[Federal Register Volume 83, Number 127 (Monday, July 2, 2018)]
[Proposed Rules]
[Pages 30889-30901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14094]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Proposed 
Rules  

[[Page 30889]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2018-0166; FRL-9976-04]
RIN 2070-AJ82


Review of the Dust-Lead Hazard Standards and the Definition of 
Lead-Based Paint

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Addressing childhood lead exposure is a priority for EPA. As 
part of EPA's efforts to reduce childhood lead exposure, EPA evaluated 
the current dust-lead hazard standards (DLHS) and the definition of 
lead-based paint (LBP). Based on this evaluation, EPA is proposing to 
lower the DLHS from 40 [mu]g/ft\2\ and 250 [mu]g/ft\2\ to 10 [mu]g/
ft\2\ and 100 [mu]g/ft\2\ on floors and window sills, respectively. EPA 
is proposing no changes to the current definition of LBP due to 
insufficient information to support such a change.

DATES: Comments must be received on or before August 16, 2018.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2018-0166, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute.
     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: To make special arrangements for hand 
delivery or delivery of boxed information, please follow the 
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along 
with more information about dockets generally, is available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
John Yowell, National Program Chemicals Division, Office of Pollution 
Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 202-
564-1213; email address: [email protected].
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Does this action apply to me?

    You may be potentially affected by this action if you conduct LBP 
activities in accordance with 40 CFR 745.227, if you operate a training 
program required to be accredited under 40 CFR 745.225, if you are a 
firm or individual who must be certified to conduct LBP activities in 
accordance with 40 CFR 745.226, or if you conduct rehabilitations in 
accordance with 24 CFR 35. You may also be affected by this action, in 
accordance with 40 CFR 745.107, as the seller or lessor of target 
housing, which is most pre-1978 housing. See 40 CFR 745.103. For 
further information regarding the authorization status of States, 
territories, and Tribes, contact the National Lead Information Center 
at 1-800-424-LEAD (5323). The following list of North American 
Industrial Classification System (NAICS) codes is not intended to be 
exhaustive, but rather provides a guide to help readers determine 
whether this document applies to them. Potentially affected entities 
may include:
     Building construction (NAICS code 236), e.g., single-
family housing construction, multi-family housing construction, 
residential remodelers.
     Specialty trade contractors (NAICS code 238), e.g., 
plumbing, heating, and air-conditioning contractors, painting and wall 
covering contractors, electrical contractors, finish carpentry 
contractors, drywall and insulation contractors, siding contractors, 
tile and terrazzo contractors, glass and glazing contractors.
     Real estate (NAICS code 531), e.g., lessors of residential 
buildings and dwellings, residential property managers.
     Child day care services (NAICS code 624410).
     Elementary and secondary schools (NAICS code 611110), 
e.g., elementary schools with kindergarten classrooms.
     Other technical and trade schools (NAICS code 611519), 
e.g., training providers.
     Engineering services (NAICS code 541330) and building 
inspection services (NAICS code 541350), e.g., dust sampling 
technicians.
     Lead abatement professionals (NAICS code 562910), e.g., 
firms and supervisors engaged in LBP activities.
     Federal agencies that own residential property (NAICS code 
92511, 92811).
     Property owners, and property owners that receive 
assistance through Federal housing programs (NAICS code 531110, 
531311).

B. What is the Agency's authority for taking this action?

    EPA is proposing this rule under sections 401, 402, 403, and 404 of 
the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601 et seq., as 
amended by Title X of the Housing and Community Development Act of 1992 
(also known as the Residential Lead-Based Paint Hazard Reduction Act of 
1992 or ``Title X'') (Pub. L. 102-550) (Ref. 1). TSCA section 403 (15 
U.S.C. 2683) mandates EPA to identify LBP hazards for purposes of 
administering Title X and TSCA Title IV. Under TSCA section 401 (15 
U.S.C. 2681), LBP hazards are defined as conditions of LBP and lead-
contaminated dust and soil that ``would result in adverse human health 
effects,'' and lead-contaminated dust is defined as ``surface dust in 
residential dwellings'' that contains lead in excess of levels 
determined ``to pose a threat of adverse health effects. . . .'' As 
defined in TSCA section 401 (15 U.S.C. 2681(9)), LBP means:

``paint or other surface coatings that contain lead in excess of 1.0 
milligrams per centimeter squared or 0.5 percent by weight or (A) in 
the case of paint or other surface coatings on target housing, such 
lower level as may be established by the Secretary of [HUD], as 
defined in section 4822(c) of Title 42, or (B) in the case of any 
other paint or

[[Page 30890]]

surface coatings, such other level as may be established by the 
Administrator [of EPA].''

    The amendments to the regulations on LBP activities are being 
proposed pursuant to TSCA section 402 (15 U.S.C 2682). The amendments 
to the regulations on the authorization of State and Tribal Programs 
are being proposed pursuant to TSCA section 404 (15 U.S.C. 2684).
    This proposed rule is being issued in compliance with the December 
27, 2017 decision (``Opinion'') of the Ninth Circuit Court of Appeals, 
and the subsequent March 26, 2018 order that directed the EPA ``to 
issue a proposed rule within ninety (90) days from the filed date of 
this order'' (Ref. 2) (Ref. 3).

C. What action is the Agency taking?

    EPA established dust-lead hazard standards (DLHS) of 40 [mu]g/ft\2\ 
for floors and 250 [mu]g/ft\2\ for window sills in a final rule 
entitled, ``Identification of Dangerous Levels of Lead.'' See 66 FR 
1206, January 5, 2001, also known as the LBP Hazards Rule (Ref. 4). EPA 
is proposing to amend the DLHS set by the LBP Hazards Rule to lower the 
DLHS for floor dust to 10 [mu]g/ft\2\ and to lower the DLHS for window 
sill dust to 100 [mu]g/ft\2\. EPA is requesting comment on the 
achievability and appropriateness of the proposed DLHS. EPA is 
requesting comments on all aspects of this proposal, including any 
options presented in EPA's Technical Support Document that accompanies 
this proposal (Ref. 5), including taking comment on keeping the DLHS at 
the current levels.
    EPA and HUD adopted the statutory definition of LBP in a joint 
final rule entitled, ``Requirements for Disclosure of Known Lead-Based 
Paint and/or Lead-Based Paint Hazards in Housing.'' See 61 FR 9064, 
March 6, 1996, also known as the Disclosure Rule (Ref. 6). EPA is 
proposing no changes to the current definition of LBP due to 
insufficient information to support such a change.

D. Why is the Agency taking this action?

    Reducing childhood lead exposure is an EPA priority, and EPA is 
collaborating with our federal partners to reduce lead exposures and to 
explore ways to increase our relationships and partnerships with 
States, Tribes, and localities. EPA Administrator Scott Pruitt hosted a 
meeting of principals from the 17 federal departments and agencies on 
the President's Task Force on Environmental Health Risks and Safety 
Risks to Children in February 2018. At the meeting, the Task Force 
members committed to make addressing childhood lead exposure a priority 
and to develop a federal strategy to reduce childhood lead exposures. 
Today's proposal is a component of EPA's prioritizing the important 
issue of childhood lead exposure.
    In the 2001 final rule that set the initial hazard standards under 
TSCA section 403, EPA examined the health effects of various dust-lead 
loadings, and analyzed those values against issues of practicality to 
determine the appropriate standards, in accordance with the statute. At 
that time, the Centers for Disease Control and Prevention (CDC) 
identified a test result of 10 [mu]g/dL of lead in blood or higher in 
children as a ``level of concern''. Based on the available science at 
the time, EPA explained that health effects at blood lead levels (BLLs) 
lower than 10 [mu]g/dL were ``less well substantiated.'' Further, the 
Agency acknowledged that the standards were ``based on the best science 
available to the Agency,'' and if new data were to become available, 
EPA would ``consider changing the standards to reflect these data.'' 
(Ref. 4)
    New data have become available since the 2001 final rule that 
indicates that health risks exist at lower BLLs than previously 
recognized. The CDC now considers that no safe BLL in children has been 
identified (Ref. 7), and is no longer using the term ``level of 
concern'' and is instead using the reference value to identify children 
who have been exposed to lead and who should undergo case management 
(Ref. 7). In 2012, CDC established a blood lead ``reference level'' as 
a benchmark for case management (especially assessment of sources of 
lead in their environment and follow up BLL testing). The reference 
level is based on the 97.5th percentile of the U.S. population 
distribution of BLLs in children ages 1-5 from the 2007-2008 and 2009-
2010 National Health and Nutrition Examination Surveys (Ref. 8).
    Current best available science, which, as indicated above, has 
evolved considerably since 2001, informs EPA's understanding of the 
relationship between exposures to dust-lead loadings, blood lead 
levels, and risk of adverse human health effects. This is summarized in 
the Integrated Science Assessment for Lead, (``Lead ISA'') (Ref. 9), 
which EPA released in June 2013, and the National Toxicology Program 
(NTP) Monograph on the Health Effects of Low-Level Lead, which was 
released by the Department of Human Health and Services in June 2012 
(Ref. 10). The Lead ISA is a synthesis and evaluation of policy-
relevant science and includes an analysis of the health effects of BLLs 
lower than 10 [mu]g/dL. These effects include cognitive function 
decrements in children (Ref. 9).
    The NTP, in 2012, completed an evaluation of existing data to 
summarize the scientific evidence regarding health effects associated 
with low-level lead exposure as indicated by BLLs less than 10 [mu]g/
dL. The evaluation specifically focused on the life stage (childhood, 
adulthood) associated with these health effects, as well as on 
epidemiological evidence at BLLs less than 10 [mu]g/dL, because health 
effects at higher BLLs are well-established. The NTP concluded that 
there is sufficient evidence for adverse health effects in children and 
adults at BLLs less than 10 [mu]g/dL, and less than 5 [mu]g/dL. In 
children, there is sufficient evidence that BLLs less than 5 [mu]g/dL 
are associated with increased diagnoses of attention-related behavioral 
problems, greater incidence of problem behaviors, and decreased 
cognitive performance. There is limited evidence that BLLs less than 5 
[mu]g/dL are associated with delayed puberty and decreased kidney 
function in children 12 years of age and older. Additionally, the NTP 
concluded that there is sufficient evidence that BLLs less than 10 
[mu]g/dL are associated with delayed puberty, decreased hearing, and 
reduced post-natal growth (Ref. 10).
    Since 2001, EPA has worked collaboratively with other federal 
partners to promote further understanding of the technical aspects of 
rules in place to reduce exposures to dangerous levels of lead. EPA 
collaborated with HUD to develop the Lead Hazard Control Clearance 
Survey to examine whether HUD's Office of Lead Hazard Control and 
Healthy Homes (OLHCHH) Lead Hazard Control (LHC) grantees could achieve 
dust-lead clearance levels below the current standards. Although this 
proposed rule does not address clearance levels directly, EPA intends 
to review the clearance levels at a later date. The survey is still 
important to this rulemaking because EPA does not want to set a 
standard that cannot be reliably achieved using existing technology. 
The survey concluded that ``a reduction in the federal clearance 
standard for floors from 40 [mu]g/ft\2\ to 10 [mu]g/ft\2\, [and] a 
reduction in the federal clearance standard for windowsills from 250 
[mu]g/ft\2\ to 100 [mu]g/ft\2\ . . . are all technically feasible using 
the methods currently employed by OLHCHH LHC grantees to prepare for 
clearance.'' The survey was completed in October 2015 (Ref. 11).

E. What are the estimated incremental impacts of this action?

    EPA has prepared an Economic Analysis (EA) of the potential

[[Page 30891]]

incremental impacts associated with this rulemaking (Ref. 12) on a 
subset of target housing and child-occupied facilities, which is 
available in the docket. The analysis estimates incremental costs and 
benefits for two categories of events: (1) Where dust-lead testing 
occurs to comply with HUD's Lead-Safe Housing Rule and (2) where dust-
lead testing occurs in response to testing that detects an elevated 
blood lead level in a child. The following is a brief outline of the 
estimated incremental impacts of this rulemaking.
    [ssquf] Benefits. This rule would reduce exposure to lead, 
resulting in benefits from avoided adverse health effects. For the 
subset of adverse health effects where the results were quantified, the 
estimated annualized benefits are $317 million to $2.24 billion per 
year using a 3% discount rate, and $68 million to $479 million using a 
7% discount rate. There are additional unquantified benefits due to 
other avoided adverse health effects in children, including attention-
related behavioral problems, greater incidence of problem behaviors, 
decreased cognitive performance, reduced post-natal growth, delayed 
puberty and decreased kidney function (Ref. 10).
    [ssquf] Costs. This rule is estimated to result in costs of $66 
million to $119 million per year.
    [ssquf] Small entity impacts. This rule would impact 39,000 to 
44,000 small businesses; 38,000 to 42,000 have cost impacts less than 
1% of revenues, 1,000 to 2,000 have impacts between 1% and 3%, and 
approximately 100 have impacts greater than 3% of revenues.
    [ssquf] Environmental Justice and Protection of Children. This rule 
would increase the level of environmental protection for all affected 
populations without having any disproportionately high and adverse 
human health or environmental effects on any population, including any 
minority or low-income population or children.
    [ssquf] Effects on State, local, and Tribal governments. The rule 
would not have any significant or unique effects on small governments, 
or Federalism or Tribal implications.

F. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or email. 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 
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 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).
    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. Background

A. Health Effects

    Lead exposure impacts individuals of all ages, but it is especially 
harmful to children (Ref. 13) (Ref. 14) (Ref. 15). Ingestion of lead-
contaminated soil and dust is a major contributor to BLLs in children 
(Ref. 16) (Ref. 17). Infants and young children can be more highly 
exposed to lead because they often put their hands and other objects 
that can have lead from dust or soil on them into their mouths (Ref. 
15). As mentioned elsewhere in this proposal, data evaluated by the NTP 
demonstrates that there is sufficient evidence to conclude that there 
are adverse health effects associated with low-level lead exposure; 
there is sufficient evidence that, in children, BLLs less than 5 [mu]g/
dL are associated with increased diagnoses of attention-related 
behavioral problems, greater incidence of problem behaviors, and 
decreased cognitive performance (Ref. 10). For further information 
about health effects and lead exposure, see the Lead ISA (Ref. 9).

B. Federal Actions To Reduce Lead Exposures

    In 1992, Congress enacted Title X of the Housing and Community 
Development Act (also known as the Residential Lead-Based Paint Hazard 
Reduction Act of 1992 or Title X) (Ref. 1) in an effort to eliminate 
LBP hazards. Section 1018 of Title X required EPA and HUD to promulgate 
joint regulations for disclosure of any known LBP or any known LBP 
hazards in target housing offered for sale or lease (known as the 
Disclosure Rule) (Ref. 6). (``Target housing'' is defined in section 
401(17) of TSCA, 15 U.S.C. 2681(17)). On March 6, 1996, the Disclosure 
Rule was codified at 40 CFR 745, subpart F, and requires information 
disclosure activities before a purchaser or lessee is obligated under a 
contract to purchase or lease target housing.
    Title X amended TSCA to add a new subchapter entitled ``Title IV--
Lead Exposure Reduction.'' As defined in TSCA section 401 (15 U.S.C. 
2681(9)), LBP means:

``paint or other surface coatings that contain lead in excess of 1.0 
milligrams per centimeter squared or 0.5 percent by weight or (A) in 
the case of paint or other surface coatings on target housing, such 
lower level as may be established by the Secretary of [HUD], as 
defined in section 4822(c) of Title 42, or (B) in the case of any 
other paint or surface coatings, such other level as may be 
established by the Administrator [of EPA].''

This definition was codified as part of the Disclosure Rule (Ref. 6) at 
40 CFR 745, subpart F, and as part of the Lead-based Paint Activities 
Rule (Ref. 18) at 40 CFR 745, subpart L.
    TSCA section 402(a) directs EPA to promulgate regulations covering 
LBP activities to ensure persons performing these activities are 
properly trained, that training programs are accredited, and that 
contractors performing these activities are certified. On August 29, 
1996, EPA promulgated final regulations under TSCA section 402(a) that 
govern LBP inspections, risk assessments, and abatements in target 
housing and child-occupied facilities (COFs) (also referred to as the 
LBP Activities Rule, codified at 40 CFR 745, subpart L) (Ref. 18). The 
definition of ``child-occupied facility'' is codified at 40 CFR 745.223 
for purposes of LBP activities. Regulations promulgated under TSCA 
section 402(a) contain standards for performing LBP activities, taking 
into account reliability, effectiveness, and safety.
    TSCA section 402(c)(3) directs EPA to promulgate regulations 
covering renovation or remodeling activities in target housing, public 
buildings constructed before 1978, and

[[Page 30892]]

commercial buildings that create LBP hazards. EPA promulgated final 
regulations for target housing and COFs in the Lead Renovation, Repair 
and Painting Rule, under TSCA section 402(c)(3) on April 22, 2008 (also 
referred to as the RRP Rule, codified at 40 CFR 745, subpart E) (Ref. 
19). The rule was amended in 2010 (75 FR 24802) (Ref. 20) to eliminate 
a provision for contractors to opt-out of prescribed work practices and 
in 2011 (76 FR 47918) (Ref. 21) to affirm the work practice 
requirements for cleaning verification of renovated or repaired spaces, 
among other things. For further information regarding lead and its 
health effects, and federal actions taken to eliminate LBP hazards in 
housing, see the background section of the RRP Rule.
    TSCA section 403 is a related authority to carry out 
responsibilities for addressing LBP hazards under the Disclosure and 
LBP Activities Rules. Section 403 required EPA to promulgate 
regulations that ``identify . . . lead-based paint hazards, lead-
contaminated dust, and lead-contaminated soil'' for purposes of TSCA 
Title IV and the Residential Lead-Based Paint Hazard Reduction Act of 
1992. LBP hazards, under TSCA section 401, are defined as conditions of 
LBP and lead-contaminated dust and soil that ``would result'' in 
adverse human health effects (15 U.S.C. 2681(10)). TSCA section 401 
defines lead-contaminated dust as ``surface dust in residential 
dwellings'' that contains lead in excess of levels determined ``to pose 
a threat of adverse health effects'' (15 U.S.C. 2681(11)). On January 
5, 2001, EPA promulgated a final rule under TSCA sections 402 and 403 
called the LBP Hazards Rule (Ref. 4). The standards established under 
TSCA section 403 are used to calibrate activities carried out under 
TSCA section 402. As such, the utility of these standards should be 
considered in the context of the activities to which they are applied.
    Pursuant to TSCA section 404, provisions were made for interested 
States, territories, and Tribes to apply for and receive authorization 
to administer their own LBP Activities and RRP programs. Requirements 
applicable to State, territorial, and Tribal programs are codified in 
40 CFR 745, subpart Q. As stated elsewhere in this document, EPA's 
regulations are intended to reduce exposures and to identify and 
mitigate hazardous levels of lead. Authorized programs must be ``at 
least as protective of human health and the environment as the 
corresponding Federal program,'' and must provide for ``adequate 
enforcement.'' See 40 CFR 745.324(e)(2).
    HUD's Lead Safe Housing Rule (LSHR) is codified in 24 CFR 35, 
subparts B through R. The LSHR implements sections 1012 and 1013 of 
Title X. Under Title X, HUD has specific authority to control LBP and 
LBP hazards in federally-assisted target housing. The LSHR aims in part 
to ensure that federally-owned or federally-assisted target housing is 
free of LBP hazards (Ref. 22). Under the LSHR, when a child under age 
six (6) with an elevated blood lead level (EBLL) is identified, the 
``designated party'' and/or the housing owner shall undertake certain 
actions.
    HUD amended the LSHR in 2017, lowering its standard for identifying 
children with EBLLs from 20 [mu]g/dL to 5 [mu]g/dL, aligning its 
standard with CDC's reference level. The amendments also included 
revising HUD's ``Environmental Investigation Blood Lead Level'' (EIBLL) 
to the EBLL, changing the level of investigation required for a housing 
unit of a child with an EBLL to an ``environmental investigation'' and 
adding a requirement for testing in other covered units when a child is 
identified in a multiunit property. HUD may revisit and revise the 
agency's EBLL via the notice and comment process, as provided by the 
definition of EBLL in the amended rule, if it is appropriate to do so 
in order to align with future changes to CDC's reference level. (Ref. 
22).

C. Applicability and Uses of the DLHS

    The DLHS reviewed in this regulation support the Lead-based Paint 
Activities and Disclosure programs, and apply to target housing (i.e., 
most pre-1978 housing) and COFs (pre-1978 non-residential properties 
where children under the age of 6 spend a significant amount of time 
such as daycare centers and kindergartens). Apart from COFs, no other 
public and commercial buildings are covered by this rule. For further 
background on the types of buildings to which lead program rules apply, 
refer to the proposed and final LBP Hazards Rule (Ref. 4).
    Within the scope of Title X, the DLHS support and implement major 
provisions of the statute. They were incorporated into the requirements 
and risk assessment work practice standards in the LBP Activities Rule; 
the relationship between post-abatement clearance and the DLHS is 
discussed in further detail elsewhere in this proposal. The DLHS 
provide the basis for risk assessors to determine whether LBP hazards 
are present. The objective of a risk assessment is to determine, and 
then report, the existence, nature, severity, and location of LBP 
hazards in residential dwellings and COFs through an on-site 
investigation. If LBP hazards are found, the risk assessor will also 
identify acceptable options for controlling the hazards in each 
property. These options should allow the property owner to make an 
informed decision about what actions should be taken to protect the 
health of current and future residents. Risk assessments can only be 
performed by certified risk assessors.
    The risk assessment entails both a visual assessment and collection 
of environmental samples. The environmental samples include, among 
other things, dust samples from floors and window sills which are sent 
to a laboratory for analysis. When the lab results are received, the 
risk assessor compares them to the DLHS. If the dust-lead loadings from 
the samples are above the applicable DLHS, then a hazard is present. 
Any hazards found are listed in a report prepared for the property 
owner by the risk assessor.
    For the Disclosure Rule 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 LBP and LBP hazards to the purchaser or lessee (24 CFR 35, 
subpart A; 40 CFR 745, subpart F). Under these regulations, the seller 
or lessor also must provide the purchaser or lessee any available 
records or reports ``pertaining to'' LBP, LBP hazards and/or any lead 
hazard evaluative reports available to the seller or lessor (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 applicable 
hazard standard. 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 LBP free by a 
certified inspector (24 CFR 35.82; 40 CFR 745.101).

D. Limitations of the DLHS

    The proposed standards are intended to identify dust-lead hazards 
when LBP risk assessments are performed. These standards, as were those 
established in 2001, are for the purposes of Title X and TSCA Title IV, 
and therefore they do not apply to housing and COFs built during or 
after 1978, nor do they apply to pre-1978 housing that does not meet 
the definition of target housing. See 40 CFR 745.61. These standards 
cannot be used to identify housing that is free from risks from 
exposure to lead, as risks are

[[Page 30893]]

dependent on many factors. For instance, the physical condition of a 
property that contains LBP may change over time, resulting in an 
increased risk of exposure. If one chooses to apply the DLHS 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.
    The DLHS do not require the owners of properties covered by this 
proposed rule to evaluate their properties for the presence of dust-
lead hazards, or to take action if dust-lead hazards are identified. 
Although these regulations do not compel specific actions to address 
identified hazards, these standards are incorporated into certain 
requirements mandated by State, Federal, Tribal, and local governments. 
EPA acknowledges that if the proposed DLHS were set too low, the 
effectiveness of these programs may be limited since resources for 
hazard mitigation would be distributed more broadly, diverting them 
from situations that present more serious risks. However, EPA does not 
believe that the levels proposed today constrict these programs, 
considering the demonstrated achievability of these levels (Ref. 11). 
As such, these standards are appropriate for incorporation into the 
various assessment and hazard control activities to which they apply.

E. Administrative Petition and Litigation

    On August 10, 2009, EPA received an administrative petition from 
several environmental and public health advocacy groups requesting that 
EPA amend regulations issued under Title IV of TSCA (Sierra Club et al. 
2009) (Ref. 23). The petitioners requested that EPA lower the Agency's 
DLHS issued pursuant to section 403 of TSCA, and the dust-lead 
clearance levels issued pursuant to section 402 of TSCA, from 40 [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; and to lower the definition 
of LBP pursuant to section 401 of TSCA from 1 mg/cm\2\ and 0.5 percent 
by weight, to 0.06 percent by weight with a corresponding reduction in 
units of mg/cm\2\.
    On October 22, 2009, EPA responded to this petition pursuant to 
section 553(e) of the Administrative Procedure Act (5 U.S.C. 553(e)) 
(EPA 2009) (Ref. 24). EPA agreed to commence an appropriate proceeding 
on the DLHS and the definition of LBP in response to the petition, but 
stated that it did not commit to a particular schedule or to a 
particular outcome.
    In August 2016, administrative petitioners--joined by additional 
citizen groups--filed a petition for writ of mandamus in the Ninth 
Circuit Court of Appeals, seeking a court order finding that EPA had 
unreasonably delayed in promulgating a rule to update the DLHS and the 
definition of LBP under TSCA and directing EPA to promulgate a proposed 
rule within 90 days, and to finalize a rule within six months. On 
December 27, 2017, a panel majority of the Ninth Circuit granted the 
writ of mandamus and ordered that EPA (1) issue a proposed rule within 
ninety days of the date the decision becomes final and (2) issue a 
final rule one year thereafter (Ref. 2). On March 26, 2018, the Panel 
granted EPA's Motion for Clarification, specifying that the proposed 
rule was due ninety days from the date of that order (Ref. 3).
    EPA is issuing this proposed rule in compliance with the Court's 
order. Notably, the Court's majority decision suggested that EPA had 
already determined that amending these regulations was necessary 
pursuant to TSCA (15 U.S.C. 2687). However, EPA stated in its 2009 
petition response that ``the current hazard standards may not be 
sufficiently protective'' (Ref. 24) (emphasis added). With regard to 
the definition of LBP, EPA had not even opined that the definition may 
not be sufficiently protective. Rather, throughout the litigation, EPA 
maintained that it would consider whether revision of the definition 
was appropriate. Also, the sufficiency of the standards was not at 
issue, as this mandamus petition was about timing, not substance and 
EPA had not previously conducted the analyses required to reach a 
conclusion under the statutory standard. It was not until EPA conducted 
its own analyses--during this rulemaking process--that it was in a 
position to express the preliminary conclusions that are set forward in 
this proposal.

III. Proposed Action

    EPA is proposing to lower the DLHS for floors from 40 [mu]g/ft\2\ 
to 10 [mu]g/ft\2\. EPA is proposing to lower the DLHS for window sills 
from 250 [mu]g/ft\2\ to 100 [mu]g/ft\2\.
    EPA is proposing no changes to the current definition of LBP due to 
insufficient information to support such a change.

A. Dust-Lead Hazard Standards

    1. Approach for reviewing the dust-lead hazard standards. As EPA 
explained in the 2001 hazard standards rulemaking (66 FR 1206, 1207), 
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 LBP, to the presence of LBP hazards, for which more substantive 
action should be undertaken to control exposures, especially to young 
children. Since there are many sources of lead exposure (e.g., air, 
water, diet, background levels of lead), and since, under TSCA Title 
IV, EPA may only account for risks associated with paint, dust and 
soil, EPA continues to believe that non-zero hazard standards are 
appropriate.
    Based on the language of sections 401, 402, and 403 of TSCA and the 
purposes of Title X and its legislative history, EPA continues to 
believe that it is a reasonable exercise of its discretion to set 
hazard standards based on consideration of the potential for risk 
reduction and whether such actions are achievable, and with 
consideration given to the existing programs aimed at achieving such 
reductions. This proposal is informed by the achievability of these 
standards in relation to their application in lead risk reduction 
programs. These considerations will vary within different regulatory 
programs.
    In the 2001 LBP Hazards Rule, EPA first determined the lowest 
candidate DLHS by using a 1-5% probability of an individual child 
developing a BLL of 10 [mu]g/dL. EPA then took a pragmatic approach by 
looking at numerous factors affected by the candidate standards and 
prioritized protection from the greatest lead risks so as not to dilute 
intervention resources.
    To develop this current proposal, EPA evaluated the relationship 
between dust-lead levels and children's health, and considered the 
achievability of the DLHS given the relationship between standards 
established under TSCA section 403 and the application of those 
standards in lead risk reduction programs. Consistent with the 
establishment of the 2001 DLHS, EPA believes national standards are 
still an appropriate regulatory approach because they facilitate 
implementation and decrease uncertainty within the regulated community. 
For further information, see the LBP Hazards Rule (Ref. 4).
    EPA's hazard standards should not be considered in isolation, but 
must be contemplated along with the Agency's actions to address lead in 
other media. It is anticipated that this proposal, especially in 
conjunction with other federal actions on, would result in better 
health outcomes for children. As described elsewhere in this proposal, 
scientific advances made since the promulgation of the 2001 rule 
clearly

[[Page 30894]]

demonstrate that exposure to low levels of lead result in adverse 
health effects. Moreover, since CDC has stated that no safe level of 
lead in blood has been identified, the reductions in children's BLLs as 
a result of this rule would help reduce the risk of adverse cognitive 
and developmental effects in children.
    2. Technical Analyses and Standard Selection. The analyses that EPA 
developed to inform this regulation were specifically designed to model 
potential health risks that might accrue to the subpopulation, children 
living in pre-1940 and pre-1978 housing, impacted by this proposal and 
the specific regulatory decision under consideration (dust-lead hazard 
standards). As described in EPA's Technical Support Document (TSD) that 
accompanies this proposal, EPA notes that different program offices 
estimate exposures for different populations, different media, and 
under different statutory requirements and thus different models or 
parameters may be a better fit for their purpose. As such, the approach 
and modeling parameters chosen for this rulemaking should not 
necessarily be construed as appropriate for or consistent with the 
goals of other EPA programs (Ref. 5).
    When interpreting the results of Integrated Exposure Uptake 
Biokinetic (IEUBK) modeling, it is important to recognize that the 
IEUBK was developed, calibrated and validated for site-specific risk 
assessments. The model and input parameters have been the subject of 
multiple Science Advisory Board Reviews, workshops and publications in 
the peer reviewed literature (Ref. 5). EPA's Office of Chemical Safety 
and Pollution Prevention (OCSPP) determined that adjustments to the 
input parameters used for site-specific evaluations would be desirable 
to better reflect considerations specific to this national rulemaking. 
OCSPP's adjustments were made to support this rulemaking based on peer-
reviewed data sources such as EPA's Exposure Factors Handbook and 
analysis for EPA's Office of Water (Ref. 5). While the agency believes 
that these adjustments are appropriate to support this rulemaking, this 
rulemaking and its supporting analyses should not be interpreted to 
recommend adjustments that vary from EPA's Office of Land and Emergency 
Management's IEUBK guidance for site-specific analyses.
    Reducing childhood lead exposure is an EPA priority, and today's 
proposal is one component of EPA's broad effort to reduce children's 
exposure to lead. While no safe level of lead in blood has been 
identified (Ref. 7), the reductions in children's blood-lead levels 
resulting from this rule are expected to reduce the risk of adverse 
cognitive and developmental effects in children. TSCA Section 403 
required EPA to promulgate regulations that ``identify . . . lead-based 
paint hazards, lead-contaminated dust, and lead-contaminated soil'' for 
purposes of TSCA Title IV and the Residential Lead-Based Paint Hazard 
Reduction Act of 1992. LBP hazards, under TSCA section 401, are defined 
as conditions of LBP and lead-contaminated dust and soil that ``would 
result'' in adverse human health effects (15 U.S.C. 2681(10)). TSCA 
section 401 defines lead-contaminated dust as ``surface dust in 
residential dwellings'' that contains lead in excess of levels 
determined ``to pose a threat of adverse health effects'' (15 U.S.C. 
2681(11)).
    In the TSD, EPA models the risk of adverse health effects 
associated with lead dust exposures at differing potential candidate 
standards for dust levels (17 scenarios) in children living in pre-1940 
and pre-1978 housing, as well as associated potential health effects in 
this subpopulation. Candidate standards that prioritize reducing floor 
dust loadings over sill dust loadings have the biggest impact on 
exposure because of the greater likelihood and magnitude of children's 
exposure (floors take up more square footage of the housing unit and 
children spend more of their time in contact with the floor rather than 
the sills.) For example, a candidate standard of 40 [micro]g/ft\2\ for 
floors and 100 [micro]g/ft\2\ for window sills is likely to be less 
effective than a standard of 10 or 20 [micro]g/ft\2\ for floors and 250 
[micro]g/ft\2\ for window sills.
    EPA reported potential effects at the 50th and 97.5th percentile of 
the affected subpopulation, and made comparisons with multiple metrics, 
in relation to the CDC reference level of 5 [micro]g/dL and the 
previous CDC level of concern of 10 [micro]g/dL. Specifically, EPA 
evaluated which candidate dust-lead standards could approximate 97.5% 
of the modeled subpopulation of children being below the CDC reference 
level. EPA's modeling showed that this value was only reached at 
background dust-lead levels. However, modeling did show that at dust-
lead levels of 10 [micro]g/ft\2\ and 100 [micro]g/ft\2\ on floors and 
window sills, respectively, greater than 90% of the modeled children 
were below the CDC reference level, while at the current standards, 
about 80% of children were below this level. EPA feels more confident 
in potential health gains from candidate standards that compare 
favorably on multiple metrics. Outcome metrics and comparison values 
are summarized at tables 7-1 and 7-2 of the TSD.
    As expected, as the dust-lead levels were decreased, incremental 
decreases to BLL and adverse health effects were seen at all points 
below the current standard. Furthermore, the non-linear nature of the 
modeled relationships discussed in the TSD mean that greater changes 
were seen with greater incremental reductions and smaller changes were 
seen when changes were closer to the original dust-lead standard. These 
trends, in combination with the sources of uncertainty in the modeling 
(discussed in Chapter 8 of the TSD) and the fact that the uncertainty 
is propagated through the Economic Analysis (EA) that relies on the 
TSD, make it difficult to identify a clear cut-point or a clear 
alternative for consideration. EPA does note, however, that the results 
of the EA show that in each of the scenarios examined the quantified 
benefits outweighed the quantified costs. In selecting a primary 
proposal, EPA considers that the HUD study shows that for many of the 
LHC grantees that use existing lead hazard control practices, dust-lead 
levels as low as 10 [micro]g/ft\2\ and 100 [micro]g/ft\2\ on floors and 
window sills, respectively, were achievable.
    EPA is proposing standards of 10 [micro]g/ft\2\ and 100 [micro]g/
ft\2\ for floors and window sills respectively. Based on the 
experiences of the LHC grantees EPA has tentatively concluded that the 
petitioned candidate standard of 10 [micro]g/ft\2\ on floors and 100 
[micro]g/ft\2\ on window sills is achievable. EPA also notes that all 
candidate standards evaluated in EPA's economic analysis have positive 
net benefits and the petitioned candidate standard generally had the 
highest net benefits across the scenarios analyzed. In choosing the 
proposed standards, EPA gave significant weight to both the health 
outcomes identified in the TSD and technically achievability, since 
these standards will likely be applied in certain lead risk reduction 
programs, and considering achievability is consistent with the overall 
statutory goal of decreasing lead exposures to children. However, all 
standards more stringent than the current standard incrementally 
improve health outcomes above the existing standards, and the 
differences among candidate standards are small (see TSD Table 7-2). 
EPA notes that no non-zero lead level, including background, can be 
shown to eliminate health risk entirely, so it is appropriate for EPA 
to consider factors beyond health effects only in choosing the 
standard. Also, achievability itself is not a bright line concept; in 
general, as standards

[[Page 30895]]

decrease, more and more target housing units will find it challenging 
to achieve dust lead levels below the standard. Practicability is an 
important component of achievability.
    While EPA is proposing standards of 10 [micro]g/ft\2\ and 100 
[micro]g/ft\2\ for floors and window sills respectively, EPA is 
encouraging public comment on the full range of candidate standards 
analyzed in the TSD as alternatives to the proposal, including the 
option not to change the current standard. EPA is also specifically 
requesting comment on an option that would reduce the floor dust 
standard but leave the sill dust standard unchanged (e.g., 20 [micro]g/
ft\2\ for floors and 250 [micro]g/ft\2\ for window sills, or 10 
[micro]g/ft\2\ for floors and 250 [micro]g/ft\2\ for window sills), 
since reducing floor dust lead has the greatest impact on children's 
health. Comments are also sought on EPA's tentative conclusion that a 
standard of 10 [micro]g/ft\2\ and 100 [micro]g/ft\2\ on floors and 
window sills is achievable, and what changes, if any, including 
laboratory analytic standard would be necessary to achieve that 
standard. EPA particularly welcomes data on the achievability of any of 
the candidate standards analyzed for this proposal.
    As mentioned in Unit I.D., EPA worked with HUD OLHCHH to survey the 
office's LHC grantees to assess the achievability of candidate DLHS 
(Ref. 11). Survey results showed that reductions in clearance levels to 
10 [mu]g/ft\2\ of lead in floor dust and to 100 [mu]g/ft\2\ of lead in 
dust on window sills were shown to be technically achievable using 
existing cleaning practices. As explained in the survey final report, 
clearance testing results were collected from 1,552 housing units and 
included 7,211 floor samples and 4,893 window sill samples. The data 
were analyzed to determine the percentage of samples cleared at or 
below various levels. For floors, 72% of samples showed dust-lead 
levels at or below 5 [micro]g/ft\2\, 85% were at or below 10 [micro]g/
ft\2\, 90% were at or below 15 [micro]g/ft\2\, and 94% were at or below 
20 [micro]g/ft\2\. For window sills, 87% of samples showed dust-lead 
levels at or below 40 [micro]g/ft\2\, 91% were at or below 60 [micro]g/
ft\2\, 96% were at or below 80 [micro]g/ft\2\, and 97% were at or below 
100 [micro]g/ft\2\ (Ref. 11).
    The specific purpose of the LHC programs is to assist ``states, 
cities, counties/parishes, Native American Tribes, or other units of 
local government in undertaking comprehensive programs to identify and 
control lead-based paint hazards in eligible privately owned rental or 
owner-occupied housing populations.'' (Ref. 25). Funded activities must 
be conducted by LBP certified individuals (Ref. 25). Since most of the 
LHC grantees use commercial firms in their area, HUD OLHCHH believes 
that the grantees are conducting a large percentage of these activities 
and are therefore representative of the regulated community.
    Ninety-eight of those grantees completed the survey, giving 
information from housing units in which lead hazard control activities 
took place from 2010 through 2012, for a total dataset of 1,552 housing 
units (Ref. 11). Of those housing units, ``[a]lmost half were detached 
single family homes, while less than 20% were apartments. Almost all 
were built before 1960, and over three quarters before 1940.'' (Ref. 
11). ``The most common methods used included various types of cleaning 
as well as sealing of floors, [and] sills . . . Overlaying or replacing 
flooring . . . were less common. It was further found that the stated 
reductions in . . . standards for floors and sills are generally 
feasible using the more common methods (cleaning and sealing) 
exclusively.'' (Ref. 11).
    Section 402(a) of TSCA requires EPA to promulgate regulations that 
``shall contain standards for performing lead-based paint activities, 
taking into account reliability, effectiveness, and safety.'' To that 
end, as part of the Lead-based Paint Hazards Rule, EPA established 
clearance levels as ``40 [micro]g/ft\2\ for floors and 250 [micro]g/
ft\2\ for window sills,'' the same as the DLHS in that rulemaking. See 
40 CFR 745.227(e)(8)(viii). After conducting LBP abatements, EPA's 
regulations require a certified inspector or risk assessor to sample 
the abated area. If the sample results show dust-lead loadings equal to 
or exceeding the applicable clearance level, ``the components 
represented by the failed sample shall be recleaned and retested.'' See 
40 CFR 745.227(e)(8)(vii). In other words, the abatement is not 
complete until the dust-lead loadings in the work area are below the 
clearance levels.
    EPA is not proposing to change the post-abatement clearance levels 
in 40 CFR 745, subpart L today, but EPA recognizes that, in other lead 
regulatory programs, the DLHS are tightly linked to post-abatement 
clearance. As discussed elsewhere in this proposal, HUD uses the 
standards proposed here in their clearance regulations and lead hazard 
control grant requirements. EPA considered how this approach would 
impact partner agencies when evaluating candidate standards, and 
selected standards that accord with achievability studies and partner 
program implementation. While EPA is not proposing to change the 
clearance standards today, EPA does intend to review the clearance 
levels at a later date.
    In addition to ensuring that stakeholders can achieve the lower 
dust-lead loadings proposed in this rule, it is important to assess 
whether those dust-lead loadings are reliably detectable by 
laboratories. The National Lead Laboratory Accreditation Program 
(NLLAP) is an EPA program that defines the minimum requirements and 
abilities that a laboratory must meet to attain EPA recognition as an 
accredited lead testing laboratory. EPA established NLLAP to recognize 
laboratories that demonstrate the ability to accurately analyze paint 
chips, dust, or soil samples for lead. If, as a result of lowering the 
DLHS, laboratories recognized by the NLLAP program were unable to 
accurately measure dust samples at those lower levels, then 
stakeholders would be unable to use those laboratories in conducting 
activities required by EPA's LBP program. Notably, as mentioned 
elsewhere in this document, HUD has already required these lower dust-
lead levels of their OLHCHH's lead hazard control grantees in a recent 
policy guidance revision (Ref. 26). All the laboratories used by the 
approximately 120 lead hazard control grantees (the number varies over 
time as grants begin and end) have established the required minimum 
reporting limit and minimum detection limit for the dust-lead loadings 
on floors and for window sills proposed today. EPA acknowledges that 
the laboratories used by OLHCHH's lead hazard control grantees do not 
represent all of the laboratories accredited under EPA's NLLAP program. 
In order to continue to be accredited if the DLHS for floors is 
reduced, all NLLAP laboratories will need to reach a reporting limit 
not greater than half of the level established (i.e., 5 [mu]g/ft\2\ for 
a floor DLHS standard of 10 [mu]g/ft\2\). However, given that 100% of 
the laboratories used by these grantees were using laboratories with 
reporting limit not greater 5 [mu]g/ft\2\, there is no technological 
barrier to reducing the current standard to the petitioned candidate 
standard. The dust samples analyzed by the laboratories were collected 
by the grantees. A quantitative review of dust sampling results from 51 
grants where clearance was attempted in one of the housing units 
treated in the April 13, 2017, to May 14, 2018, period under each grant 
found that 80% (41) of the units passed floor clearance at HUD's 
clearance level of <10 [mu]g/ft\2\ for these grants on the first 
attempt. All units that failed floor clearance on the

[[Page 30896]]

first attempt passed on the second attempt. All (51) of the units 
passed the window sill clearance at the clearance level of < 100 [mu]g/
ft\2\ for these grants on the first attempt. The dust-lead sample 
analyses were conducted by a total of 28 laboratories located in 24 
states within a total of 12 laboratory firms. The grants were awarded 
to 49 state or local governments in 16 states (Ref. 27).
    In consideration of the factors discussed in this preamble, EPA is 
proposing to change the DLHS from 40 [micro]g/ft\2\ and 250 [micro]g/
ft\2\ to 10 [micro]g/ft\2\ and 100 [micro]g/ft\2\ on floors and window 
sills, respectively. EPA recognizes that this rulemaking does not 
address all hazards presented by lead. The DLHS 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.
    In 2001, EPA concluded that standards that are too stringent may 
afford less protection to these children by diluting the resources 
available to address hazards in these communities. While EPA recognizes 
that BLLs have declined since the promulgation of the 2001 rule and 
that mitigation costs per child are generally low (see Refs. 8, 12, and 
28), this concept is still applicable given BLL trends today. As 
described in the Key Federal Programs to Reduce Childhood Lead 
Exposures and Eliminate Associated Health Impacts document, national 
data suggest disparities persist among communities due to factors such 
as race, ethnicity, and income (Ref. 17). In 2013-2016, the 95th 
percentile BLL of children ages 1 to 5 years in families with incomes 
below poverty level was 3.0 [micro]g/dL (median is 0.9 [mu]g/dL,) and 
among those in families at or above the poverty level it was 2.1 
[micro]g/dL (median is 0.7 [mu]g/dL), a difference that is 
statistically significant. In 2011-2014, 2.2% of children in families 
below the poverty level had a BLL at or above 5 [mu]g/dL, compared to 
0.6% of children in families at or above the poverty level. The 97.5th 
percentile in 2013-2016 is 3.3 [mu]g/dL, a slight decrease from the 
value for 2011-2014 (Ref. 28).
    EPA is proposing these new standards to complement other federal 
actions aimed at reducing lead exposures for all children. EPA also 
believes that the standards would continue to inform where intervention 
resources should be directed for children with higher exposures. These 
are the lowest levels that EPA believes are reliably achievable using 
existing lead-hazard control practices and that are aligned with the 
clearance levels required under certain HUD grant programs. As such, 
these levels provide greater uniformity across the federal government 
than the other options considered and provide consistency for the 
regulated and public health communities. EPA is requesting comment on 
the achievability and appropriateness of the proposed DLHS. EPA also 
seeks comment on other levels that are described and evaluated in the 
TSD (Ref. 5) and the EA (Ref. 12), including taking comment on keeping 
the DLHS at the current levels.
    4. Effect of this change on EPA and HUD Programs. a. EPA Risk 
Assessments. As stated earlier in this preamble, EPA's risk assessment 
work practice standards provide the basis for risk assessors to 
determine whether LBP hazards are present in target housing and COFs. 
As part of a risk assessment, dust samples are taken from floors and 
window sills to determine if dust-lead levels exceed the hazard 
standards. Results of the sampling, among other things, are documented 
in a risk assessment report which is required under the LBP Activities 
Rule (Ref. 18). In addition to the sampling results, the report must 
describe the location and severity of any dust-lead hazards found and 
describe interim controls or abatement measures needed to address the 
hazards. Under this proposed rule, risk assessors would compare dust 
sampling results for floors and window sills to the new, lower DLHS. 
Sampling results above the new hazard standard would indicate that a 
dust-lead hazard is present on the surfaces tested. EPA expects that 
this would result in more hazards being identified in a portion of 
target housing and COFs that undergo risk assessments. The proposed 
rule does not change any other risk assessment requirements.
    b. EPA-HUD Disclosure Rule. Under the Disclosure Rule (Ref. 6), 
prospective sellers and lessors of target housing must provide 
purchasers and renters with a federally approved lead hazard 
information pamphlet and disclose known LBP and/or LBP hazards. The 
information disclosure activities are required before a purchaser or 
renter is obligated under a contract to purchase or lease target 
housing. Records or reports pertaining to LBP or LBP hazards must be 
disclosed, including results from dust sampling regardless of whether 
the level of dust lead is below the hazard standard. For this reason, a 
lower hazard standard would not result in more information being 
disclosed because property owners would already be disclosing results 
that show dust-lead below 40 [micro]g/ft\2\ on floors or below 250 
[micro]g/ft\2\ on window sills. However, a lower hazard standard may 
prompt a different response on the lead disclosure form, i.e., that a 
lead-based paint hazard is present rather than not, which would occur 
when a dust-lead level is below the current standard but at or above a 
lower final standard.
    c. Renovation, Repair and Painting (RRP) Rule. To avoid confusion 
about the applicability of this proposed rule, EPA notes that revising 
the DLHS will not trigger new requirements under the existing RRP Rule. 
The existing RRP work practices are required where LBP is present (or 
assumed to be present), and are not predicated on dust-lead loadings 
exceeding the hazard standards. The existing RRP regulations do not 
require dust sampling prior to or at the conclusion of a renovation 
and, therefore, will not be directly affected by a change to the DLHS.
    d. HUD Requirements for Federally-assisted or Federally-owned 
housing. Under sections 1012 and 1013 of Title X, HUD established LBP 
hazard notification, evaluation, and reduction requirements for certain 
pre-1978 HUD-assisted and federally-owned target housing, known as the 
Lead Safe Housing Rule (LSHR). See 24 CFR 35, subparts B-R. The 
programs covered by these requirements range from supportive housing 
services to foreclosed HUD-insured single-family insured housing to 
public housing. For programs where hazard evaluation is required, the 
DLHS provide criteria to risk assessors for identifying LBP hazards in 
residences covered by these programs. For programs that require 
abatement of LBP hazards, the DLHS are used to identify residences that 
contain dust-lead hazards as part of determining where abatement will 
be necessary.
    e. HUD Guidelines. The HUD Guidelines for the Evaluation and 
Control of Lead-Based Paint Hazards in Housing were developed in 1995 
under section 1017 of Title X. They provide detailed, comprehensive, 
technical information on how to identify LBP hazards in residential 
housing and COFs, and how to control such hazards safely and 
efficiently. The Guidelines were revised in 2012 to incorporate new 
information, technological advances, and new Federal regulations, 
including EPA's LBP hazard standards. If EPA were to finalize changes 
in the DLHS, HUD would plan to revise Chapter 5 of the Guidelines on 
risk assessment and Chapter 15 on clearance based on those changes.
    f. LSHR Clearance Requirements. While this proposed rule would not 
change the clearance levels under EPA's regulations, it would have the 
effect of

[[Page 30897]]

changing the clearance levels that apply to hazard reduction activities 
under HUD's LSHR. The LSHR requires certain hazard reduction activities 
to be performed in certain federally-owned and assisted target housing 
including abatements, interim controls, paint stabilization, and 
ongoing LBP maintenance. Hazard reduction activities are required in 
this housing when LBP hazards are identified or when maintenance or 
rehabilitation activities disturb paint known or presumed to be LBP. 
The LSHR's clearance regulations, 24 CFR 35.1340, specify requirements 
for clearance of these projects (when they disturb more than de minimis 
amounts of known or presumed lead-based painted surfaces, as defined in 
24 CFR 35.1350(d)), including a visual assessment, dust sampling, 
submission of samples for analysis for lead in dust, interpretation of 
sampling results, and preparation of a report. Clearance testing of 
abatements and non-abatements is required by 24 CFR 35.1340(a) and (b), 
respectively.
    The LSHR's clearance regulations cross-reference different 
regulatory provisions to establish clearance levels for abatements than 
for non-abatement activities. The LSHR clearance regulations for both 
abatements and non-abatement activities, at 24 CFR 35.1340(d), cross-
reference the standards, at 24 CFR 35.1320(b), to be used by risk 
assessors for conducting clearance; in turn, the standards at 24 CFR 
35.1320(b) cross-reference EPA's DLHS at 40 CFR 745.227(h). In 
addition, the LSHR clearance regulations for abatements, at 24 CFR 
35.1340(a), which set forth that clearance must be performed in 
accordance with EPA regulations, cross-reference EPA's clearance 
standards for abatements at 40 CFR 745.227(e). Currently, the EPA's 
DLHS and dust-lead clearance standards for abatements are the same, so 
cross-referencing different EPA regulatory provisions, at 40 CFR 
745.227(e) and (h), has had no effect on hazard reduction activities 
under the LSHR.
    The LSHR clearance regulations for non-abatement activities, at 24 
CFR 35.1340(b) do not cross-reference EPA's clearance standards at 40 
CFR 745.227(e). Only EPA's DLHS at 40 CFR 745.227(h) are referenced at 
24 CFR 1340(d) as the clearance standards for non-abatement activities, 
because EPA does not have its own clearance standards for them. 
Accordingly, if this rule is finalized as proposed, non-abatement 
activities under the LSHR would continue to be cleared using the EPA's 
DLHS.
    EPA's LBP activities regulations on work practice requirements, at 
40 CFR 745.65(d), specify that clearance requirements applicable to LBP 
hazard evaluation and hazard reduction activities are found in both the 
LSHR, at 24 CFR 35, subpart R, and EPA regulations at 40 CFR 745, 
subpart L. For abatements covered by both agencies' regulations, the 
LSHR regulations, at 24 CFR 35.145 and 35.1340(a), require clearance 
levels following abatement of LBP or LBP hazards to be at least as 
protective as EPA's clearance levels for abatements at 40 CFR 
745.227(e).
    If this rule is finalized as proposed, EPA's resultant DLHS would 
be lower than EPA's clearance standards for abatements, and according 
to HUD, abatements under HUD's LSHR would be cleared using the EPA's 
DLHS.

B. The Definition of Lead-Based Paint

    As noted in Unit II.D., EPA has neither opined nor concluded that 
the definition of LBP may not be sufficiently protective. In response 
to the administrative petition (Ref. 24) and throughout the litigation, 
EPA maintained that it would consider whether revision to the 
definition of LBP was appropriate. The definition of LBP is 
incorporated throughout EPA's LBP regulations, and application of this 
definition is central to how EPA's LBP program functions. EPA believes 
that accounting for feasibility and health effects would be appropriate 
when considering a revision. Given the current, significant data gaps 
presented below and the new approaches that would need to be devised to 
address them, EPA lacks sufficient information to conclude that the 
current definition requires revision or to support any specific 
proposed change to the definition of LBP. EPA is requesting comment on 
this proposal, and especially on any new available data on the 
technical feasibility of a revised definition of LBP or analysis of the 
relationship between levels of lead in paint, dust and risk of adverse 
health effects.
    1. Scope and applicability of the definition of lead-based paint. 
The definition of LBP reviewed in this proposal supports the LBP 
activities regulations, Disclosure regulations, and the RRP 
regulations, and currently applies to target housing and COFs. The 
definition of LBP helps LBP inspectors identify where LBP may be 
located, and helps risk assessors identify where LBP hazards are 
located and where LBP activities may be appropriate. It is the 
definition lessors and sellers must consider when disclosing LBP 
information about their properties, and it is the definition renovators 
must consider when evaluating applicability of the RRP program.
    2. Limitations of the Definition of Lead-Based Paint. The 
definition of LBP is intended to identify LBP for the purposes of Title 
X and TSCA Title IV. This definition should not be used to identify 
paint that poses a risk of lead exposure, as risks are dependent on a 
number of factors. If one chooses to apply the definition of LBP 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.
    3. Analyses needed to evaluate whether a revision to the definition 
of LBP is appropriate. Evaluating whether revising the definition of 
LBP is appropriate requires analyzing levels of lead in paint that are 
lower than what was examined previously by EPA and other federal 
agencies. More information is needed to establish a statistically valid 
causal relationship between concentrations of lead in paint (lower than 
the current definition) and dust-lead loadings which cause lead 
exposure. Additionally, it is important to understand how capabilities 
among various LBP testing technology would be affected under a possible 
revision to the definition.
    a. Relationship among lead in paint, environmental conditions, and 
exposure. EPA would need to further explore the availability and 
application of statistical modeling approaches that establish robust 
linkages between the concentration of lead in paint below the current 
definition and floor dust and BLL before EPA could develop a 
technically supportable proposal to revise the definition of LBP. To 
that end, EPA is coordinating with HUD to evaluate available data and 
approaches. Efforts suggest that most available empirical data and 
modeling approaches are only applicable at or above the current LBP 
definition (0.5% and 1 mg/cm\2\). It should be noted that EPA developed 
a model to estimate lead-based dust loadings from renovation activities 
in various renovation scenarios in 2014 and a similar model was 
developed in 2011 by Cox et al. However, the underlying data that 
supported EPA's 2014 model for LBP was EPA's 2007 dust study, which 
included concentrations of lead in paint ranging from 0.8% to 13% by 
weight. The data that supported Cox et al. 2011 ranged from 0.7 to 13.2 
mg/cm\2\ (converted to approximately 0.6% to 31% by weight) of lead in 
paint (Ref. 29) (Ref. 30) (Ref. 31). Given the range of concentrations 
that support these models are well above the petitioners' requested 
concentration of lead in paint,

[[Page 30898]]

there would be significant uncertainty associated with using these 
models to make predictions regarding lead in paint at concentrations an 
order of magnitude below the current definition.
    EPA has conducted a preliminary literature search for studies that 
co-report lead concentrations in paint and dust in order to identify 
available data to support modeling approaches (Ref. 29). Among other 
things, EPA is looking to the literature to establish statistically 
valid associations between LBP and lead in dust. If such an 
association, appropriate for applications contemplating lead in paint 
at low concentrations, is found, EPA could use such information to 
estimate concentrations of lead in paint and household dust. 
Alternatively, EPA would likely need to consider generation of new data 
if data or modeling approaches are not identified, since, as discussed 
elsewhere in this document, EPA believes there is significant 
uncertainty associated with estimating dust-lead loadings for levels of 
lead in paint up to an order of magnitude lower than levels in the 
current definition using the existing models (Ref. 29), Cox et al. 
(Ref. 30). EPA expects to need to develop an approach to estimate dust-
lead from lower levels of lead in paint so that EPA could estimate 
incremental blood lead changes and associated health effects changes as 
described in the existing dust-lead approach. This may involve 
conducting laboratory or field studies to characterize the relationship 
between LBP and dust-lead at lower levels of lead in paint (<0.5%) 
(Ref. 29).
    b. Feasibility. EPA lacks sufficient information to support a 
change to the definition of LBP with respect to feasibility. 
Significant data gaps prevent the Agency from evaluating and 
subsequently determining that a change to the existing definition is 
warranted. For instance, it is currently unknown whether portable field 
technologies utilized in EPA's LBP activities and RRP programs, as well 
as HUD's LSHR, perform reliably at significantly lower concentrations 
of lead in paint.
    Portable X-ray fluorescence (XRF) LBP analyzers are the primary 
analytical method for inspections and risk assessments in housing 
because they can be used to quickly, non-destructively and 
inexpensively determine if LBP is present on many surfaces. These 
measurements do not require destructive sampling or paint removal. 
Renovation firms may also hire inspectors or risk assessors to conduct 
XRF testing to identify the presence of LBP. When using XRF technology, 
the instrument exposes the substrate being tested to electromagnetic 
radiation in the form of X-rays or gamma radiation. In response to 
radiation, the lead present in the substrate emits energy at a fixed 
and characteristic level. The emission is called ``X-Ray 
Fluorescence,'' or XRF (Ref. 32).
    XRF Performance Characteristic Sheets (PCS) have been developed by 
HUD and/or EPA for most commercially available XRF analyzers (XRFs). In 
order to comport with the HUD Guidelines for the Evaluation and Control 
of Lead-Based Paint Hazards in Housing, an XRF instrument that is used 
for testing paint in target housing or pre-1978 COFs must have a HUD-
issued XRF PCS. XRFs must be used in accordance with the manufacturer's 
instructions and the PCS. The PCS contains information about XRF 
readings taken on specific substrates, calibration check tolerances, 
interpretation of XRF readings, and other aspects of the model's 
performance. For every XRF analyzer evaluated by EPA and/or HUD, the 
PCS defines acceptable operating specifications and procedures. The 
ranges where XRF results are positive, negative or inconclusive for 
LBP, the calibration check tolerances, and other important information 
needed to ensure accurate results are also included in the PCS. An 
inspector and risk assessor must follow the XRF PCS for all LBP 
activities, and only devices with a posted PCS may be used for LBP 
inspections and risk assessments (Ref. 32).
    XRF analyzers and their corresponding PCS sheets were developed to 
be calibrated with the current definition of LBP. Therefore, these 
instruments would need to be re-evaluated to determine the capabilities 
of each instrument model available on the market to meet a potentially 
revised definition of LBP, and the corresponding PCS sheet would need 
to be amended accordingly. If, as a result of a revision to the 
definition of LBP, the use of XRFs suddenly became unavailable, the 
effectiveness of the LBP activities regulations would be severely 
harmed. Since these instruments are the primary analytical method for 
inspections and risk assessments performed pursuant to the LBP 
activities regulations, EPA would need to understand how a potential 
revision to the definition of LBP would affect the ability of the 
regulated community to use this technology.
    When conducting renovations, contractors must determine whether or 
not their project will involve LBP, and thus fall under the scope of 
the RRP regulations under 40 CFR 745, subpart E, or in certain 
jurisdictions, authorized State and Indian Tribal programs under 
subpart Q (see Unit III.C). Under the RRP rule, renovators have the 
flexibility to choose among four strategies: Use (1) a lead test kit, 
(2) an XRF instrument, (3) paint chip sampling to indicate whether LBP 
is present; or (4) assume that LBP is present and follow all the work-
practice requirements. For those using lead test kits, only test kits 
recognized by the EPA can be used for this purpose. EPA-recognized lead 
test kits used for the RRP program were evaluated through EPA's 
Environmental Technology Verification (ETV) Program or by the National 
Institute of Standards and Technology. ETV was a public-private 
partnership between EPA and nonprofit testing and evaluation 
organizations that verified the performance of innovative technologies. 
ETV evaluated the reliability of the technology used for on-site 
testing of LBP at the regulated level, under controlled conditions in a 
laboratory. ETV ended operations in early 2014. EPA would need to 
evaluate lead test kits using ETV-equivalent testing for a potential 
revision of the definition of LBP. This would allow EPA to evaluate the 
reliability of test kits for testing LBP under controlled conditions at 
levels lower than the current LBP definition, so contractors can 
continue to use this important tool in compliance with the RRP 
regulations.
    The regulated community uses XRF analyzers for inspections and risk 
assessments, and lead test kits to determine the presence of LBP during 
renovations. In consideration of any potential revised definition of 
LBP, EPA would need to fully understand the repercussions of such a 
revision on these portable field technologies in order to ensure the 
technological feasibility of any new revision. The methods EPA would 
need to employ to do so would involve complex processes that include 
evaluating the potential ability of XRF analyzers to detect LBP at 
lower levels than the current definition, the ability to recalibrate 
PCS sheets for each available model of XRF analyzer, and re-evaluating 
lead test kits under controlled conditions in a laboratory. EPA 
currently lacks sufficient information to support such an undertaking.

C. State Authorization

    Pursuant to TSCA section 404, a provision was made for interested 
States, territories and Tribes to apply for and receive authorization 
to administer their own LBP Activities programs, as long as their 
programs are at least as protective of human health and the environment 
as the Agency's program

[[Page 30899]]

and provides adequate enforcement. The regulations applicable to State, 
territorial and Tribal programs are codified at 40 CFR 745, subpart Q. 
As part of the authorization process, States, territories and Tribes 
must demonstrate to EPA that they meet the requirements of the LBP 
Activities Rule. Over time, the Agency may make changes to these 
requirements. To address the changes proposed in this rule and future 
changes to the LBP Activities Rule, the Agency is proposing to require 
States, territories and Tribes to demonstrate that they meet any new 
requirements imposed by this rulemaking. The Agency is proposing to 
provide States, territories and Tribes up to two years to demonstrate 
that their programs include any new requirements that EPA may 
promulgate. A State, territory or Tribe would have to indicate that it 
meets the requirements of the LBP Activities program in its application 
for authorization or, if already authorized, a report it submits under 
40 CFR 745.324(h) no later than two years after the effective date of 
the new requirements. If an application for authorization has been 
submitted but not yet approved, the State, territory or Tribe must 
demonstrate that it meets the new requirements by either amending its 
application, or in a report it submits under 40 CFR 745.324(h) no later 
than two years after the effective date of the new requirements. The 
Agency believes that the proposed requirements allow sufficient time 
for States, territories and Tribes to demonstrate that their programs 
contain requirements at least as protective as any new requirements 
that EPA may promulgate.

IV. Request for Comment

    EPA is requesting comment on its proposal to lower the DLHS for 
floor dust to 10 [micro]g/ft\2\ and for window sill dust to 100 
[micro]g/ft\2\. EPA is requesting comment on the achievability and 
appropriateness of the proposed DLHS in these ranges. EPA is requesting 
comments on all aspects of this proposal, including all options 
presented in the EA and the TSD that accompanies this proposal. EPA is 
requesting comment on whether it has properly characterized the 
neurodevelopmental effects of lead in children. EPA specifically 
requests additional studies that support the quantification and 
monetization of these neurodevelopmental effects in the Agency's 
analyses. EPA also seeks comment on four other alternatives discussed 
in the EA, including maintaining the DLHS at the current levels.
    EPA is proposing no changes to the definition of LBP due to 
insufficient information to support such a change. EPA is requesting 
comment on this proposal to make no change to the definition of LBP.
    EPA is requesting comment on its proposal to provide States, 
territories and Tribes up to two years to demonstrate that their 
programs include any new requirements that EPA may promulgate.
    EPA is also requesting comment on methods, models and data used in 
the EA and the TSD that accompany this proposal. (1) The agency 
provided a preliminary assessment of how this hazard standard may 
potentially affect other units in target housing and child occupied 
facilities in the Appendix B of the Economic Analysis. The agency is 
seeking information--e.g., data, scholarly articles--that will allow 
the agency to refine this assessment and determine whether the effect 
on the target housing and child occupied facilities should be included 
in the primary benefit and cost estimates presented in the analysis. 
(2) The agency is seeking information that will allow the agency to 
refine their current approach on assessing uncertainties associated 
with the benefit and cost estimates. (See page ES-8 of the Executive 
Summary of the EA for more specific requests).
    In addition to the areas on which EPA has specifically requested 
comment, EPA requests comment on all other aspects of this proposed 
rule.

V. References

    The following is a list of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not physically located in the docket. For 
assistance in locating these other documents, please consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.

1. Public Law 102-550, Title X--Housing and Community Development 
Act, enacted October 28, 1992 (also known as the Residential Lead-
Based Paint Hazard Reduction Act of 1992 or ``Title X'') (42 U.S.C. 
4851 et seq.).
2. U.S. Court of Appeals for the Ninth Circuit. A Community Voice v. 
EPA, No. 16-72816, Opinion. December 27, 2017.
3. U.S. Court of Appeals for the Ninth Circuit. A Community Voice v. 
EPA, No. 16-72816, Order. March 26, 2018.
4. EPA. Lead; Identification of Dangerous Levels of Lead; Final 
Rule. Federal Register (66 FR 1206, January 5, 2001) (FRL-6763-5).
5. EPA Office of Pollution Prevention and Toxics. Technical Support 
Document for Residential Dust-lead Hazard Standards Rulemaking 
Approach taken to Estimate Blood Lead Levels and Effects from 
Exposures to Dust-lead. June 2018.
6. HUD, EPA. Lead; Requirements for Disclosure of Known Lead-Based 
Paint and/or Lead-Based Paint Hazards in Housing; Final Rule. 
Federal Register (61 FR 9064, March 6, 1996) (FRL-5347-9).
7. CDC. CDC Response to Advisory Committee on Childhood Lead 
Poisoning Prevention Recommendations in ``Low Level Lead Exposure 
Harms Children: A Renewed Call of Primary Prevention.'' June 7, 
2012. https://www.cdc.gov/nceh/lead/acclpp/cdc_response_lead_exposure_recs.pdf.
8. CDC. Blood Lead Levels in Children Aged 1-5 Years--United States, 
1999-2010. Morbidity and Mortality Weekly Report, Vol. 62 No. 13, 
April 5, 2013. https://www.cdc.gov/mmwr/pdf/wk/mm6213.pdf.
9. EPA. Integrated Science Assessment (ISA) for Lead (Final Report, 
Jul 2013). U.S. Environmental Protection Agency, Washington, DC, 
EPA/600/R-10/075F, 2013. https://cfpub.epa.gov/ncea/isa/recordisplay.cfm?deid=255721.
10. HHS, National Toxicology Program. NTP Monograph: Health Effects 
of Low-Level Lead. 2012. https://ntp.niehs.nih.gov/ntp/ohat/lead/final/monographhealtheffectslowlevellead_newissn_508.pdf.
11. HUD Office of Lead Hazard Control and Healthy Homes. Lead Hazard 
Control Clearance Survey. October 2015. https://www.hud.gov/sites/documents/CLEARANCESURVEY_24OCT15.PDF.
12. EPA Office of Pollution Prevention and Toxics. Economic Analysis 
of the Proposed Rule to Revise the TSCA Dust-lead Hazard Standards. 
June 2018.
13. CDC. Lead Poisoning in Children (February 2011). https://www.cdc.gov/healthcommunication/toolstemplates/entertainmented/tips/LeadPoisoningChildren.html.
14. Agency for Toxic Substances and Disease Registry, Division of 
Toxicology and Human Health Sciences. Lead--ToxFAQsTM CAS 
#7439-92-1, August 24, 2016. https://www.atsdr.cdc.gov/toxfaqs/tfacts13.pdf.
15. EPA. Exposure Factors Handbook Chapter 5 Soil and Dust Ingestion 
(2017 update). https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.
16. Zartarian, V., Xue, J., Tornero-Velez, R., & Brown, J. (2017). 
Children's Lead Exposure: A Multimedia Modeling Analysis to Guide 
Public Health Decision-Making. Environmental Health Perspectives, 
125(9), 097009-097009. https://doi.org/10.1289/EHP1605.
17. President's Task Force on Environmental Health Risks and Safety 
Risks to Children. Key Federal Programs to Reduce Childhood Lead 
Exposures and Eliminate Associated Health Impacts. November 2016. 
https://

[[Page 30900]]

ptfceh.niehs.nih.gov/features/assets/files/
key_federal_programs_to_reduce_childhood_lead_exposures_and_eliminate
_associated_health_impactspresidents_508.pdf.
18. EPA. Lead; Requirements for Lead-Based Paint Activities in 
Target Housing and Child-Occupied Facilities; Final Rule. Federal 
Register (61 FR 45778, August 29, 1996) (FRL-5389-9).
19. EPA. Lead; Renovation, Repair, and Painting Program; Final Rule. 
Federal Register (73 FR 21692, April 22, 2008) (FRL-8355-7).
20. EPA. Lead; Amendment to the Opt-Out and Recordkeeping Provisions 
in the Renovation, Repair, and Painting Program; Final Rule. Federal 
Register (75 FR 24802, May 6, 2010) (FRL-8823-7).
21. EPA. Lead; Clearance and Clearance Testing Requirements for the 
Renovation, Repair, and Painting Program; Final Rule. Federal 
Register (76 FR 47918, August 5, 2011) (FRL-8881-8).
22. HUD. Requirements for Notification, Evaluation and Reduction of 
Lead-Based Paint Hazards in Federally Owned Residential Property and 
Housing Receiving Federal Assistance; Response to Elevated Blood 
Lead Levels; Final Rule. Federal Register (82 FR 4151, January 13, 
2017) (FR-5816-F-02).
23. Sierra Club et al. Letter to Lisa Jackson RE: Citizen Petition 
to EPA Regarding the Paint and Dust Lead Standards. August 10, 2009.
24. EPA. Letter in response to citizen petition under section 553(e) 
of the Administrative Procedure Act (5 U.S.C. 553(e)). October 22, 
2009.
25. HUD Office of Lead Hazard Control and Healthy Homes. Lead-Based 
Paint Hazard Reduction. FR-6200-N-12. Section I.A.1. June 19, 2018. 
https://www.hud.gov/program_offices/spm/gmomgmt/grantsinfo/fundingopps/fy18lbphr.
26. HUD Office of Lead Hazard Control and Healthy Homes. OLHCHH 
Policy Guidance 2017-01 Rev 1. Revised Dust-Lead Action Levels for 
Risk Assessment and Clearance. February 16, 2017. https://www.hud.gov/sites/documents/LeadDustLevels_rev1.pdf.
27. HUD Office of Lead Hazard Control and Healthy Homes. First-Round 
Clearance Results from Sample of Grants Active as of April 13, 2017. 
May 24, 2018.
28. CDC, National Center for Health Statistics. National Health and 
Nutrition Examination Survey: Questionnaires, Datasets, and Related 
Documentation. https://wwwn.cdc.gov/nchs/nhanes/Default.aspx. 
Accessed May 30, 2018.
29. EPA Office of Pollution Prevention and Toxics. Definition of 
Lead-Based Paint Considerations. June 2018.
30. Cox et al. (2011). Improving the Confidence Level in Lead 
Clearance Examination Results through Modifications to Dust Sampling 
Protocols. Journal of ASTM International, Vol. 8, No. 8. https://doi.org/10.1520/JAI103469.
31. EPA Office of Pollution Prevention and Toxics. Revised Final 
Report on Characterization of Dust Lead Levels After Renovation, 
Repair, and Painting Activities. November 13, 2007. https://www.epa.gov/lead/revised-final-report-characterization-dust-lead-levels-after-renovation-repair-and-painting.
32. HUD Office of Lead Hazard Control and Healthy Homes. Guidelines 
for the Evaluation and Control of Lead-Based Paint Hazards in 
Housing. Second Edition, July 2012.

VI. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is an economically significant regulatory action that 
was submitted to the Office of Management and Budget (OMB) for review 
under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 
(76 FR 3821, January 21, 2011). Any changes made in response to OMB 
recommendations have been documented in the docket. The Agency prepared 
an analysis of the potential costs and benefits associated with this 
action, which is available in the docket (Ref. 12).

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is expected to be an Executive Order 13771 regulatory 
action (82 FR 9339, February 3, 2017). Details on the estimated costs 
of this proposed rule can be found in EPA's analysis of the potential 
costs and benefits associated with this action.

C. Paperwork Reduction Act (PRA)

    This action does not directly impose an information collection 
burden under the PRA, 44 U.S.C. 3501 et seq. Under 24 CFR 35, subpart A 
and 40 CFR 745, subpart F, sellers and lessors must already provide 
purchasers or lessees any available records or reports ``pertaining 
to'' LBP, LBP hazards and/or any lead hazard evaluative reports 
available to the seller or lessor. Accordingly, a seller or lessor must 
disclose any reports showing dust-lead levels, regardless of the value. 
Thus, this action would not result in additional disclosures. Because 
there are no new information collection requirements to consider under 
the proposed rule, or any changes to the existing requirements that 
might impact existing ICR burden estimates, additional OMB review and 
approval under the PRA is not necessary.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA, 5 
U.S.C. 601 et seq. In making this determination, the impact of concern 
is any significant adverse economic impact on small entities. The small 
entities subject to the requirements of this action are small 
businesses that are lessors of residential buildings and dwellings (who 
may incur costs for lead hazard reduction measures in compliance with 
the HUD Lead Safe Housing Rule or environmental investigations 
triggered by a child with an EBLL); residential remodelers (who may 
incur costs associated with additional cleaning and sealing in houses 
undergoing rehabilitation subject to the HUD Lead-Safe Housing Rule) 
and abatement firms (who may also incur costs associated with 
additional cleaning and sealing). The Agency has determined that this 
rule would impact 39,000 to 44,000 small businesses; 38,000 to 42,000 
have cost impacts less than 1% of revenues, 1,000 to 2,000 have impacts 
between 1% and 3%, and approximately 100 have impacts greater than 3% 
of revenues. Details of the analysis of the potential costs and 
benefits associated with this action are presented in the EA, which is 
available in the docket (Ref. 12).

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The total estimated 
annual cost of the proposed rule is $66 million to $119 million per 
year (Ref. 12), which does not exceed the inflation-adjusted unfunded 
mandate threshold of $154 million.

F. Executive Order 13132: Federalism

    This action does not have federalism implications, as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. States 
that have authorized LBP Activities programs must demonstrate that they 
have DLHS at least as protective as the standards at 40 CFR 745.227. 
However,

[[Page 30901]]

authorized States are under no obligation to continue to administer the 
LBP Activities program, and if they do not wish to adopt new DLHS they 
can relinquish their authorization. In the absence of a State 
authorization, EPA will administer these requirements. Thus, Executive 
Order 13132 does not apply to this action.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have Tribal implications as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). Tribes that have 
authorized LBP Activities programs must demonstrate that they have DLHS 
at least as protective as the standards at 40 CFR 745.227. However, 
authorized Tribes are under no obligation to continue to administer the 
LBP Activities program, and if they do not wish to adopt new DLHS they 
can relinquish their authorization. In the absence of a Tribal 
authorization, EPA will administer these requirements. Thus, Executive 
Order 13175 does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is subject to Executive Order 13045 (62 FR 19885, April 
23, 1997), because it is economically significant as defined in 
Executive Order 12866, and because the environmental health or safety 
risk addressed by this action may have a disproportionate effect on 
children. (Ref. 5)
    The primary purpose of this rule is to reduce exposure to dust-lead 
hazards in target housing where children reside and in target housing 
or COFs. EPA's analysis indicates that there will be approximately 
78,000 to 252,000 children affected by the rule (Ref. 12).

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, distribution 
or use of energy.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

List of Subjects in 40 CFR Part 745

    Environmental protection, Target housing, Child-occupied facility, 
Housing renovation, Lead, Lead poisoning, Lead-based paint, Renovation, 
Hazardous substances.

    Dated: June 22, 2018.
E. Scott Pruitt,
Administrator.
    Therefore, 40 CFR chapter I, subchapter R, is proposed to be 
amended as follows:

PART 745--[AMENDED]

0
1. The authority citation for part 745 continues to read as follows:

    Authority:  15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
0
2. In Sec.  745.65 paragraph (b) is revised to read as follows:


Sec.  745.65   Lead-based paint hazards.

* * * * *
    (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 10 [micro]g/ft\2\ 
on floors or 100 [micro]g/ft\2\ on interior window sills based on wipe 
samples.
* * * * *
0
3. In Sec.  745.227 paragraph (h)(3)(i) is revised to read as follows:


Sec.  745.227   Work practice standards for conducting lead-based paint 
activities: Target housing and child-occupied facilities

* * * * *
    (h) * * *
    (3) * * *
    (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 10 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ for 
interior window sills, respectively;
* * * * *
0
4. Section 745.325 is amended by revising paragraph (e) to read as 
follows:


Sec.  745.325   Lead-based paint activities: State and Tribal program 
requirements.

* * * * *
    (e) Revisions to lead-based paint activities program requirements. 
When EPA publishes in the Federal Register revisions to the lead-based 
paint activities program requirements contained in subpart L of this 
part:
    (1) A State or Tribe with a lead-based paint activities program 
approved before the effective date of the revisions to the lead-based 
paint activities program requirements in subpart L of this part must 
demonstrate that it meets the requirements of this section in a report 
that it submits pursuant to Sec.  745.324(h) but no later than 2 years 
after the effective date of the revisions.
    (2) A State or Tribe with an application for approval of a lead-
based paint activities program submitted but not approved before the 
effective date of the revisions to the lead-based paint activities 
program requirements in subpart L of this part must demonstrate that it 
meets the requirements of this section either by amending its 
application or in a report that it submits pursuant to Sec.  745.324(h) 
of this part but no later than 2 years after the effective date of the 
revisions.
    (3) A State or Tribe submitting its application for approval of a 
lead-based paint activities program on or after the effective date of 
the revisions must demonstrate in its application that it meets the 
requirements of the new lead-based paint activities program 
requirements in subpart L of this part.

[FR Doc. 2018-14094 Filed 6-29-18; 8:45 am]
 BILLING CODE 6560-50-P


