
[Federal Register: October 6, 2009 (Volume 74, Number 192)]
[Notices]               
[Page 51274-51276]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc09-42]                         

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2009-0665; FRL-8793-3]

 
Lead Dust Hazard Standards and Definition of Lead-Based Paint; 
TSCA Section 21 Petition; Notice of Receipt and Request for Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: This notice announces that EPA has received a petition from 
the National Center for Healthy Housing, Alliance for Healthy Homes, 
Sierra Club, et al., (petitioners) on August 10, 2009, and requests 
comments on issues raised by the petition. The petition requests, under 
section 21 of the Toxic Substances Control Act (TSCA) or, in the 
alternative, under 5 U.S.C. 553(c), EPA to lower the regulatory lead 
dust standards and modify the regulatory definition of lead-based 
paint. EPA must either grant or deny a TSCA section 21 petition within 
90 days of filing.

DATES: Comments must be received on or before October 21, 2009.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2009-0655, by one of the following methods:
      Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
      Mail: Document Control Office (7407M), Office of 
Pollution Prevention and Toxics (OPPT), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
      Hand Delivery: OPPT Document Control Office (DCO), EPA 
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. 
Attention: Docket ID Number EPA-HQ-OPPT-2009-0655. The DCO is open from 
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the DCO is (202) 564-8930. Such deliveries are 
only accepted during the DCO's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2009-0655. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index 
available at http://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available 
electronically at http://www.regulations.gov, or, if only available in 
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA 
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution 
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of 
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number of the EPA/DC Public Reading Room 
is (202) 566-1744, and the telephone number for the OPPT Docket is 
(202) 566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Linter, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: TSCA-
Hotline@epa.gov.
    For technical information contact: Christina Wadlington, National 
Program Chemicals Division (7404T), Office Pollution Prevention and 
Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (202) 566-1859; e-mail 
address: wadlington.christina@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

     This action is directed to the public in general. This action may, 
however, be of interest to you if you manufacture, process, distribute, 
or use lead-based paint. Since other entities may also be interested, 
the Agency has not attempted to describe all the specific entities that 
may be affected by this action. If you have any questions regarding the 
applicability of this action to a particular entity, consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

     1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and 
then identify electronically within the disk or CD-ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
     2. Tips for preparing your comments. When submitting comments, 
remember to:
     i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).

[[Page 51275]]

     ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
     iv. Describe any assumptions and provide any technical information 
and/or data that you used.
     v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
     vii. Explain your views as clearly as possible, avoiding the use 
of profanity or personal threats.
     viii. Make sure to submit your comments by the comment period 
deadline identified.

II. TSCA Section 21

A. What Is a TSCA Section 21 Petition?

    Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA 
to initiate a rulemaking proceeding for the issuance, amendment, or 
repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA 
section 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the 
facts that are claimed to establish the necessity for the action 
requested. EPA is required to grant or deny a TSCA section 21 petition 
within 90 days of its filing. If EPA grants the petition, the Agency 
must promptly commence an appropriate proceeding. If EPA denies the 
petition, the Agency must publish its reasons for the denial in the 
Federal Register. A petitioner may commence a civil action in a U.S. 
district court to compel initiation of the requested rulemaking 
proceeding within 60 days of either a denial, or if EPA fails to grant 
or deny a TSCA section 21 petition, the expiration of the 90-day 
period.

B. What Criteria Apply to a Decision on a TSCA Section 21 Petition?

    The scope of a TSCA section 21 petition is limited to the issuance, 
amendment, or repeal of a rule under TSCA section 4, 6, or 8 or an 
order under TSCA section 5(e) or 6(b)(2). Section 21(b)(1) of TSCA 
requires that the petition ``set forth the facts which it is claimed 
establish that it is necessary'' to issue the rule or order requested. 
15 U.S.C. 2620(b)(1). Thus, TSCA section 21 implicitly incorporates the 
statutory standards that apply to the requested actions. In addition, 
TSCA section 21 establishes standards a court must use to decide 
whether to order EPA to initiate rulemaking in the event of a lawsuit 
filed by the petitioner after denial of a TSCA section 21 petition. 15 
U.S.C. 2620(b)(4)(B). Accordingly, EPA will refer to the standards in 
TSCA section 21 and in the provisions under which actions have been 
requested to evaluate this petition.

III. Summary of TSCA Section 21 Petition Received

A. What Action was Requested?

    On August 10, 2009, EPA received a petition from the National 
Center for Healthy Housing, Alliance for Healthy Homes, Sierra Club, et 
al., petitioning EPA to amend regulations promulgated under TSCA 
sections 401 and 403. Specifically, the petitioners are requesting that 
EPA:

    ``1. Lower dust lead hazard standards at 40 CFR 745.65(b), 40 
CFR 745.227(e)(8)(viii), and 40 CFR 745.227(h)(3)(i) from 40 
micrograms of lead per square foot of surface area ([mu]g/ft\2\) to 
10 [mu]g/ft\2\ or less for floors and from 250 [mu]g/ft\2\ to 100 
[mu]g/ft\2\ or less for window sills. 2. Modify the definition of 
lead-based paint in 40 CFR 745.103 and 745.223 for previously 
applied paint or other surface coatings in housing, child-occupied 
facilities, public building and commercial buildings to reduce the 
lead levels from 0.5 percent by weight (5,000 parts per million 
(ppm)) to 0.06 percent by weight (600 ppm) with a corresponding 
reduction in the 1.0 milligram per square centimeter standard.''
(Ref. 1) Petition at 2.

B. What Support Do the Petitioners Offer?

    The petitioners provide results of analysis derived from studies 
that have become available since the current dust lead standards were 
promulgated in 2001. Studies referenced by petitioners, include: Dixon 
et al. (2009) (Ref. 2), National Center for Healthy Housing (rev. 2006) 
(Ref. 3), Wilson (2008) (Ref. 4), and the Cincinnati Children's 
Hospital Medical Center's ``HOME Study.''
    Citing their analysis of data from the National Health and 
Nutrition Examination Survey (NHANES) from 1999-2004 (Refs. 2 and 4), 
the petitioners conclude that:
    1. ``4.6% of children with an average age of 33 months living in 
pre-1978 homes would have a blood lead level of 10 [mu]g/[deciliter]dL 
or greater when their floor dust lead loading was 12 [mu]g/ft\2\.''
    2. ``At a floor dust lead loading of 12 [mu]g/ft\2\, there is 95% 
confidence that no more than 7.9% of children would have a blood lead 
level of 10 [mu]g/dL or greater.''
    3. ``5.1% of children would have a blood lead level of 10 [mu]g/dL 
or greater when their window sill dust lead loading was 100 [mu]g/
ft\2\.'' Based on this information the petitioners conclude that 
``[u]sing EPA's criteria of protecting 95% of children from an elevated 
blood lead level (currently defined as 10 [mu]g/dL or greater), dust 
standards of 10 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ for window 
sills should be adopted.'' Petition at 3.
    From their own ``Study of HUD's Risk Assessment Methodology in 
Three U.S. Communities'' (Ref .3), the petitioners assert ``that 
children living in homes with floor dust lead levels under 20 [mu]g/
ft\2\ had proportionally fewer elevated blood lead levels than children 
living in homes where the floor dust lead loading exceeded 20 [mu]g/
ft\2\.'' The petitioners further assert, based on on-going analysis of 
the ``HOME Study,'' that ``lower dust standards are achievable.'' 
Petition at 4.
    The petitioners also contend that ``the economic consequences of a 
rule based on the standards recommended in this petition will be less 
than EPA originally estimated when it adopted the current standards.'' 
They provide that in the January 5, 2001 final rule (Ref. 5), EPA 
estimated that 22 million homes would have lead dust hazards based on a 
standard of 10 [mu]g/ft\2\, and assert that the their ``review of the 
Six-Year Follow-Up Study and the HOME Study demonstrated that current 
lead hazard control practices are adequate to reduce dust lead below 
the levels recommended in the petition.'' The petitioners also assert 
that the ``NHANES data suggest that less than 15% of pre-1978 homes-9.8 
million homes-would be classified as having a dust lead hazard.'' 
Petition at 5.
    When reviewing the regulatory definition of lead-based paint at 40 
CFR 745.103 and 745.223, the petitioners note that EPA simply adopted 
that statutory standard: Lead-based paint means paint or other surface 
coatings that contain lead equal to or in excess of 1.0 mg/cm\2\ or 
more than 0.5% by weight. Petitioners further note that HUD used the 
same definition in its Lead-Safe Housing Rule.
    To support their request that EPA lower the lead level in the 
definition of lead-based paint, petitioners explain that ``under the 
current standards, paint that contains less than 5,000 ppm of lead 
would not be considered lead-based paint. As a result, when a lead 
inspector or lead risk assessor documents levels of 4,500 ppm of lead 
in the paint, the buyer or tenant would be told that lead-based paint 
is not present. The buyer or tenant would be unaware of the potential 
dangers of disturbing the paint.'' Petition at 6.
    The petitioners estimate that ``the economic consequences of this 
change

[[Page 51276]]

in the definition of lead-based paint would primarily impact those 
buildings that already have been tested for the presence of lead-based 
paint by a certified lead risk assessor or lead inspector and found to 
have levels of lead in the paint between 600 ppm and 5,000 ppm (and the 
equivalent in mg/cm\2\).'' Petition at 7.

IV. EPA Seeks Public Comment

    Under TSCA section 21, EPA must either grant or deny a petition 
within 90 days. EPA is providing this opportunity for the public to 
comment on, or provide any additional information relevant to, the 
issues identified in the petition. In order for the Agency to consider 
such comments within the 90-day petition review period, EPA must 
receive the comments on or before October 21, 2009 (see ADDRESSES).
    In assessing the usability of any data or information that may be 
submitted, EPA plans to follow the guidelines in EPA's ``A Summary of 
General Assessment Factors for Evaluating the Quality of Scientific and 
Technical Information'' (EPA 100B-03/001), referred to as the 
``Assessment Factors Document.'' The ``Assessment Factors Document'' 
was published in the Federal Register issue of July 1, 2003 (Ref. 6).

V. References

    1. National Center for Healthy Housing, Alliance for Healthy Homes 
and Sierra Club. Letter from Rebecca Morley, National Center for 
Healthy Housing; Patrick MacRoy, Alliance for Healthy Homes; and Tom 
Neltner, Sierra Club to Administrator Jackson, Environmental Protection 
Agency. Re: Citizen Petition to EPA Regarding the Paint and Dust Lead 
Standards. August 10, 2009.
    2. Dixon, S.L.; Gaitens, J.M.; Jacobs, D.E., et al. (2009) Exposure 
of U.S. children to residential dust lead, 1999-2004: II: The 
contribution of lead-contaminated dust to children's blood lead levels. 
Environmental Health Perspectives. 117(3): 468-474.
    3. National Center for Healthy Housing (rev. 2006) Study of HUDs 
Risk Assessment Methodology in Three U.S. Communities: Final Report, 
Columbia, MD (accessed 5-13-2009: http://www.nchh.org/
LinkClick.aspx?fileticket=HZUenslvU/0=&tabid=217).
    4. Wilson, Jonathan. (2008) Should the EPA Lead Dust Standards be 
Lowered? (accessed 5-8-2009: http://www.healthyhomestraining.org/
Research/Translational_Research_11-17_PbDust_Standard_r2.1.pdf).
    5. EPA. Lead; Identification of Dangerous Levels of Lead; Final 
Rule. Federal Register (66 FR 1206, January 5, 2001) (FRL-6763-5). 
Available on-line at: http://www.gpoaccess.gov/fr/index.html.
    6. EPA. A Summary of General Assessment Factors for Evaluating the 
Quality of Scientific and Technical Information; Notice. Federal 
Register (68 FR 39086, July 1, 2003) (FRL-7520-2). Available on-line at 
http://www.epa.gov/osa/spc/assess.htm.

List of Subjects

    Environmental protection, Lead, Lead-based paint, Lead dust hazard 
standards.


    Dated: September 29, 2009.
James Jones,
Acting Assistant Administrator, Office of Prevention, Pesticides and 
Toxic Substances.

[FR Doc. E9-23929 Filed 10-5-09; 8:45 am]

BILLING CODE 6560-50-S
