[Federal Register Volume 84, Number 131 (Tuesday, July 9, 2019)]
[Rules and Regulations]
[Pages 32632-32648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14024]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2018-0166; FRL-9995-49]
RIN 2070-AJ82


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final 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, this final rule 
revises 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 is also finalizing its proposal to make no change to 
the definition of LBP because insufficient information exists to 
support such a change at this time.

DATES: This final rule is effective January 6, 2020.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPPT-2018-0166, is available at 
http://www.regulations.gov or at the Office of Pollution Prevention and 
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket 
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 
Constitution Ave. NW, Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information 
about the docket 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: yowell.john@epa.gov.
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: TSCA-Hotline@epa.gov.

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 part 35. You may also be affected by this action 
if you operate a laboratory that is recognized by EPA's National Lead 
Laboratory Accreditation Program (NLLAP) in accordance with 40 CFR 
745.90, 745.223, 745.227, 745.327. You may also be affected by this 
action, in accordance with 40 CFR 745.107 and 24 CFR 35.88, as the 
seller or lessor of target housing, which is most pre-1978 housing. See 
40 CFR 745.103 and 24 CFR 35.86. 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.

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     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.
     Testing laboratories (NAICS code 541380) that analyze dust 
wipe samples for lead.
     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 finalizing 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 (1) in the case of 
paint or other surface coatings on target housing, such lower level as 
may be established by HUD, as defined in 42 U.S.C. 4822(c), or (2) in 
the case of any other paint or surface coatings, such other level as 
may be established by EPA.
    The amendments to the regulations on LBP activities are promulgated 
pursuant to TSCA section 402 (15 U.S.C 2682). The amendments to the 
regulations on the authorization of state and tribal Programs are 
finalized pursuant to TSCA section 404 (15 U.S.C. 2684).
    This final 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,'' and to ``promulgate the final rule within one year after the 
promulgation of the proposed rule'' (Refs. 2 and 3).

C. What action is the Agency taking?

    EPA established 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,'' also known as the 2001 LBP Hazards Rule 
(Ref. 4). On July 2, 2018, EPA proposed to amend the DLHS and to make 
no change to the definition of LBP (Ref. 5). EPA is finalizing its 
proposal to lower the DLHS set by the LBP Hazards Rule from 40 [mu]g/
ft\2\ to 10 [mu]g/ft\2\ for floors, and from 250 [mu]g/ft\2\ to 100 
[micro]g/ft\2\ for window sills.
    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,'' also known as the 
Disclosure Rule (Ref. 6). EPA is finalizing its proposal to make no 
change to the current definition of LBP because, as further explained 
in Unit III.B, insufficient information exists to support such a change 
at this time.

D. Why is the Agency taking this action?

    Reducing childhood lead exposure is an EPA priority, and EPA 
continues to collaborate with our federal partners to reduce lead 
exposures and to explore ways to strengthen our relationships and 
partnerships with states, tribes, and localities. In December 2018, the 
President's Task Force on Environmental Health Risks and Safety Risks 
to Children released the Federal Action Plan to Reduce Childhood Lead 
Exposures and Associated Health Impacts (Lead Action Plan) (Ref. 7) 
which will enhance the federal government's efforts to identify and 
reduce lead exposure while ensuring children impacted by such exposure 
are getting the support and care they need. The Lead Action Plan will 
help federal agencies work strategically and collaboratively to reduce 
exposure to lead and improve children's health. This final rule is a 
component of EPA's prioritizing the important issue of childhood lead 
exposure because dust is a significant exposure route for young 
children because of their mouthing behavior and proximity to the floor.
    In the 2001 LBP Hazards Rule under TSCA section 403, EPA modeled 
the health implications 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 
[micro]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 LBP Hazards 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. 8), is no longer using the term ``level of concern,'' 
and is instead using the blood lead reference value (BLRV) to identify 
children who have been exposed to lead and who should undergo case 
management (especially assessment of sources of lead in their 
environment and follow up BLL testing) (Ref. 8). The BLRV 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. 9).
    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. 10), 
which EPA released in June 2013, and the National Toxicology Program 
(NTP) Monograph on Health Effects of Low-Level Lead, which was released 
by the Department of Health and Human Services in June 2012 (Ref. 11). 
The Lead ISA is a synthesis and evaluation

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of scientific information on the health and environmental effects of 
lead, including health effects of BLLs lower than 10 [mu]g/dL. These 
effects include cognitive function decrements in children (Ref. 10).
    The NTP, in 2012, completed an evaluation of existing scientific 
literature to summarize the scientific evidence regarding potential 
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 potential 
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 
risk of adverse health effects in children and adults at BLLs less than 
10 [mu]g/dL, and less than 5 [mu]g/dL as well. 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. 
11).
    Furthermore, the Children's Health Protection Advisory Committee 
(CHPAC), a Federal Advisory Committee for EPA, has recommended ``that 
EPA, in coordination with HUD, make strengthening the Lead-Based Paint 
Hazards Standards for paint, dust, and soil one of its highest 
priorities in the efforts to reduce children's blood lead levels.'' 
(Refs. 12 and 13).
    Based on EPA's evaluation of the best available science, the 
Agency's careful review of public comments received on the proposal, as 
well as consideration of the potential for risk reduction, including 
whether such actions are achievable, EPA is finalizing its proposal to 
revise the DLHS to 10 [micro]g/ft\2\ for floors and 100 [micro]g/ft\2\ 
for window sills. This final action is informed by the achievability of 
these standards in relation to their application in lead risk reduction 
programs, whether lower dust-lead loadings can be reliably detected by 
laboratories, resources for addressing LBP hazards, and consistency 
across the federal government.
    EPA did not propose to change post-abatement clearance levels in 40 
CFR part 745, subpart L. In this regard, EPA believes it has reasonably 
focused this rulemaking on the DLHS and the definition of LBP, which 
are the two actions EPA agreed to undertake in response to the 2009 
citizen petition. They were also the two actions expressly addressed in 
the Ninth Circuit Court of Appeals Opinion discussed above. 
Nonetheless, while this final rule does not address clearance levels, 
EPA appreciates the points raised by commenters about the relationship 
between the DLHS and clearance levels and EPA has initiated action on 
this issue under a separate rulemaking, entitled ``Review of Post-
Abatement Clearance Levels for Dust-lead'' (RIN 2070-AK50), as noted in 
the Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions. 
The Spring 2019 Unified Agenda also presents EPA's anticipated 
publication timelines for the rulemaking that will address the 
clearance levels.
    To update the dust-lead clearance levels, EPA must take a number of 
steps including health, exposure, and economic analyses. An analysis 
estimating the health implications of possible revisions of applicable 
dust-lead clearance levels will be conducted, taking into account 
factors such as the locations where clearance samples are collected for 
each of the various candidate clearance levels under consideration. An 
economic analysis of candidate dust-lead clearance levels will be 
conducted for purposes of evaluating the potential costs and benefits 
of possible revisions to the clearance levels. EPA's economic analysis 
will involve establishing a baseline lead hazard profile for facilities 
affected by the rule based on knowledge of any applicable existing 
rules and standards and levels of compliance with those rules and 
standards. Candidate clearance levels will then need to be analyzed 
with reference to this baseline. For this purpose, economic modeling 
will be performed to link each candidate clearance level to the 
associated scenario of health endpoints and their associated aggregated 
``benefit'' valuations for the whole affected population. On the cost 
side, using assumptions about the scope of interventions, scenarios 
will be developed to measure aggregate costs of compliance for each 
candidate clearance level. In addition, the economic analysis is 
required in order to comply with the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Unfunded Mandates Reform Act (UMRA) (2 
U.S.C. 1531-1538), and the Congressional Review Act (CRA) (5 U.S.C. 801 
et seq.).

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

    EPA has prepared an Economic Analysis (EA), which is available in 
the docket, of the potential incremental impacts associated with this 
rulemaking (Ref. 14). The analysis focused specifically on the subset 
of target housing and child-occupied facilities affected by this rule. 
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.
     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 $268 million to $2.3 billion per year 
using a 3% discount rate, and $58 million to $509 million using a 7% 
discount rate. These benefits calculations are highly sensitive to the 
discount rate used and to the range in the estimated number of lead 
hazard reduction events triggered by the blood lead levels in children 
who have had their blood lead levels tested. With respect to the 
latter, the wide range is driven by uncertainty about specifics of 
state and local regulations and about the blood lead levels at which 
action might be taken. 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. 11).
     Costs. This rule is estimated to result in costs of $32 
million to $117 million per year using either a 3% or 7% discount rate. 
The cost calculations are highly sensitive to the range in the 
estimated number of lead hazard reduction events triggered by children 
with elevated blood lead levels.
     Small entity impacts. This rule would impact approximately 
15,400 small businesses of which 96% have cost impacts less than 1% of 
revenues, 4% have impacts between 1% and 3%, and less than 1% have 
impacts greater than 3% of revenues.
     Environmental Justice and Protection of Children. This 
rule would increase the level of environmental protection for all 
affected populations without having any disproportionately

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high and adverse human health or environmental effects on any 
population, including any minority or low-income population or 
children.
     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. Children's Environmental Health

    Lead exposure has the potential to impact individuals of all ages, 
but it is especially harmful to young children (Refs. 15, 16 and 17). 
Exposure to lead is associated with increased risk of a number of 
adverse health effects in children, including decreased cognitive 
performance, greater incidence of problem behaviors, and increased 
diagnoses of attention-related behavioral problems (Ref. 11). 
Furthermore, floor dust in homes and child-care facilities is a 
significant route of exposure for children given their mouthing 
behavior and proximity to the floor. Therefore, the environmental 
health or safety risk addressed by this action may have a 
disproportionate effect on children (Ref. 18).
    Consistent with the Agency's Policy on Evaluating Health Risks to 
Children, EPA has evaluated the health effects in children of decreased 
lead exposure. EPA prepared a Technical Support Document (TSD) for this 
rulemaking which models the risk of adverse health effects associated 
with dust-lead exposures at 19 potential candidate standards for dust-
lead levels (Ref. 18). It is important to note that the model and input 
parameters have been the subject of multiple Science Advisory Board 
Reviews, workshops and publications in the peer reviewed literature. 
The TSD shows that health risks to young children decrease with 
decreasing dust-lead levels but that no non-zero lead level, including 
background levels, can be shown to eliminate health risk entirely.
    Therefore, EPA considered additional factors beyond health effects 
when selecting a new standard, including achievability of the standards 
in lead risk reduction programs, whether lower dust-lead loadings can 
be reliably detected by laboratories, resources for addressing LBP 
hazards, and consistency across the federal government. Additional 
information on EPA's evaluation can be found in Unit III.A.2 of this 
preamble. On the basis of all these factors (including health effects), 
EPA is finalizing its proposal to lower the DLHS set by the LBP Hazards 
Rule to 10 [mu]g/ft\2\ for floors and 100 [micro]g/ft\2\ for window 
sills.

II. Background

A. Health Effects

    Lead exposure has the potential to impact individuals of all ages, 
but it is especially harmful to young children (Refs. 15, 16 and 17). 
Ingestion of lead-contaminated soil and dust is a major contributor to 
BLLs in children, particularly those who reside in homes built prior to 
1978 (Refs. 19 and 20). Infants and young children can be more highly 
exposed to lead through floor dust at home and in child-care facilities 
because they often put their hands and other objects that can have lead 
from dust or soil on them into their mouths (Ref. 17). As mentioned 
elsewhere in this final rule, 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 [micro]g/dL are 
associated with increased diagnoses of attention-related behavioral 
problems, greater incidence of problem behaviors, and decreased 
cognitive performance (Ref. 11). For further information about health 
effects and lead exposure, see the Lead ISA (Ref. 10).

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 part 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 (1) 
in the case of paint or other surface coatings on target housing, such 
lower level as may be established by HUD, as defined in 42 U.S.C. 
4822(c), or (2) in the case of any other paint or surface coatings, 
such other level as may be established by EPA.
    This definition was codified as part of the Disclosure Rule (Ref. 
6) at 40 CFR part 745, subpart F, and as part of the LBP Activities 
Rule (Ref. 21) at 40 CFR part 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 published 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 part 745, subpart L) (Ref. 21). 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 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 part 745, subpart E) (Ref. 22). The rule was amended 
in 2010 (75 FR 24802) (Ref. 23) to eliminate a provision for 
contractors to opt-out of prescribed work practices and in 2011 (76 FR 
47918) (Ref. 24) 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''

[[Page 32636]]

that contains lead in excess of levels determined ``to pose a threat of 
adverse health effects'' (15 U.S.C. 2681(11)). The standards 
established in today's final rule 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 part 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 (including COFs that 
are part of an assisted target housing property covered by the LSHR, 
because they are part of the common area of the property). The LSHR 
aims in part to ensure that federally-owned or federally-assisted 
target housing is free of LBP hazards (Ref. 25). 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 [micro]g/dL to 5 [micro]g/dL, aligning its 
standard with CDC's BLRV. 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 the blood lead level at which 
CDC's BLRV recommends that an environmental intervention be conducted. 
(Ref. 25).

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 final 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 final rule. The DLHS 
provide the basis for risk assessors to determine whether dust-lead 
hazards are present. A risk assessment may be required where dust-lead 
testing occurs to comply with the LSHR or where dust-lead testing 
occurs in response to discovery of a child with a blood lead level 
exceeding a federal or state threshold.
    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 recognized by EPA's National Lead Laboratory 
Accreditation Program (NLLAP), as discussed in section III.A.2 for 
analysis for lead. When the lab results are received, the risk assessor 
compares them to the DLHS. If the dust-lead loadings from the samples 
are at or above the applicable DLHS, then a dust-lead hazard is 
present. Any LBP 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 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 part 35, subpart 
A; 40 CFR part 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 
evaluation reports available to the seller or lessor (40 CFR 
745.107(a)(4) and 24 CFR 35.88(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 LBP 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 DLHS 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 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 
final 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 LBP hazards, these standards are incorporated into certain 
requirements mandated by state, federal, tribal, and local governments. 
An important concern for EPA is that if the

[[Page 32637]]

DLHS were set too low, the resources for LBP hazard mitigation would be 
distributed more broadly, diverting them from situations that present 
more serious risks. However, EPA does not believe that the levels in 
this final rule constrict these programs, considering the demonstrated 
achievability of these levels (Ref. 26). As such, these standards are 
appropriate for incorporation into the various assessment and LBP 
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 (Ref. 27). 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. 28). 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). On June 
22, 2018, the EPA Administrator signed and EPA announced its proposed 
rule to lower the DLHS to 10 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ 
for window sills and to make no change to the definition of lead-based 
paint due to a lack of sufficient information to support such a change. 
(Ref. 29). The proposed rule was published in the July 2, 2018 edition 
of the Federal Register.
    EPA is issuing this final 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. 28) (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 conclusions that are set forward in this final 
rule.

F. Public Comments Summary

    The proposed rule provided a 45-day public comment period, ending 
on August 16, 2018. EPA received 67 comments during the public comment 
period. After the close of the public comment period, EPA received an 
additional 13,376 comments nearly all of which were submitted as part 
of a mass mail campaign. Comments were received from private citizens, 
state governments, potentially affected businesses, academics, trade 
associations, and environmental and public health advocacy groups. Many 
commenters, including states, LBP businesses, lead poisoning prevention 
advocacy groups, individuals, and academics, supported revising the 
DLHS as proposed. A number of commenters suggested that EPA should 
promulgate DLHS lower than the proposed levels at 10 [mu]g/ft\2\ for 
floors, and 100 [mu]g/ft\2\ for window sills. Several commenters 
specifically suggested that EPA should revise the DLHS for floors to 5 
[mu]g/ft\2\, and/or 40 [mu]g/ft\2\ for window sills. One commenter 
suggested that EPA should revise the DLHS only if the clearance levels 
are revised as well. Other commenters suggested that EPA either not 
revise the DLHS or revise them to levels higher than those in today's 
final rule. Another commenter expressed concern with a DLHS of 10 
[mu]g/ft\2\ for floors, contending that this would increase the cost of 
the HUD Lead Hazard Control (LHC) grant program due to an increase in 
clearance failures. Several commenters sought clarity in terms of how a 
potential revision to the DLHS would affect LBP-related activities that 
had already taken place or were in the process of conducting lead 
hazard control activities. In this preamble, EPA has responded to the 
major comments relevant to this final rule. In addition, the more 
comprehensive version of EPA's response to comments related to this 
final action can be found in the Response to Comments document (Ref. 
30).

III. Final Rule

    EPA carefully considered all public comments related to the 
proposal. EPA is finalizing its proposal to lower the DLHS for floors 
from 40 [mu]g/ft\2\ to 10 [mu]g/ft\2\ and its proposal to lower the 
DLHS for window sills from 250 [mu]g/ft\2\ to 100 [mu]g/ft\2\.
    This rule finalizes EPA's proposal to make no change to the 
definition of LBP because insufficient information exists to support 
such a change at this time.

A. Dust-Lead Hazard Standards

    1. Approach for reviewing the dust-lead hazard standards. As EPA 
explained in the 2001 LBP Hazards Rule (Ref. 4) (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 LBP hazard standards are 
appropriate.
    In the 2001 LBP Hazards Rule, EPA explained the issues and inherent 
discretion involved when the Administrator identifies LBP hazards 
(i.e., those conditions that cause exposure to lead ``that would result 
in adverse human health effects as established by the Administrator 
under this subchapter'' (TSCA section 401(10))). Of particular note, 
EPA explained that the challenge to the Agency is how to deal with the 
statutory criterion, ``would result in adverse human health effects.'' 
This is especially problematic because the statutory mandated activity 
that requires EPA to choose a cutoff for when this

[[Page 32638]]

risk exists does not lend itself to a straightforward empirical 
analysis that provides bright lines for decision makers. Even if the 
science and environmental-lead prevalence data were perfect, there 
would likely be no agreement on the level, or certainty, of risk that 
is envisioned in the phrase ``would result in adverse human health 
effects.'' Thus, it would not be appropriate to base a lead-based paint 
hazard standard on any specific probability of exceeding any specific 
blood-lead level. (Ref. 4).
    As further explained in that 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 the DLHS proposal in 2018 (Ref. 5), 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. Additional factors 
that the Agency considered include whether lower dust-lead loadings can 
be reliably detected by laboratories, resources for addressing LBP 
hazards, and consistency across the federal government.
    The TSD presents models to determine the risk of adverse health 
effects associated with dust-lead exposures at 19 levels (Ref. 18). 
Section 6.4 of the TSD summarizes the results of the metrics of 
interest, including the probability that an individual exposed to each 
potential candidate standard would have a BLL above 5 [mu]g/dL.
    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. Furthermore, national standards are appropriate 
because legacy lead paint remains in homes in most, if not all, parts 
of the country. For further information, see the LBP Hazards Rule (Ref. 
4).
    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, including whether such actions are achievable, and with 
consideration given to the existing programs aimed at achieving such 
reductions. This final rule revising the DLHS to 10 [mu]g/ft\2\ for 
floors and 100 [mu]g/ft\2\ for window sills is informed by the 
achievability of these standards in relation to their application in 
lead risk reduction programs, whether lower dust-lead loadings can be 
reliably detected by laboratories, resources for addressing LBP 
hazards, and consistency across the federal government. In this final 
rule, the Administrator is exercising his Congressionally delegated 
function to identify LBP hazards, which the statute defines as those 
conditions that cause exposure to lead ``that would result in adverse 
human health effects as established by the Administrator,'' in light of 
the data and associated uncertainties and the statutory purpose of 
targeting intervention resources towards protection against the 
greatest lead risks.
    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 final rule, especially in 
conjunction with other federal actions, will result in better health 
outcomes for children. As described in the DLHS proposal in 2018 (Ref. 
5), scientific advances made since the promulgation of the 2001 rule 
clearly 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 will help reduce the risk of 
adverse cognitive and developmental effects in children.
    2. Selection of final DLHS. Reducing childhood lead exposure is an 
EPA priority, and today's final rule 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. 8), 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 selecting the DLHS, EPA gave significant weight to health 
outcomes identified in the TSD. As the TSD shows, health risks to young 
children decrease with decreasing dust-lead levels; incremental 
decreases to BLL and adverse health effects are seen at all points 
below the original DLHS established in 2001. Although health risks to 
young children decrease with decreasing dust-lead levels, no non-zero 
lead level, including background levels, can be shown to eliminate 
health risk entirely. Therefore, it is appropriate for EPA to consider 
factors beyond health effects when selecting new standards. Additional 
factors that the Agency considered include achievability of the 
standards in lead risk reduction programs, whether lower dust-lead 
loadings can be reliably detected by laboratories, resources for 
addressing LBP hazards, and consistency across the federal government.
    EPA is concerned that if DLHS were set too low, the limited 
resources for hazard mitigation would be distributed more broadly, 
diverting them from vulnerable communities or situations that present 
more serious risks to those that present lower risks. As described in 
the Key Federal Programs to Reduce Childhood Lead Exposures and 
Eliminate Associated Health Impacts document, as well as the Lead 
Action Plan, national data suggest disparities persist among and within 
communities due to factors such as race, ethnicity, and income (Ref. 
20). In 2013-2016, the 95th percentile BLL of children ages 1 to 5 
years in families with incomes below poverty level was 3.0 [mu]g/dL 
(median is 0.9 [mu]g/dL,) and among those in families at or above the 
poverty level it was 2.1 [mu]g/dL (median is 0.7 [mu]g/dL), a 
difference that is statistically significant. In 2011-2016, 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, a difference that is statistically significant. The 
97.5th percentile in 2013-2016 is 3.3 [mu]g/dL, a slight decrease from 
the value for 2011-2014 (Ref. 31).
    As noted earlier in the preamble, 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, including 
whether such actions are achievable, and with consideration given to 
the existing programs aimed at achieving such

[[Page 32639]]

reductions. Additional factors that the Agency considered include 
whether lower dust-lead loadings can be reliably detected by 
laboratories, resources for addressing LBP hazards, and consistency 
across the federal government. As discussed in Units I.D. and II.A.2. 
of the proposal, EPA worked with HUD's Office of Lead Hazard Control 
and Healthy Homes (OLHCHH) to survey the office's LHC grantees to 
assess the achievability of candidate DLHS (Ref. 26). Survey results 
showed that reductions in dust-lead levels to 10 [mu]g/ft\2\ on floors 
and to 100 [mu]g/ft\2\ on window sills were shown to be technically 
achievable using existing cleaning practices, even though, at the time, 
the reductions had to be just down to 40 and 250 [mu]g/ft\2\, 
respectively. As explained in the survey's final report, testing 
results were collected from 1,552 housing units treated by 98 grantees, 
and included 7,211 floor and 4,893 window sill dust samples. The data 
were analyzed to determine the percentage of samples with dust-lead 
loadings at or below various levels. For floors, 72% of samples showed 
dust-lead levels at or below 5 [mu]g/ft\2\, 85% were at or below 10 
[mu]g/ft\2\, 90% were at or below 15 [mu]g/ft\2\, and 94% were at or 
below 20 [mu]g/ft\2\. For window sills, 87% of samples showed dust-lead 
levels at or below 40 [mu]g/ft\2\, 91% were at or below 60 [mu]g/ft\2\, 
96% were at or below 80 [mu]g/ft\2\, and 97% were at or below 100 
[mu]g/ft\2\ (Ref. 26). This final rule revising the DLHS to 10 [mu]g/
ft\2\ for floors and 100 [mu]g/ft\2\ for window sills is informed by 
the achievability of these standards in relation to their application 
in lead risk reduction programs. These standards will complement other 
federal actions aimed at reducing lead exposures for all children. EPA 
also believes that the standards will 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 other options suggested by commenters and 
provide consistency for the regulated and public health communities.
    EPA received a number of comments during the public comment period 
suggesting that EPA promulgate DLHS lower than the proposed levels at 
10 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ for window sills. Several 
commenters specifically suggested DLHS for floors at 5 [mu]g/ft\2\, 
and/or 40 [mu]g/ft\2\ for window sills. In the TSD, EPA models the risk 
of adverse health effects associated with dust-lead exposures at 
differing potential candidate standards (19 options) in children living 
in pre-1940 and pre-1978 housing, as well as associated potential 
health effects in this subpopulation. As explained in the EPA's 
proposal and section 3.2.3 of the TSD, floors have a larger impact on 
children's exposure to dust lead than sills because they 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. Consequently, 
candidate standards that reduce floor dust-lead loadings more than sill 
dust-lead loadings have the biggest impact on exposure because of the 
greater likelihood and magnitude of children's exposure to floor dust-
lead. For example, a candidate standard of 40 [mu]g/ft\2\ for floors 
and 100 [mu]g/ft\2\ for window sills is likely to be less effective 
than a standard of 10 or 20 [mu]g/ft\2\ for floors and 250 [mu]g/ft\2\ 
for window sills.
    In addition, at least one study suggests that dust-lead may 
reaccumulate after LHC activities, especially when cleaning and interim 
controls are used, and therefore DLHS levels lower than 100 [mu]g/ft\2\ 
for window sills (e.g., 40 [mu]g/ft\2\) may not be maintained over 
time, and would therefore render a lower DLHS to be a less effective 
indication of what property owners and residents can do to achieve a 
reduction in lead exposure (Ref. 32).The study shows that after 
cleaning the geometric mean dust-lead level was 45 [mu]g/ft\2\ and the 
median dust-lead level was 57 [mu]g/ft\2\, both of which are slightly 
above commenters' suggested window sill dust-lead level of 40 [mu]g/
ft\2\. But from six months through six years post-intervention, the 
window sill dust-lead levels were well above this level. At six months 
the geometric mean dust level was 105 [mu]g/ft\2\ and the median was 
104 [mu]g/ft\2\, which is much closer to a DLHS for window sills at 100 
[mu]g/ft\2\, rather than 40 [mu]g/ft\2\. These results call into 
question whether window sill levels at or below 40 [mu]g/ft\2\ can be 
maintained over time with routine cleaning practices, particularly 
interim controls. These inconsistencies, along with the other concerns 
discussed in this preamble, are why EPA has declined to select a lower 
DLHS for window sills as suggested by the commenters.
    Dust sampling is a critical element of the lead-based paint program 
because it is how members of the public learn whether dust-lead hazards 
are present in their homes and properties. Dust sampling is conducted 
by wiping a representative surface of known area with a wet wipe and 
sending the wipe to a laboratory for analysis. The laboratory that 
conducts the analysis must be recognized by EPA's NLLAP. See TSCA 
section 405(b), 15 U.S.C. 2685(b); 40 CFR 745.90(c)(1); 40 CFR 745.223; 
40 CFR 745.227(f); 40 CFR 745.327(c). EPA's NLLAP defines the minimum 
requirements and abilities that a laboratory must meet to attain EPA 
recognition as an accredited lead testing laboratory in the Laboratory 
Quality System Requirements (LQSR) (Ref. 33).
    Several commenters expressed concern about laboratories' ability to 
meet lower limits resulting from a revision to the DLHS, and one 
commenter went further to recommend that EPA thoroughly examine 
laboratories' ability to accurately measure at lower levels. Several 
commenters specifically requested DLHS for floors at 5 [mu]g/ft\2\ and/
or 40 [mu]g/ft\2\ for window sills. EPA agrees that a thorough 
understanding of laboratories' ability to meet lower LQSR limits as a 
result of revised DLHS is important, especially in consideration of 
commenters' suggestions for lower DLHS than were proposed and finalized 
in this rule. As indicated in the proposed rule (Ref. 5), EPA continues 
to believe in the importance of being able to assess whether the dust-
lead loadings reflected in the revised DLHS can be reliably measured by 
laboratories. If NLLAP-recognized laboratories were unable to 
demonstrate meeting the LQSR requirements, then stakeholders would be 
unable to use those laboratories in conducting activities required by 
EPA's LBP program. Those laboratories would either take actions to meet 
the lower LQSR limits or discontinue analysis of lead dust wipe samples 
from their portfolio of services. If too many laboratories were to 
discontinue lead dust wipe analysis from their portfolios, it could be 
problematic for the regulated community that conducts the sampling (as 
well as residents, property owners, and other stakeholders), in the 
form of increased cost of analysis per sample, increased waiting 
periods that make testing for dust-lead hazards untenable, or a 
combination of both. As the number of NLLAP-recognized labs decrease, 
the potential for risk reduction is diminished.
    In order to obtain a better understanding of laboratories' 
capabilities and capacity for dust wipe analysis, EPA conducted 
teleconferences with two accrediting organizations (Refs. 34; 35; and 
36), five federally funded laboratories (Refs. 37; 38; 39; 40; and 41), 
and nine state or

[[Page 32640]]

privately funded laboratories (Refs. 42; 43; 44; 45; 46; 47; 48; 49; 
and 50). The clientele of the two accrediting organizations represent 
99% of the laboratories recognized by NLLAP for dust-lead testing. 
Fourteen teleconferences with NLLAP-recognized laboratories represent 
approximately 13% of the NLLAP-recognized laboratories, and one of the 
privately funded laboratory contacts with whom EPA spoke is a parent 
company of sixteen (or approximately 15%) NLLAP-recognized laboratories 
(Ref. 45). EPA believes the accrediting organizations and laboratories 
with which teleconferences were held are representative of NLLAP-
recognized laboratories. These teleconferences further informed the 
discussion below, which examines laboratory requirements and 
laboratories' ability to meet those requirements, various approaches by 
which laboratories can meet the lower LQSR limits, and how the 
viability of those approaches changes according to the DLHS in this 
final rule and why revised DLHS below those levels would impair the 
potential for risk reduction.
    EPA established NLLAP to recognize laboratories that demonstrate 
the ability to accurately analyze paint chips, dust, or soil samples 
for lead. NLLAP-recognized laboratories must follow EPA's LQSR which 
identifies the limits laboratories must achieve (Ref. 33). All NLLAP-
recognized laboratories are required to demonstrate they can achieve a 
quantitation limit and a method detection limit (Ref. 33), and 
accrediting organizations must use the LQSR when evaluating 
laboratories performing environmental testing activities under NLLAP. A 
quantitation limit, also known as a reporting limit (Ref. 5) or minimum 
reporting limit (Ref. 51), is the minimum level or quantity of lead 
``that can be quantified to a specified accuracy.'' (Ref. 33) A method 
detection limit is ``[t]he minimum concentration of [lead] that . . . 
has a 99% probability of being identified, qualitatively or 
quantitatively measured, and reported to be greater than zero.'' (Ref. 
33) NLLAP-recognized laboratories that analyze dust wipe samples for 
lead must show they can achieve a quantitation limit ``equal to or less 
than . . . 50% of the lowest action level [i.e., regulatory limit] for 
dust wipe samples.'' (Ref. 33) The quantitation limit must also be ``at 
least 2 times but no greater than 10 times the method detection 
limit.'' (Ref. 33) When this final rule becomes effective, the ``lowest 
action level for dust wipe samples'' will be the DLHS for floors at 10 
[micro]g/ft\2\. Therefore, as a result of this rulemaking, laboratories 
that wish to maintain or obtain NLLAP recognition must be able to 
demonstrate a quantitation limit equal to or less than 5 [micro]g/
ft\2\, and a method detection limit no less than 0.5 [micro]g/ft\2\ and 
no greater than 2.5 [micro]g/ft\2\.
    In the proposed rule, EPA requested comment on the achievability of 
lower standards, including the ability of laboratories to accurately 
test to lower levels, in part to gain information on how the rule would 
affect the status of NLLAP-recognized laboratories. One commenter 
claimed that EPA found that the proposed DLHS are ``detectable among 
the labs used by'' the HUD grantees that are already subject to the 
lower levels. Another commenter asserted that ``100% of the labs that 
conduct lead tests are already equipped to test lead dust with lower 
standards than [are] currently being used.'' EPA agrees that the final 
DLHS are achievable by HUD LHC grantees but disagrees with the 
commenter's assertion that ``100% of the labs that conduct lead tests 
are already equipped to test'' for dust-lead at lower dust-lead levels 
than the previous DLHS. As mentioned in the proposed rule, HUD's policy 
guidance revision has already required its OLHCHH's LHC grantees to use 
clearance levels of 10 [micro]g/ft\2\ for floors and 100 [micro]g/ft\2\ 
for window sills when conducting LHC activities (Ref. 51). Therefore, 
100% of the laboratories used by these grantees were using laboratories 
with a reporting limit equal to or less than 5 [mu]g/ft\2\. Although 
this means that ``there is no technological barrier to reducing the 
current standard to the'' revised DLHS, and the laboratories used by 
the grantees are able to do so (Ref. 5), it does not mean that all of 
the NLLAP-recognized laboratories are already able to meet the lower 
LQSR limits associated with the revised DLHS. Based on EPA's additional 
research, the agency believes a little less than half of NLLAP-
recognized laboratories are already able to meet the lower LQSR limits 
associated with the revised DLHS. In addition, the other laboratories 
that wish to maintain or obtain NLLAP recognition will need to take 
actions to meet the lower LQSR limits as a result of this rulemaking 
(Ref. 14). EPA also notes that if the DLHS were revised to levels lower 
than this final rule, the Agency is not confident based on available 
data that the laboratories used by the HUD grantees could meet the 
lower LQSR limits.
    There are a number of approaches by which laboratories can meet the 
lower LQSR limits. These approaches, in order of increasing burden for 
doing so (including financial, time, and personnel resources), are: 
Instruct their customers to increase the wipe area; modify sample 
preparation and revise accreditation; or acquire new instrumentation, 
modify sample preparation, and revise accreditation. Through EPA's 
research on laboratories' capability and capacity, EPA believes that 
most if not all of the laboratories that will need to take actions to 
meet the lower LQSR limits will be able to do so by instructing 
customers to increase the wipe area, modifying the sample preparation 
and revising accreditation, or executing some combination of those 
approaches with a revised DLHS at 10 [micro]g/ft\2\ for floors and 100 
[micro]g/ft\2\ for window sills (Ref. 14).
    However, if EPA were to revise the DLHS to levels lower than the 
levels in this final rule, the viability of those less burdensome 
approaches diminishes sharply. With DLHS levels suggested by commenters 
at 5 [micro]g/ft\2\ for floors, EPA estimates that a little over 40% of 
the NLLAP-recognized laboratories would either have to acquire new 
instrumentation, modify sample preparation, and revise accreditation, 
or discontinue dust wipe analysis for lead from their portfolio (Ref. 
14). As further explained in the following paragraphs, EPA is concerned 
that laboratories that are faced with the decision of whether to meet 
lower LQSR limits may end up discontinuing dust wipe analysis for lead 
from their business models. This diminished capacity for laboratories 
that perform dust wipe analysis could in turn be problematic for the 
regulated community that conducts the sampling, either in the form of 
increased cost of analysis per sample, increased waiting periods that 
make testing for dust-lead hazards untenable, or a combination of both. 
As the number of NLLAP-recognized labs decrease, this could 
inadvertently put more children at risk of prolonged lead exposure.
    Increasing the wipe area is a less burdensome, acceptable way that 
many laboratories can meet the lower LQSR limits associated with 
revisions to the DLHS in this final rule of 10 [micro]g/ft\2\ for 
floors and 100 [micro]g/ft\2\ for window sills. Dust wipes are 
typically used to sample a floor area of 1 ft\2\ (Ref. 52). Increasing 
the wipe area will increase the amount of lead collected, making it 
more likely that the dust wipe sample will be measurable above the new 
quantitation limit without incurring additional expense. Some 
laboratories have indicated that they are able to test such samples by 
instructing their customers to wipe an area of 2 ft\2\ (Ref. 14). In 
addition, several commenters relayed

[[Page 32641]]

that samples have been taken using a 2 ft\2\ wipe area, and some 
laboratories have indicated that this is how they are meeting the HUD 
grant policy requirements. The commenters declare that a laboratory 
using less sensitive instrumentation will have difficulty meeting the 
lower requirements associated with the revised DLHS without the 
expansion of the wipe area. Commenters also note there have not been 
any problems reported by HUD grantees concerning the increased wipe 
area. Additionally, using a 2 ft\2\ wipe area satisfies EPA's LQSR 
limits. A laboratory that modifies its sample preparation or 
instrumentation for dust wipe analysis would have to incur the 
additional burden of modifying or acquiring a new accreditation (Ref. 
36), but an increase in the wipe area does not necessarily alter the 
sample preparation or instrumentation. Therefore, a laboratory that 
only requires increased wipe areas may not incur that additional 
burden. EPA agrees with the commenters that expanding the wipe area to 
2 ft\2\ can be an acceptable way for laboratories to meet the lower 
requirements associated with revisions to the DLHS in this final rule.
    There are several potential issues, however, with expanding the 
sampling area to 4 ft\2\ (Refs. 35 and 44). First, although one 
laboratory EPA contacted felt that it would be able to use its 
currently less sensitive instrumentation by instructing its customers 
to wipe a 4 ft\2\ area (Ref. 45), there was no consensus among the 
laboratories with whom EPA spoke as to whether it is practical to 
increase the sampling area to 4 ft\2\ in order to demonstrate 
compliance with the LQSR if the DLHS for floors was decreased to 5 
[mu]g/ft\2\ (Ref. 14). The larger wipe area could interfere with the 
effectiveness of the sampling method and cause problems with 
preparation procedures and laboratory instrumentation (Ref. 14). 
Therefore, EPA does not believe that increasing the wipe area to 4 
ft\2\ would be a good approach for laboratories faced with the decision 
of how to meet the lower LQSR limits with less sensitive 
instrumentation, for a DLHS level lower than 10 [micro]g/ft\2\ for 
floors.
    In addition, in some cases, window sills do not have enough surface 
area to allow for a sampling area that is large enough to collect a 
sufficient amount of dust-lead to meet all laboratories' quantitation 
limits with their existing analytical equipment.
    Thus, EPA believes that setting the DLHS at 10 [micro]g/ft\2\ for 
floors and 100 [micro]g/ft\2\ for window sills is the best way to 
maintain the current number of NLLAP-recognized laboratories by 
ensuring the requirements can be implemented, which in turn helps to 
maximize the potential of this rule for continued risk reduction.
    With DLHS at 10 [micro]g/ft\2\ for floors, laboratories that are 
not able to meet the LQSR limits by simply increasing the wipe area, 
due to their own variable processes and equipment, should be able to do 
so by modifying the sample preparation and revising their accreditation 
to meet new testing limits. There are several potential changes 
laboratories can make to modify their sample preparation that might 
allow a laboratory to lower its quantitation limit and method detection 
limit while using the same analytical instrumentation. To analyze dust 
wipe samples, laboratories take the dust wipe, heat it in a solution, 
and then analyze that solution for lead. Hence, increasing the 
concentration of lead in the digestate will facilitate achieving 
measurements above the quantitation limit without acquiring new 
instrumentation. This can be accomplished by reducing the final volume 
by using a higher acid concentration or evaporating the digestate and 
thereby the final concentration of lead for analysis. Additionally, 
laboratories may be able to use different equipment for heating the 
solution that would allow use of a lower volume of the digestate. 
Laboratories that institute these modifications would not need to start 
from scratch with an entirely new accreditation, but would have to 
modify their existing accreditation to maintain NLLAP recognition. 
However, these modifications to sample preparation have their limits. 
Several of the laboratories that EPA talked to indicated that these 
modifications would become less viable if the DLHS were to decrease 
below the levels in this final rule.
    If the DLHS were set to levels lower than 10 [micro]g/ft\2\ for 
floors and 100 [micro]g/ft\2\ for window sills, EPA believes that an 
increasing number of the laboratories that need to take actions to meet 
the lower LQSR limits will have to use a different type of analytical 
instrument that is more sensitive, especially if the DLHS were set to 5 
[micro]g/ft\2\ for floors and 40 [micro]g/ft\2\ for window sills, as 
some commenters requested. The majority of the laboratories that would 
have to use a different type of analytical instrument would have to 
purchase new instrumentation and revise their accreditation. This 
accreditation revision would likely have to include an on-site 
inspection from an accreditation body (Ref. 36). One commenter 
mentioned that if new instrumentation were required, such an upgrade 
could cost between $80,000-$250,000, ``not including many consumable 
materials and retrofitting the laboratory for the equipment.'' EPA 
agrees with the commenter that the expense of new instrumentation can 
be significant, and notes that from its own research, the time required 
to purchase the new equipment, have it installed, run validation 
studies, optimize the methods and train personnel on its use, and then 
to revise the accreditation with an on-site inspection can be quite 
disruptive to a laboratory's operations. This is especially true for 
smaller laboratories with more limited resources. As more laboratories 
conclude that they must acquire new instrumentation and revise their 
accreditation with an on-site inspection, the likelihood of more 
laboratories discontinuing dust wipe analysis from their portfolios 
increases.
    After the promulgation of this final rule lowering the DLHS, 
laboratories that need to take actions to meet the lower LQSR limits 
will have to take time to review their situation, determine the changes 
they need to make, decide whether they want to continue in the NLLAP 
program, and select among the approaches previously described. For DLHS 
lower than 10 [micro]g/ft\2\ for floors, the number of laboratories 
that would need to acquire new instrumentation, modify sample 
preparation, and revise their accreditation with an on-site inspection 
increases, which would take the most time and resources to accomplish. 
Laboratories that are faced with the decision to either take these 
actions or discontinue dust wipe analysis for lead from their 
portfolios, are much more likely to discontinue the analysis from their 
portfolios if they cannot simply increase the wipe area or modify their 
sample preparation. Based on EPA's research on laboratories' 
capabilities and capacity, EPA believes more laboratories may 
discontinue dust wipe analysis for lead from their portfolios if the 
DLHS were set lower than in this final rule. For these reasons, in 
addition to those discussed earlier in section III.A.(2), EPA believes 
it is within its discretion to set the DLHS at 10 [micro]g/ft\2\ for 
floors and 100 [micro]g/ft\2\ for window sills in consideration of the 
potential for risk reduction, including whether such actions are 
achievable in relation to their application in lead risk reduction 
programs.
    3. 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

[[Page 32642]]

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 
DLHS. Results of the sampling, among other things, are documented in a 
risk assessment report which is required under the LBP Activities Rule 
(Ref. 21). 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 the LBP Activities Rule, risk assessors will compare 
dust sampling results for floors and window sills to the new, lower 
DLHS from this rule. Sampling results above the new hazard standard 
will indicate that a dust-lead hazard is present on the surfaces 
tested. EPA expects that this will result in more hazards being 
identified in a portion of target housing and COFs that undergo risk 
assessments. The final 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, 
the lower dust-lead hazard standard will not result in more information 
being disclosed because property owners would already be disclosing 
results that show dust-lead below the original DLHS of 40 [micro]g/
ft\2\ on floors or below 250 [micro]g/ft\2\ on window sills. However, a 
lower dust-lead 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 will occur when a dust-lead level is below the 
original standard but at or above the standard in this final rule.
    c. Renovation, Repair and Painting (RRP) Rule. To avoid confusion 
about the applicability of this final 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 this 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 part 35, subparts B through 
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. Based on EPA's changes in this 
final rule, HUD plans to revise Chapter 5 of the Guidelines on risk 
assessment and reevaluation and Chapter 15 on clearance based on those 
changes.
    f. LSHR Clearance Requirements. While this final rule does not 
change the clearance levels under EPA's regulations, it will have the 
effect of 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 regulatory 
provisions to establish clearance levels for abatements that are 
different than those 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). Because the EPA's DLHS 
and dust-lead clearance standards for abatements were the same, cross-
referencing different EPA regulatory provisions, at 40 CFR 745.227(e) 
and (h), 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, as explained in the proposed rule, non-abatement 
activities under the LSHR must be cleared using the EPA's DLHS when 
this final rule becomes effective.
    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 part 35, subpart R, and EPA regulations at 40 CFR part 
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).
    This final rule revises 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. As a result of this final action, EPA's 
DLHS will be lower than EPA's clearance standards for

[[Page 32643]]

abatements, and according to HUD, abatements under HUD's LSHR will be 
cleared using the EPA's DLHS.
    g. Effects of a Revision on Previous LBP-related Activities. Since 
the DLHS do not compel specific actions, revisions to the DLHS would 
not in and of themselves retroactively compel actions. Inspection 
reports and risk assessments describe conditions at a specific time. A 
report that indicates no presence of LBP and/or a LBP hazard should not 
imply the absence of those conditions in perpetuity. In addition, this 
rulemaking by itself does not impose retroactive requirements to 
regulated entities that have previously complied with the disclosure 
rule. A seller or lessor must properly disclose any available records 
or reports pertaining to LBP, LBP hazards and/or any lead hazard 
evaluative reports ``before the purchaser or lessee is obligated under 
any contract to purchase or lease target housing that is not otherwise 
an exempt transaction pursuant to Sec.  745.101'' (40 CFR 745.107). The 
seller or lessor is not required to disclose reports or records that 
may be created in the future, after the close of that transaction, in 
perpetuity. Additionally, any LBP-free certification that was issued by 
a certified inspector, based on the previous DLHS, and was issued 
before the effective date of this rulemaking, is still valid going 
forward and may continue to be used for exemption to the disclosure 
rule. However, the DLHS are incorporated into requirements mandated by 
state, federal, tribal, and other programs that may require actions 
based on the revised DLHS. Those other authorities may want to consider 
guidance or other communications with their regulated communities, so 
those entities understand how to comply with the various programs that 
reference the DLHS. A more comprehensive version of EPA's response on 
these issues can be found in section 2.c. of the response to comments 
document. (Ref. 30).

B. The Definition of Lead-Based Paint

    As noted in the preamble, EPA has neither opined nor concluded that 
the definition of LBP may not be sufficiently protective. In response 
to the administrative petition (Ref. 28) and throughout the litigation, 
EPA maintained that it necessarily would first consider whether 
revision to the definition of LBP was appropriate. In the proposed 
rule, EPA requested comment on making no change to the definition of 
LBP.
    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 continues 
to lack sufficient information to conclude that the current definition 
requires revision or to support any specific proposed change to the 
definition of LBP. Some commenters in support of changing the 
definition of LBP discussed paint itself as a hazard, advocating for 
analysis separate and distinct from the causal relationship between LBP 
and dust-lead hazards. One commenter declared that, given examples of 
an independent paint-lead hazard, the current definition is ``clearly 
inadequate.'' EPA reviewed these comments and has expanded the 
discussion of data gaps elsewhere in the preamble to include direct 
ingestion of paint. EPA did not receive any data during the public 
comment period to further inform whether a revision to the current 
definition of LBP is warranted or even possible at this time.
    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. In the proposal, 
EPA requested any new available data or analyses of the relationship 
among levels of lead in paint, dust and risk of adverse health effects. 
Although some commenters supported updating the definition of LBP and/
or said that the current level is inadequate, EPA did not receive data 
or analyses that would further inform whether a revision to the 
definition is warranted at this time. 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, information 
is still needed to quantify the direct ingestion of paint through 
consumption of paint chips or through teething on painted surfaces. 
Finally, it is important to understand how capabilities among various 
LBP testing technology would be affected under a possible revision to 
the definition.
    1. 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 dust-lead on floors before EPA could develop a 
technically supportable proposal to revise the definition of LBP based 
on this route of exposure. 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\). The highest 
dust-lead loadings from LBP are expected to be a result of paint 
removal activities during renovation. During renovation, LBP may be 
disturbed and abraded, leading to elevated dust-lead loading available 
for incidental ingestion. 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 (Refs. 53; 54; 
and 55). Given that the range of concentrations that support these 
models are well above the petitioners' requested concentration of lead 
in paint, 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.
    In an attempt to address this uncertainty and build a modeling 
approach, EPA conducted a literature search for studies that co-report 
lead concentrations in paint and dust in order to identify available 
data (Ref. 53). Among other things, EPA looked to the literature to 
establish statistically valid associations between low concentrations 
of LBP and lead in dust, but was unable to find sufficient information 
to estimate concentrations of lead in household dust from paint 
concentrations below 0.8% by weight. Thus, EPA still needs to consider 
generation of new data, 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. 53), Cox et al. (Ref. 54). Such data is 
needed for EPA 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

[[Page 32644]]

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. 53).
    2. Quantify exposure from direct paint ingestion. EPA would need to 
understand and develop an approach for estimating the amount of direct 
paint consumption and subsequent exposure by children before EPA could 
develop a technically supportable proposal to revise the definition of 
LBP based on ingestion of paint chips and direct teething of painted 
surfaces. Past studies have documented pica behavior as a risk factor 
for exposure to lead from LBP, however these studies have not provided 
a quantitative estimate of paint ingestion. Epidemiological studies 
generally rely on caregiver observations to classify whether a child 
has ever been known to consume paint chips. As described further in the 
Definition of Lead-Based Paint Considerations (Ref. 53), past studies 
estimate that a fraction of young children are known to have directly 
ingested paint, and published case studies of individual children 
provide radiographic evidence of paint chip ingestion. However, neither 
provide quantitative estimates of the amount of LBP ingested over time 
by children, information which is needed to quantify exposure.
    3. Feasibility. In the proposal, EPA requested any new available 
data on the technical feasibility of a revised definition of LBP. 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. EPA did not receive any comments 
with substantive information about 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. 52).
    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. 52).
    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 in the market to meet a potentially 
revised definition of LBP, and the corresponding PCS would need to be 
amended accordingly. If, as a result of a revised definition of LBP, 
the use of XRFs suddenly became unavailable, the effectiveness of the 
LBP activities programs 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 part 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 could 
continue to use this important tool in compliance with the RRP 
regulations.
    The regulated community uses XRF analyzers for inspections and risk 
assessments and uses 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 
performance characteristic 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 and provides adequate enforcement.

[[Page 32645]]

The regulations applicable to state, territorial and tribal programs 
are codified at 40 CFR part 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 in this final rule and future changes to the LBP Activities 
Rule, the Agency is requiring states, territories and tribes to 
demonstrate that they meet any new requirements imposed by this 
rulemaking in order to maintain or obtain authorization. Under this 
requirement, authorized states, territories and tribes have up to two 
years to demonstrate that their programs include any new requirements 
that EPA promulgates. A state, territory or tribe must indicate that it 
meets the requirements of the LBP Activities program in its application 
for authorization or, if already authorized, in a report it must submit 
in accordance with 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 this requirement allows 
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.

D. Effective Date

    EPA has considered the impacts of the revised DLHS on NLLAP-
recognized laboratories. This rule will become effective on January 6, 
2020 in order to provide a reasonable amount of time for NLLAP-
recognized laboratories to take actions to meet the lower LQSR limits 
so they can continue providing dust wipe testing services to the 
regulated community at the time the rule becomes effective.
    In order to obtain a better understanding of laboratories' 
capability and capacity for dust wipe analysis, EPA conducted 
teleconferences with two accrediting organizations (Refs. 34; 35; and 
36), five federally funded laboratories (Refs. 37; 38; 39; 40; and 41), 
and nine state or privately funded laboratories (Refs. 42; 43; 44; 45; 
46; 47; 48; 49; and 50). Based on these conversations, EPA estimated 
that over half of accredited laboratories would have to take actions to 
meet the lower LQSR limits. They can accomplish this by asking their 
customers to increase the wipe area sampled and/or revising their 
operating procedures, validating the changes, and revising their 
accreditation accordingly. Such actions can take months to complete. 
EPA therefore believes that the effective date provides needed 
flexibility for laboratories while ensuring that the revised DLHS 
become effective in a timely manner.

IV. References

    The following is a listing 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. Review of the Dust-Lead Hazard Standards and the Definition 
of Lead-Based Paint; Proposed Rule. Federal Register (83 FR 30889, 
July 2, 2018) (FRL-9976-04).
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. President's Task Force on Environmental Health Risks and Safety 
Risks to Children. Federal Action Plan to Reduce Childhood Lead 
Exposures and Associated Health Impacts. December 2018. https://www.epa.gov/lead/federal-action-plan-reduce-childhood-lead-exposure.
8. 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.
9. CDC. Blood Lead Levels in Children Aged 1-5 Years--United States, 
1999-2010. CDC Morbidity and Mortality Weekly Report, Vol. 62 No. 
13, April 5, 2013. https://www.cdc.gov/mmwr/pdf/wk/mm6213.pdf.
10. EPA. Integrated Science Assessment (ISA) for Lead (Final Report, 
Jul 2013). U.S. EPA, Washington, DC, EPA/600/R-10/075F, 2013. 
https://cfpub.epa.gov/ncea/isa/recordisplay.cfm?deid=255721.
11. HHS, National Toxicology Program. NTP Monograph on Health 
Effects of Low-Level Lead. National Institute of Environmental 
Health Sciences, Research Triangle Park, NC. NIH Pub. No. 12-5996. 
ISSN 2330-1279. June 13, 2012. https://ntp.niehs.nih.gov/ntp/ohat/lead/final/monographhealtheffectslowlevellead_newissn_508.pdf.
12. Children's Health Protection Advisory Committee (CHPAC). Letter 
to Lisa P. Jackson RE: Childhood Lead Poisoning Prevention. March 
29, 2012. https://www.epa.gov/sites/production/files/2015-10/documents/chpac_lead_letter_2012_03_29.pdf.
13. CHPAC. Letter to Scott Pruitt RE: Highest Priorities for 
Childhood Lead Exposure Prevention. March 24, 2017. https://www.epa.gov/sites/production/files/2017-04/documents/2017.03.24_chpac_lead_hazard_reduction_letter.pdf.
14. EPA, Office of Pollution Prevention and Toxics. Economic 
Analysis of the Final Rule to Revise the TSCA Dust-Lead Hazard 
Standards. June 2019.
15. CDC. Lead Poisoning in Children (February 2011). https://www.cdc.gov/healthcommunication/toolstemplates/entertainmented/tips/LeadPoisoningChildren.html.
16. Agency for Toxic Substances and Disease Registry, Division of 
Toxicology and Human Health Sciences. Lead--ToxFAQsTM CAS 
# 7439-92-1, August 2007. https://www.atsdr.cdc.gov/toxfaqs/tfacts13.pdf.
17. EPA. Exposure Factors Handbook Chapter 5 (Update): Soil and Dust 
Ingestion. U.S. EPA Office of Research and Development, Washington, 
DC, EPA/600/R-17/384F, 2017. https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.
18. 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 2019.
19. Zartarian, V., Xue, J., Tornero-Velez, R., & Brown, J. 
Children's Lead Exposure: A Multimedia Modeling Analysis to Guide 
Public Health Decision-Making. Environmental Health Perspectives, 
125(9), 097009-097009. September 12, 2017. https://doi.org/10.1289/EHP1605.
20. 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://ptfceh.niehs.nih.gov/features/assets/files/key_federal_programs_to_reduce_childhood_lead_exposures_and_eliminate_associated_health_impactspresidents_508.pdf.
21. EPA. Lead; Requirements for Lead-Based Paint Activities in 
Target Housing and

[[Page 32646]]

Child-Occupied Facilities; Final Rule. Federal Register (61 FR 
45778, August 29, 1996) (FRL-5389-9).
22. EPA. Lead; Renovation, Repair, and Painting Program; Final Rule. 
Federal Register (73 FR 21692, April 22, 2008) (FRL-8355-7).
23. 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).
24. 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).
25. 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).
26. HUD, Office of Lead Hazard Control and Healthy Homes. Lead 
Hazard Control Clearance Survey. Final Report. October 2015. https://www.hud.gov/sites/documents/CLEARANCESURVEY_24OCT15.PDF.
27. Sierra Club et al. Letter to Lisa Jackson RE: Citizen Petition 
to EPA Regarding the Paint and Dust Lead Standards. August 10, 2009. 
https://www.epa.gov/sites/production/files/2015-10/documents/epa_lead_standards_petition_final.pdf.
28. 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.
29. EPA. News Releases from Headquarters: Chemical Safety and 
Pollution Prevention (OCSPP). EPA Proposes Strengthening the Dust-
Lead Hazard Standards to Reduce Exposures to Children. June 22, 
2018. https://www.epa.gov/newsreleases/epa-proposes-strengthening-dust-lead-hazard-standards-reduce-exposures-children.
30. EPA. Review of The Dust-Lead Hazard Standards and the Definition 
of Lead-Based Paint. Response to Public Comments. June 2019.
31. 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 March 22, 2019.
32. Wilson, J., et al. Evaluation of HUD-funded lead hazard control 
treatments at 6 years post-intervention. 102 Environmental Research 
237-248. June 5, 2006. https://pdfs.semanticscholar.org/8742/4e5649d22b93d9b1265178e118716d5147fa.pdf.
33. EPA. EPA National Lead Laboratory Accreditation Program. 
Laboratory Quality System Requirements (LQSR), Revision 3.0. 
November 5, 2007. https://www.epa.gov/lead/national-lead-laboratory-accreditation-program-laboratory-quality-system-requirements-revision.
34. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and A2LA. September 21, 2018.
35. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and American Industrial Hygiene Association. 
September 4, 2018.
36. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and American Industrial Hygiene Association. 
September 26, 2018.
37. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and Lawrence Livermore National Laboratory. 
October 11, 2018.
38. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and Navy & Marine Corp Public Health Center. 
October 30, 2018.
39. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and Navy Environmental & Preventative 
Medicine, Unit 2 CIHL. October 31, 2018.
40. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and Norfolk Naval Shipyard, Environmental 
Chemistry Laboratory. October 25, 2018.
41. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and US Army Public Health Center, Aberdeen 
Proving Ground. October 18, 2018.
42. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and ACT Environmental Services, Inc. November 
15, 2018.
43. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and Atlas Environmental Laboratory. November 
6, 2018.
44. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and Eastern Analytical Services, Inc. 
November 6, 2018.
45. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and EMSL Analytical, Inc. October 24, 2018.
46. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and Fiberquant Analytical Services. November 
5, 2018.
47. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and Forensic Analytical Laboratories, Inc. 
October 23, 2018.
48. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and QuanTEM Laboratories. November 13, 2018.
49. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and R. J. Lee Group, Inc. October 24, 2018.
50. EPA, Office of Pollution Prevention and Toxics. Summary of 
discussion between EPA and University of Iowa Hygienic Laboratory. 
November 1, 2018.
51. HUD, Office of Lead Hazard Control and Healthy Homes. Revised 
Dust-Lead Action Levels for Risk Assessment and Clearance. OLHCHH 
Policy Guidance 2017-01 Rev 1. February 16, 2017. https://www.hud.gov/sites/documents/LeadDustLevels_rev1.pdf.
52. 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. https://www.hud.gov/program_offices/healthy_homes/lbp/hudguidelines.
53. EPA, Office of Pollution Prevention and Toxics. Definition of 
Lead-Based Paint Considerations. June 2019.
54. Cox et al. Improving the Confidence Level in Lead Clearance 
Examination Results through Modifications to Dust Sampling 
Protocols. Journal of ASTM International, Vol. 8, No. 8. 2011.
55. 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.

V. Statutory and Executive Order 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. 14).

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

    This action is considered an Executive Order 13771 regulatory 
action (82 FR 9339, February 3, 2017). Details on the estimated costs 
of this final 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 part 35, 
subpart A, and 40 CFR part 745, subpart F, sellers and lessors must 
already provide purchasers or

[[Page 32647]]

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 information collection request 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 landlords who may incur costs for lead hazard 
reduction measures in compliance with the HUD Lead Safe Housing Rule 
(LSHR); residential remodelers (who may incur costs associated with 
additional cleaning and sealing in houses undergoing rehabilitation 
subject to the HUD LSHR); and abatement firms (who may also incur costs 
associated with additional cleaning and sealing under the LSHR). The 
Agency has determined that approximately 15,000 small businesses would 
be subject to this rule, of which 96% have cost impacts less than 1% of 
revenues, 4% have impacts between 1% and 3% of revenues, and less than 
1% have impacts greater than 3% of revenues. Details of the analysis of 
the potential costs and benefits associated with this action are 
presented in EPA's Economic Analysis, which is available in the docket 
(Ref. 14).
    The rule sets health-based hazard standards for dust lead loadings 
on floors and window sills. The DLHS do not require the owners of 
properties covered by this final 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 LBP hazards, these standards are 
directly incorporated by reference into certain requirements mandated 
by HUD in housing subject to the LSHR. Aside from the HUD regulations, 
this rule does not impose new federal requirements on small entities.
    EPA's Economic Analysis estimates potential costs for activities in 
two types of target housing--those subject to the HUD LSHR and those 
where a child with a blood lead level exceeding a federal or state 
threshold lives. The analysis presents low and high scenarios for the 
number of housing units where a child with a blood lead level exceeding 
a federal or state threshold lives. For the low scenario, environmental 
investigations are assumed to be conducted when a child's blood lead 
level exceeds the threshold set by that child's state. These thresholds 
vary from 5 [micro]g/dL to 20 [micro]g/dL, depending on the state. For 
the high scenario, environmental investigations are assumed to be 
conducted when a child's blood lead level exceeds the CDC's reference 
level of 5 [micro]g/dL.
    In order to estimate the broader potential impacts of the rule, EPA 
assumed that environmental investigations triggered by a child with a 
blood lead level exceeding a federal or state threshold include dust 
wipe testing of the child's home and that a clean-up occurs whenever 
the investigation indicates that dust-lead levels exceed a hazard 
standard. As previously indicated, the rule does not require these 
actions. Where dust-lead levels are below the standards in the 2001 
rule but above the standards in this final rule, the potential clean-up 
costs are also included in the economic analysis. The low and high 
scenarios for the number of housing units affect the estimated number 
of small business that might incur costs for cleaning and additional 
dust wipe testing once the hazard standards in this final rule are in 
effect. Based on the two scenarios, a total of 22,000 to 48,000 small 
businesses are considered in the analysis (this total includes those 
firms mentioned above in the discussion of the HUD LSHR). About 7,000 
to 33,000 are lessors leasing housing where a child with a blood lead 
level exceeding a federal or state threshold resides.
    When considering this broader set of firms, EPA's analysis 
indicates that nearly 300 landlords that are small businesses may have 
cost impacts over 3% under the low scenario, and almost 1,500 may have 
such impacts under the high scenario. However, the high scenario makes 
a series of assumptions that are likely to overstate costs and impacts. 
The high scenario assumes that in all instances where a child's blood 
lead level is between the threshold set by that child's state and the 
CDC reference value, the dust lead levels are tested in the residence 
even when not required; that in all cases where the loadings are above 
the hazard standard in a rental unit the landlord takes action, and 
incurs costs, to reduce the dust lead levels even when that is not 
required. The analysis further assumes that in all those cases the 
costs are borne entirely by the landlord (as opposed to being passed 
through or recouped in whole or in part through increased rent). As a 
result of this series of conservative assumptions, the high scenario 
functions as a bounding estimate. A more realistic assessment of the 
potential impacts is that they are between the high and low scenarios. 
In light of these considerations, even if the broader set of firms were 
to be considered, EPA would certify that this action would not have a 
significant economic impact on a substantial number of small entities.

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 $32 million to $117 million per 
year (Ref. 14), which does not exceed the inflation-adjusted unfunded 
mandate threshold of $156 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, 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

[[Page 32648]]

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. 18)
    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 
50,000 to 200,000 children per year affected by the rule (Ref. 14).

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)

    Since this rulemaking does not involve technical standards, NTTAA 
section 12(d) (15 U.S.C. 272 note) does not apply to this action.

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

    This action is not expected to 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). The 
documentation for this decision is contained in the Economic Analysis, 
which is available in the docket (Ref. 14). EPA's Economic Analysis 
estimates that the average baseline blood lead levels of children who 
are affected by the rule (particularly children in minority and low-
income households) are higher than the nationwide average. The revised 
hazard standards would reduce exposure to lead for all residents of 
affected housing. Therefore, EPA has determined that the regulatory 
options will not have disproportionately high and adverse human health 
or environmental effects on any population, including any minority 
population or low-income population.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801 et seq., and the 
EPA will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 745

    Environmental protection, Hazardous substances, Lead poisoning, 
Reporting and recordkeeping requirements.

    Dated: June 21, 2019.
Andrew R. Wheeler,
Administrator.

    Therefore, 40 CFR chapter I, subchapter R, is 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 [micro]g/ft\2\ for floors and 100 [micro]g/ft\2\ for 
interior window sills, respectively;
* * * * *

0
4. In Sec.  745.325, paragraph (e) is revised 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 two 
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) 
but no later than two 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. 2019-14024 Filed 7-8-19; 8:45 am]
BILLING CODE 6560-50-P


