dust clean-up costs and would not incur a
second set of dust clean-up costs.
The total costs (estimated over a 50-year span, and discounted at
3%) for the final dust and soil standards of 40 g/
ft2 for floor dust, 250 g/ft2 for window
sill dust and 1,200 ppm for soil, are estimated to be $69 billion,
while the total estimated benefits are $192 billion using the IEUBK
model and $49 billion using the empirical model, resulting in estimated
net benefits of $123 billion using the IEUBK model and $20 billion
using the empirical model. About 26.7 million homes are projected to
exceed one or more of the standards, and the Agency projected
approximately 46.0 million children would experience reduced exposure
to household lead in soil, dust, and paint.
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), the Agency hereby certifies that this final rule
will not have a significant economic impact on a substantial number of
small entities. The factual basis for the Agency's determination is
presented in the small entity impact analysis prepared as part of the
economic analysis for this rule (Ref. 14), and is briefly summarized
here.
It is important to first note that this rule does not, in and of
itself, mandate any action, or directly impose any costs. Nevertheless,
since the Agency recognizes that the existence of the hazard standards
may influence the decisions or actions of owners of target housing, the
Agency has considered the potential costs and benefits associated with
the possible actions that a small entity could or might take based on
the hazard standard. In addition, EPA has already promulgated several
regulations implementing other sections of Title X that use or
reference the hazard standards contained in this rule, and also has a
few other related regulations under development. In promulgating these
regulations, the Agency has and will continue to consider the potential
adverse impacts on small entities in the context of those regulations,
and in compliance with the RFA. In general, EPA strives to minimize
potential adverse impacts on small entities when developing regulations
to achieve the environmental and human health protection goals of the
statute, and the Agency.
For the purpose of analyzing the potential impacts of this rule on
small entities, EPA used the definition for small entities that is
found in section 601 of the RFA. Under section 601, ``small entity'' is
defined as: (1) A small business that meets Small Business
Administration (SBA) size standards codified at 13 CFR 121.201 which
uses the NAICS codes to categorize businesses; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field. The
SBA size standard for the types of small businesses potentially
impacted by this rule is $5 million in annual revenues for operators of
multi-family housing or apartment buildings (NAICS code 531110 and
531311).
It its analysis, the Agency has assumed that this rule would impact
small businesses that engage in lead-based paint activities (i.e.,
abatement, risk assessment, etc.), small businesses that offer LBP
activity related training, small businesses that own or manage rental
properties involving target housing, small not-for-profit organizations
that are engaged in LBP activities and are not dominant in their field,
and small governmental jurisdictions that receive assistance through
Federal housing programs (i.e., city and county public housing
authorities). By definition, States and Federal agencies are not small.
Based on the analysis, the Agency estimates that approximately 99%
of the firms would have less than a 1% impact on revenues due to this
rule, and approximately 1% of firms could experience impacts between 1%
and 3% of rental revenue. A comparison of annual compliance costs to
annual rental income is equivalent to the commonly used ratio of
compliance costs to sales. Although the rule could impact a substantial
number of small entities, this analysis indicates that the potential
impact should not be significant.
Information relating to this determination has been provided to the
Chief Counsel for Advocacy of the Small Business Administration upon
request,
[[Page 1236]]
and is included in the public version of the official record for this
rulemaking.
C. Paperwork Reduction Act
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information subject to OMB approval under
the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.) unless it
displays a currently valid OMB control number. The OMB control numbers
for EPA's regulations, after initial publication in the Federal
Register, are maintained in a list at 40 CFR part 9.
This final regulatory action does not contain any information
collection requirements that require additional OMB approval under the
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. Specifically,
States and Tribes with authorized programs under 40 CFR part 745,
subpart L will still need to demonstrate their standards for
identifying lead-based paint hazards and clearance standards for dust,
in the reports that they submit to EPA under 40 CFR 745.324(h). This
reporting requirement is contained in the regulations implementing TSCA
sections 402(a) and 404, for which the Information Collection Request
(ICR) has already been approved by OMB under control number 2070-0155
(EPA ICR No. 1715). As a part of the economic analysis, EPA also re-
examined this ICR and determined that the burden estimates provided in
the ICR would not change as a result of the promulgation of the
standards proposed. Because there are no new information collection
requirements to consider, or any changes to the existing requirements
that might impact the existing burden estimates, additional OMB review
and approval under the PRA is not necessary.
D. Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, EPA has determined that this rule does not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any 1 year. As indicated
previously, this rule does not, in and of itself, mandate any action,
or directly impose any costs. Nevertheless, the Agency recognizes that
the existence of the hazard standards may influence the decisions or
actions of State, local or tribal governmental officials as they relate
to lead-based paint activities, i.e., hazard interventions and risk
assessments. In addition, EPA has already promulgated several
regulations implementing other sections of Title X that use or
reference the hazard standards contained in this rule, and has a few
other related regulations under development. In promulgating these
regulations, the Agency has and will continue to consider the potential
impacts on State, local or tribal governments.
The UMRA requirements in sections 202, 204, and 205 do not apply to
this rule, because this action does not contain any ``Federal
mandates'' or impose any ``enforceable duty'' on State/Tribal, or local
governments or on the private sector. The requirements in section 203
do not apply because this rule does not contain any regulatory
requirements that might significantly or uniquely affect small
governments.
E. Executive Order 13132
Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications, because it
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. Although the
standards established by this regulation may be adopted by any State,
this regulation does not contain any mandates, and will not, therefore,
impose any substantial direct costs on States. Nor would the rule
substantially affect the relationship between the national government
and the States, or the distribution of power and responsibilities among
the various levels of government. Thus, Executive Order 13132 does not
apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA involved State and local governmental agencies in an
extensive ``dialogue'' process, which is discussed in more detail in
Unit II of the preamble to the proposal (63 FR at 30307). During
development of the proposed rule, EPA also consulted with the States at
meetings of the Forum on State and Tribal Toxics Action and the annual
EPA meeting with State program representatives.
F. Executive Order 13084
Under Executive Order 13084, entitled Consultation and Coordination
with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not
issue a regulation that is not required by statute, that significantly
or uniquely affects the communities of Indian tribal governments, and
that imposes substantial direct compliance costs on those communities,
unless the Federal government provides the funds necessary to pay the
direct compliance costs incurred by the tribal governments, or EPA
consults with those governments.
This rule does not significantly or uniquely affect the communities
of Indian tribal governments, nor does it impose substantial direct
compliance costs on such communities. Accordingly, the requirements of
section 3(b) of Executive Order 13084 do not apply to this rule.
Nevertheless, although tribal governments are not required to
administer any of the Lead Programs, the Agency consulted with
interested Tribal government representatives as part of the Forum on
State and Tribal Toxics Action and EPA's annual national lead meeting
with States and tribes. The Agency has also provided extensive
technical and financial assistance.
G. Executive Order 12898
Pursuant to Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994), the Agency has considered
environmental justice-related issues with regard to the potential
impacts of this action on the environmental and health conditions in
minority and low-income populations. The Agency's standards will
protect children in minority and low-income communities from
disproportionate burdens. This is based on the findings of the Agency's
economic analysis which shows that non-white populations receive more
of the public health benefit associated with the standards.
In addition, EPA consulted with representatives of a variety of
interests, including members of environmental justice advocacy groups.
The Dialogue Process, which EPA specifically established to provide
input into the decision making process, included a low-income parent,
two members of the National Environmental Justice Advisory Council, and
representatives
[[Page 1237]]
of two other groups who spoke on behalf of disadvantaged populations.
These individuals comprised 20% of the membership of the process.
Moreover, during the public comment period, EPA held two public
meetings where residents of low-income communities and representatives
of environmental justice groups offered public comment to EPA. The
Agency also received written comments from 50 groups and several
hundred individuals raising environmental justice concerns.
Consequently, EPA believes that it has complied with the provision of
the executive order to provide representatives of environmental justice
interests to participate fully in the process and to provide input and
comment to the Agency.
Furthermore, recognizing that these standards would be used by and
affect millions of people that do not have a comprehensive
understanding of the science of lead hazards, EPA made a conscious
decision to make the standards simple. For example, instead of joint
standards that might have better reflected overall risk under some
circumstances, EPA chose to establish media-specific standards because
they are easier to understand and use. Outreach documents (e.g, fact
sheets) are written and designed with the specific objective of making
the regulation easy for the public to understand. In addition, EPA's
broader lead outreach program includes extensive elements that
specifically target non-white and low income communities.
H. Executive Order 13045
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to this rule because OMB has determined that this rule
is ``economically significant'' as defined under Executive Order 12866
(see Unit VI.A.). In addition, the environmental health or safety risk
addressed by this rule may have a disproportionate affect on children.
In accordance with section 5(501) of Executive Order 13045, EPA has
evaluated the environmental health or safety effects of lead-based
paint on children in the selection of the hazard standards contained in
this rule. The results of this evaluation are contained in the ``Risk
Analysis to Support Standards for Lead in Paint, Dust, and Soil'' and
the supplement to this analysis. Copies of these documents have been
placed in the public version of the official record for this rule. This
analysis focused almost exclusively on assessing exposure and risk to
young children.
Moreover, the standards selected by EPA are designed first and
foremost to protect children from lead in residential paint, dust, and
soil. In this regard, EPA believes that it has selected the most
protective standards possible. Although the Agency could have selected
numerically more stringent standards, EPA concluded that more stringent
standards would afford less protection to children because EPA believes
that limited resources would be diluted and possibly diverted from
children who are at greatest risk. The standards will also protect
children by supporting implementation of other provisions of the
national lead program, such as hazard disclosure prior to the sale or
rental of most pre-1978 housing and evaluation and control of lead-
based paint hazards and Federally-assisted and Federally owned housing
prior to disposition.
I. National Technology Transfer and Amendment Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
The Agency has determined that there are no voluntary consensus
standards for lead-based paint hazards. However, the Agency has, where
appropriate, referred to voluntary consensus standards developed by
such organizations as the American Society for Testing and Materials
(ASTM) with respect to sampling and analytical methods.
J. Executive Order 12630
EPA has complied with Executive Order 12630, entitled Governmental
Actions and Interference with Constitutionally Protected Property
Rights (53 FR 8859, March 15, 1988), by examining the takings
implications of this rule in accordance with the ``Attorney General's
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings'' issued under the Executive Order.
K. Executive Order 12988
In issuing this rule, EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct, as required by
section 3 of Executive Order 12988, entitled Civil Justice Reform (61
FR 4729, February 7, 1996).
VII. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a major rule may take effect, the Agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and the Comptroller General
of the United States. EPA has submitted a report containing this rule
and other required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the United States. This
rule is a ``major rule'' as defined by 5 U.S.C. 804(2). A major rule
cannot take effect until 60 days after date it is published in the
Federal Register or is submitted to Congress whichever is later. This
rule will take effect on March 6, 2001.
List of Subjects in 40 CFR Part 745
Environmental protection, Hazardous substances, Lead poisoning,
Reporting and recordkeeping requirements.
Dated: December 22, 2000.
Carol M. Browner,
Administrator.
Therefore, 40 CFR part 745 is amended as follows:
PART 745--AMENDED
1. The authority citation for part 745 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
2. By adding new subpart D to read as follows:
Subpart D--Lead-Based Paint Hazards
Sec.
745.61 Scope and applicability.
745.63 Definitions.
745.65 Lead-based paint hazards.
Subpart D--Lead-Based Paint Hazards
Sec. 745.61 Scope and applicability.
(a) This subpart identifies lead-based paint hazards.
[[Page 1238]]
(b) The standards for lead-based paint hazards apply to target
housing and child-occupied facilities.
(c) Nothing in this subpart requires the owner of property(ies)
subject to these standards to evaluate the property(ies) for the
presence of lead-based paint hazards or take any action to control
these conditions if one or more of them is identified.
Sec. 745.63 Definitions.
The following definitions apply to part 745.
Arithmetic mean means the algebraic sum of data values divided by
the number of data values (e.g., the sum of the concentration of lead
in several soil samples divided by the number of samples).
Chewable surface means an interior or exterior surface painted with
lead-based paint that a young child can mouth or chew. A chewable
surface is the same as an ``accessible surface'' as defined in 42
U.S.C. 4851b(2)). Hard metal substrates and other materials that cannot
be dented by the bite of a young child are not considered chewable.
Common area group means a group of common areas that are similar in
design, construction, and function. Common area groups include, but are
not limited to hallways, stairwells, and laundry rooms.
Concentration means the relative content of a specific substance
contained within a larger mass, such as the amount of lead (in
micrograms per gram or parts per million by weight) in a sample of dust
or soil.
Deteriorated paint means any interior or exterior paint or other
coating that is peeling, chipping, chalking or cracking, or any paint
or coating located on an interior or exterior surface or fixture that
is otherwise damaged or separated from the substrate.
Dripline means the area within 3 feet surrounding the perimeter of
a building.
Friction surface means an interior or exterior surface that is
subject to abrasion or friction, including, but not limited to, certain
window, floor, and stair surfaces.
Impact surface means an interior or exterior surface that is
subject to damage by repeated sudden force such as certain parts of
door frames.
Interior window sill means the portion of the horizontal window
ledge that protrudes into the interior of the room.
Lead-based paint hazard means hazardous lead-based paint, dust-lead
hazard or soil-lead hazard as identified in Sec. 745.65.
Loading means the quantity of a specific substance present per unit
of surface area, such as the amount of lead in micrograms contained in
the dust collected from a certain surface area divided by the surface
area in square feet or square meters.
Mid-yard means an area of a residential yard approximately midway
between the dripline of a residential building and the nearest property
boundary or between the driplines of a residential building and another
building on the same property.
Play area means an area of frequent soil contact by children of
less than 6 years of age as indicated by, but not limited to, such
factors including the following: the presence of play equipment (e.g.,
sandboxes, swing sets, and sliding boards), toys, or other children's
possessions, observations of play patterns, or information provided by
parents, residents, care givers, or property owners.
Residential building means a building containing one or more
residential dwellings.
Room means a separate part of the inside of a building, such as a
bedroom, living room, dining room, kitchen, bathroom, laundry room, or
utility room. To be considered a separate room, the room must be
separated from adjoining rooms by built-in walls or archways that
extend at least 6 inches from an intersecting wall. Half walls or
bookcases count as room separators if built-in. Movable or collapsible
partitions or partitions consisting solely of shelves or cabinets are
not considered built-in walls. A screened in porch that is used as a
living area is a room.
Soil sample means a sample collected in a representative location
using ASTM E1727, ``Standard Practice for Field Collection of Soil
Samples for Lead Determination by Atomic Spectrometry Techniques,'' or
equivalent method.
Weighted arithmetic mean means the arithmetic mean of sample
results weighted by the number of subsamples in each sample. Its
purpose is to give influence to a sample relative to the surface area
it represents. A single surface sample is comprised of a single
subsample. A composite sample may contain from two to four subsamples
of the same area as each other and of each single surface sample in the
composite. The weighted arithmetic mean is obtained by summing, for all
samples, the product of the sample's result multiplied by the number of
subsamples in the sample, and dividing the sum by the total number of
subsamples contained in all samples. For example, the weighted
arithmetic mean of a single surface sample containing 60 g/
ft2, a composite sample (three subsamples) containing 100
g/ft2, and a composite sample (4 subsamples)
containing 110 g/ft2 is 100 g/
ft2. This result is based on the equation
[60+(3*100)+(4*110)]/(1+3+4).
Window trough means, for a typical double-hung window, the portion
of the exterior window sill between the interior window sill (or stool)
and the frame of the storm window. If there is no storm window, the
window trough is the area that receives both the upper and lower window
sashes when they are both lowered. The window trough is sometimes
referred to as the window ``well.''
Wipe sample means a sample collected by wiping a representative
surface of known area, as determined by ASTM E1728, ``Standard Practice
for Field Collection of Settled Dust Samples Using Wipe Sampling
Methods for Lead Determination by Atomic Spectrometry Techniques, or
equivalent method, with an acceptable wipe material as defined in ASTM
E 1792, ``Standard Specification for Wipe Sampling Materials for Lead
in Surface Dust.''
Sec. 745.65 Lead-based paint hazards.
(a) Paint-lead hazard. A paint-lead hazard is any of the following:
(1) Any lead-based paint on a friction surface that is subject to
abrasion and where the lead dust levels on the nearest horizontal
surface underneath the friction surface (e.g., the window sill, or
floor) are equal to or greater than the dust-lead hazard levels
identified in paragraph (b) of this section.
(2) Any damaged or otherwise deteriorated lead-based paint on an
impact surface that is caused by impact from a related building
component (such as a door knob that knocks into a wall or a door that
knocks against its door frame.
(3) Any chewable lead-based painted surface on which there is
evidence of teeth marks.
(4) Any other deteriorated lead-based paint in any residential
building or child-occupied facility or on the exterior of any
residential building or child-occupied facility.
(b) Dust-lead hazard. A dust-lead hazard is surface dust in a
residential dwelling or child-occupied facility that contains a mass-
per-area concentration of lead equal to or exceeding 40 g/
ft2 on floors or 250 g/ft2 on interior
window sills based on wipe samples.
(c) Soil-lead hazard. A soil-lead hazard is bare soil on
residential real property or on the property of a child-occupied
facility that contains total lead equal to or exceeding 400 parts per
million (g/g) in a play area or average of 1,200 parts per
million of bare soil in the rest of the yard based on soil samples.
[[Page 1239]]
(d) Work practice requirements. Applicable certification, occupant
protection, and clearance requirements and work practice standards are
found in regulations issued by EPA at 40 CFR part 745, subpart L and in
regulations issued by the Department of Housing and Urban Development
(HUD) at 24 CFR part 35, subpart R. The work practice standards in
those regulations do not apply when treating paint-lead hazards of less
than:
(1) Two square feet of deteriorated lead-based paint per room or
equivalent,
(2) Twenty square feet of deteriorated paint on the exterior
building, or
(3) Ten percent of the total surface area of deteriorated paint on
an interior or exterior type of component with a small surface area.
3. In Sec. 745.223, by removing the definitions for ``Lead-
contaminated dust'' and ``Lead-contaminated soil,'' and by revising
paragraph (1) of the definition of ``Abatement,'' to read as follows:
Sec. 745.223 Definitions.
* * * * *
Abatement * * *
(1) The removal of paint and dust, the permanent enclosure or
encapsulation of lead-based paint, the replacement of painted surfaces
or fixtures, or the removal or permanent covering of soil, when lead-
based paint hazards are present in such paint, dust or soil; and
* * * * *
4. In Sec. 745.227, by revising paragraphs (d)(4), (d)(5), (d)(6)
introductory text, (d)(7), (e)(7)(i), (e)(7)(ii), (e)(8)(ii),
(e)(8)(v)(A), (e)(8)(v)(B), (e)(8)(vii), by redesignating paragraph
(d)(8)(ii) as paragraph (d)(8)(iii) and paragraph (h) as paragraph (i),
and by adding paragraphs (d)(8)(ii), (e)(8)(viii), and (h) to read as
follows:
Sec. 745.227 Work practice standards for conducting lead-based paint
activities: target housing and child-occupied facilities.
* * * * *
(d) * * *
(4) The following surfaces which are determined, using documented
methodologies, to have a distinct painting history, shall be tested for
the presence of lead:
(i) Each friction surface or impact surface with visibly
deteriorated paint; and
(ii) All other surfaces with visibly deteriorated paint.
(5) In residential dwellings, dust samples (either composite or
single-surface samples) from the interior window sill(s) and floor
shall be collected and analyzed for lead concentration in all living
areas where one or more children, age 6 and under, are most likely to
come into contact with dust.
(6) For multi-family dwellings and child-occupied facilities, the
samples required in paragraph (d)(4) of this section shall be taken. In
addition, interior window sill and floor dust samples (either composite
or single-surface samples) shall be collected and analyzed for lead
concentration in the following locations:
* * * * *
(7) For child-occupied facilities, interior window sill and floor
dust samples (either composite or single-surface samples) shall be
collected and analyzed for lead concentration in each room, hallway or
stairwell utilized by one or more children, age 6 and under, and in
other common areas in the child-occupied facility where one or more
children, age 6 and under, are likely to come into contact with dust.
(8) * * *
(ii) The rest of the yard (i.e., non-play areas) where bare soil is
present.
* * * * *
(e) * * *
(7) * * *
(i) If the soil is removed:
(A) The soil shall be replaced by soil with a lead concentration as
close to local background as practicable, but no greater than 400 ppm.
(B) The soil that is removed shall not be used as top soil at
another residential property or child-occupied facility.
(ii) If soil is not removed, the soil shall be permanently covered,
as defined in Sec. 745.223.
(8) * * *
(ii) Following the visual inspection and any post-abatement cleanup
required by paragraph (e)(8)(i) of this section, clearance sampling for
lead in dust shall be conducted. Clearance sampling may be conducted by
employing single-surface sampling or composite sampling techniques.
* * * * *
(v) * * *
(A) After conducting an abatement with containment between abated
and unabated areas, one dust sample shall be taken from one interior
window sill and from one window trough (if present) and one dust sample
shall be taken from the floors of each of no less than four rooms,
hallways or stairwells within the containment area. In addition, one
dust sample shall be taken from the floor outside the containment area.
If there are less than four rooms, hallways or stairwells within the
containment area, then all rooms, hallways or stairwells shall be
sampled.
(B) After conducting an abatement with no containment, two dust
samples shall be taken from each of no less than four rooms, hallways
or stairwells in the residential dwelling or child-occupied facility.
One dust sample shall be taken from one interior window sill and window
trough (if present) and one dust sample shall be taken from the floor
of each room, hallway or stairwell selected. If there are less than
four rooms, hallways or stairwells within the residential dwelling or
child-occupied facility then all rooms, hallways or stairwells shall be
sampled.
* * * * *
(vii) The certified inspector or risk assessor shall compare the
residual lead level (as determined by the laboratory analysis) from
each single surface dust sample with clearance levels in paragraph
(e)(8)(viii) of this section for lead in dust on floors, interior
window sills, and window troughs or from each composite dust sample
with the applicable clearance levels for lead in dust on floors,
interior window sills, and window troughs divided by half the number of
subsamples in the composite sample. If the residual lead level in a
single surface dust sample equals or exceeds the applicable clearance
level or if the residual lead level in a composite dust sample equals
or exceeds the applicable clearance level divided by half the number of
subsamples in the composite sample, the components represented by the
failed sample shall be recleaned and retested.
(viii) The clearance levels for lead in dust are 40 g/
ft2 for floors, 250 g/ft2 for interior
window sills, and 400 g/ft2 for window troughs.
* * * * *
(h) Determinations. (1) Lead-based paint is present:
(i) On any surface that is tested and found to contain lead equal
to or in excess of 1.0 milligrams per square centimeter or equal to or
in excess of 0.5% by weight; and
(ii) On any surface like a surface tested in the same room
equivalent that has a similar painting history and that is found to be
lead-based paint.
(2) A paint-lead hazard is present:
(i) On any friction surface that is subject to abrasion and where
the lead dust levels on the nearest horizontal surface underneath the
friction surface (e.g., the window sill or floor) are equal to or
greater than the dust hazard levels identified in Sec. 745.227(b);
(ii) On any chewable lead-based paint surface on which there is
evidence of teeth marks;
(iii) Where there is any damaged or otherwise deteriorated lead-
based paint on an impact surface that is cause by
[[Page 1240]]
impact from a related building component (such as a door knob that
knocks into a wall or a door that knocks against its door frame; and
(iv) If there is any other deteriorated lead-based paint in any
residential building or child-occupied facility or on the exterior of
any residential building or child-occupied facility.
(3) A dust-lead hazard is present in a residential dwelling or
child occupied facility:
(i) In a residential dwelling on floors and interior window sills
when the weighted arithmetic mean lead loading for all single surface
or composite samples of floors and interior window sills are equal to
or greater than 40 g/ft2 for floors and 250
g/ft2 for interior window sills, respectively;
(ii) On floors or interior window sills in an unsampled residential
dwelling in a multi-family dwelling, if a dust-lead hazard is present
on floors or interior window sills, respectively, in at least one
sampled residential unit on the property; and
(iii) On floors or interior window sills in an unsampled common
area in a multi-family dwelling, if a dust-lead hazard is present on
floors or interior window sills, respectively, in at least one sampled
common area in the same common area group on the property.
(4) A soil-lead hazard is present:
(i) In a play area when the soil-lead concentration from a
composite play area sample of bare soil is equal to or greater than 400
parts per million; or
(ii) In the rest of the yard when the arithmetic mean lead
concentration from a composite sample (or arithmetic mean of composite
samples) of bare soil from the rest of the yard (i.e., non-play areas)
for each residential building on a property is equal to or greater than
1,200 parts per million.
5. In Sec. 745.325, by revising paragraphs (d)(2)(iii)(A) and
(d)(2)(iii)(B), by redesignating (d)(2)(iv) and (d)(2)(v) as (d)(2)(v)
and (d)(2)(vi), respectively, and by adding paragraphs (d)(2)(iii)(C),
(d)(2)(iii)(D), (d)(2)(iv), and (e), to read as follows:
Sec. 745.325 Lead-based paint activities: State and Tribal program
requirements.
* * * * *
(d) * * *
(2) * * *
(iii) * * *
(A) An assessment, including a visual inspection, of the physical
characteristics of the residential dwelling or child-occupied facility;
(B) Environmental sampling for lead in paint, dust, and soil;
(C) Environmental sampling requirements for lead in paint, dust,
and soil that allow for comparison to the standards for lead-based
paint hazards established or revised by the State or Indian Tribe
pursuant to paragraph (e) of this section; and
(D) A determination of the presence of lead-based paint hazards
made by comparing the results of visual inspection and environmental
sampling to the standards for lead-based paint hazards established or
revised by the State or Indian Tribe pursuant to paragraph (e) of this
section.
(iv) The program elements required in paragraph (d)(2)(iii)(C) and
(d)(2)(iii)(D) of this section shall be adopted in accordance with the
schedule for the demonstration required in paragraph (e) of this
section.
* * * * *
(e) The State or Indian Tribe must demonstrate that it has
standards for identifying lead-based paint hazards and clearance
standards for dust, that are at least as protective as the standards in
Sec. 745.227 as amended on February 5, 2001. A State or Indian Tribe
with such a section 402 program approved before February 5, 2003 shall
make this demonstration no later than the first report submitted
pursuant to Sec. 745.324(h) on or after February 5, 2003. A State or
Indian Tribe with such a program submitted but not approved before
February 5, 2003 may make this demonstration by amending its
application or in its first report submitted pursuant to
Sec. 745.324(h). A State or Indian Tribe submitting its program on or
after February 5, 2003 shall make this demonstration in its
application.
[FR Doc. 01-84 Filed 1-4-01; 8:45 am]
BILLING CODE 6560-50-S