3 June 1998

This provides the introduction of the Environmental Protection Agency's proposed rule on "Identification of Dangerous Levels of Lead." The full document (410K) is available Zip-compressed: http://jya.com/epa060398.zip (118K)

    Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html

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    [Federal Register: June 3, 1998 (Volume 63, Number 106)]
    [Proposed Rules]
    [Page 30301-30355]
    From the Federal Register Online via GPO Access [wais.access.gpo.gov]
    [DOCID:fr03jn98-45]

    [[Page 30301]]

    _______________________________________________________________________

    Part III

    Environmental Protection Agency

    _______________________________________________________________________

    40 CFR Part 745

    Lead; Identification of Dangerous Levels of Lead; Proposed Rule

    [[Page 30302]]

    ENVIRONMENTAL PROTECTION AGENCY

    40 CFR Part 745

    [OPPTS-62156; FRL-5791-9]
    RIN 2070-AC63

    Lead; Identification of Dangerous Levels of Lead

    AGENCY: Environmental Protection Agency (EPA).

    ACTION: Notice of proposed rulemaking.

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    SUMMARY: In accordance with section 403 of the Toxic Substances Control
    Act (TSCA), as amended by the Residential Lead-Based Paint Hazard
    Reduction Act of 1992, also known as ``Title X,'' EPA is proposing a
    regulation to establish standards for lead-based paint hazards in most
    pre-1978 housing and child-occupied facilities. This proposed
    regulation is a focal point of the Federal lead program and supports
    the implementation of regulations already promulgated and others under
    development which deal with worker training and certification, lead
    hazard disclosure in real estate transactions, requirements for lead
    cleanup under State authorities, lead hazard evaluation and control in
    Federally-owned and Federally-assisted housing, and U.S. Department of
    Housing and Urban Development (HUD) grants to assist in lead hazard
    abatement. In addition, today's action also proposes, under the
    authority of TSCA section 402, residential lead dust cleanup levels and
    amendments to dust and soil sampling requirements and, under the
    authority of TSCA section 404, amendments to State program
    authorization requirements. By supporting the implementation of the
    national lead program, this proposed regulation would help to prevent
    lead poisoning in children under the age of 6.

    DATES: Written comments in response to this proposed rule must be
    received on or before September 1, 1998.

    ADDRESSES: Each comment must bear the docket control number OPPTS-
    62156. All comments should be sent in triplicate to: OPPT Document
    Control Officer (7407), Office of Pollution Prevention and Toxics,
    Environmental Protection Agency, 401 M St., SW., Rm. G099, East Tower,
    Washington, DC 20460.
        Comments and data may also be submitted electronically to:
    oppt.ncic@epamail.epa.gov. Follow the instructions under Unit X. of
    this document. No Confidential Business Information (CBI) should be
    submitted through e-mail.
        All comments which contain information claimed as CBI must be
    clearly marked as such. Three copies, sanitized of any comments
    containing information claimed as CBI, must also be submitted and will
    be placed in the public record for this rulemaking. Persons submitting
    information, any portion of which they believe is entitled to treatment
    as CBI by EPA, must assert a business confidentiality claim in
    accordance with 40 CFR 2.203(b) for each such portion. This claim must
    be made at the time that the information is submitted to EPA. If a
    submitter does not assert a confidentiality claim at the time of
    submission, EPA will consider this as a waiver of any confidentiality
    claim and the information may be made available to the public by EPA
    without further notice to the submitter.
        If requested, EPA will schedule public meetings where oral comments
    will be heard. EPA will announce in the Federal Register the time and
    place of any public meetings. Oral statements will be scheduled on a
    first come first served basis by calling the telephone number listed in
    the Federal Register notice that announces these meetings. All
    statements will be made part of the public record and will be
    considered in the development of the final rule.
    FOR FURTHER INFORMATION CONTACT: For general information contact:
    National Lead Information Center's Clearinghouse, 1-800-424-LEAD(5323).
    For specific technical and policy questions contact: Jonathan Jacobson,
    (202) 260-3779; jacobson.jonathan@epamail.epa.gov.
    SUPPLEMENTARY INFORMATION:

    I. Overview

        This overview identifies entities potentially affected by the rule,
    summarizes the proposed rule, describes the uses and key limitations of
    the proposal's scope, and provides a roadmap of the preamble.

    A. Regulated Entities

        The following table identifies the entities that would be involved
    in the implementation of regulations that would be affected by today's
    proposal and the effect of the proposal on implementation of those
    regulations.

    ------------------------------------------------------------------------
                                          Examples of
                Category                   Entities       Effect of Proposal
    ------------------------------------------------------------------------
    Lead abatement professionals      Workers,            Provides standards
                                       supervisors,        that risk
                                       inspectors, risk    assessors would
                                       assessors, and      use to identify
                                       project designers   hazards and
                                       engaged in lead-    evaluate
                                       based paint         clearance tests;
                                       activities          helps determine
                                                           when certified
                                                           professionals
                                                           would be required
                                                           to perform
                                                           abatements

    Training providers                Firms providing     Provides standards
                                       training services   that training
                                       in lead-based       providers would
                                       paint activities    have to teach in
                                                           their courses

    HUD and other Federal agencies                        Proposed standards
     that own residential property                         identify hazards
                                                           that Federal
                                                           agencies would
                                                           have to abate in
                                                           pre-1960 housing
                                                           prior to sale

    Property owners who receive       State and city      Proposed standards
     assistance through Federal        public housing      identify hazards
     housing programs                  authorities,        that property
                                       owners of multi-    owners would have
                                       family rental       to abate or
                                       properties who      reduce as
                                       receive project-    specified by
                                       based assistance,   regulations
                                       owners of rental    currently be
                                       properties who      developed by HUD
                                       lease units under   under authority
                                       HUD's tenant-       of Title X,
                                       based assistance    section 1012
                                       program

    Property owners                   Owner occupants,    Proposed standards
                                       rental property     identify hazards
                                       owners, public      that would have
                                       housing             to be disclosed
                                       authorities,        under EPA/HUD
                                       Federal agencies    joint regulations
                                                           promulgated under
                                                           Title X, section
                                                           1018
    ------------------------------------------------------------------------

        This table is not intended to be exhaustive, but rather provides a
    guide for readers likely to be affected by this action through
    implementation of the elements of the programs discussed in this
    proposal. To determine whether

    [[Page 30303]]

    you, your business, or your agency is affected, you should carefully
    examine the Requirements for Lead-Based Paint Activities at 40 CFR part
    745, subpart L and subpart Q and Lead-Based Paint Disclosure at 40 CFR
    part 745, subpart F and 24 CFR part 35, subpart H. The regulations
    covering evaluation and control of lead-based paint hazards in HUD-
    associated and Federally-owned housing are currently under development.
    Proposed regulations were published in the Federal Register on June 7,
    1996 (61 FR 29169). If you have any questions regarding the
    applicability of this action to a particular entity, consult the person
    listed in the ``FOR FURTHER INFORMATION CONTACT'' section.

    B. Summary of the Proposed Rule

        1. Lead-Based Paint Hazard Standards. EPA is proposing the
    amendments in this document primarily under the authority of section
    403 of TSCA. Section 403 requires EPA to promulgate regulations that
    ``identify . . . lead-based paint hazards, lead-contaminated dust and
    lead-contaminated soil'' for purposes of the entire Title X which
    includes Title IV of TSCA. Lead-based paint hazards, under TSCA section
    401, 15 U.S.C. 2681, are defined as of conditions of lead-based paint
    and lead-contaminated dust and soil that ``would result'' in adverse
    human health effects (15 U.S.C. 2681(10)). Lead-based paint hazards
    from all three sources apply to target housing (i.e., most pre-1978
    housing) and child-occupied facilities.
        The proposed standard for the paint component, called hazardous
    lead-based paint, is lead-based paint in poor condition. Paint in poor
    condition is defined as more than 10 square feet (ft<SUP>2</SUP>) of
    deteriorated paint on exterior components with large surface areas,
    more than 2 ft<SUP>2</SUP> of deteriorated paint on interior components
    with large surface areas (e.g., walls, ceilings, floors), or
    deteriorated paint more than 10 percent of the total surface area of
    exterior or interior components with small surface areas (e.g., trim,
    baseboards). The proposed standards for dust-lead hazards are the
    average levels of lead in dust that equals or exceeds 50 micrograms per
    square foot (<greek-m>g/ft<SUP>2</SUP>) on uncarpeted floors and 250
    <greek-m>g/ft<SUP>2</SUP> on interior window sills. The proposed
    standard for soil-lead hazards is the total lead that equals or exceeds
    2,000 parts per million (ppm) based on a yard-wide average soil-lead
    concentration rather than maximum or worst-case values.
        Although the proposed regulation does not require property owners
    to respond to the presence of lead-based paint hazards, EPA would
    recommend that appropriate measures should be taken, commensurate with
    the risk reduction achieved, to reduce or eliminate the hazards. Small
    amounts of hazardous lead-based paint can be addressed by repairing
    deteriorated paint. Larger amounts of hazardous lead-based paint should
    be abated, meaning that the paint can be removed from the component,
    the component can be replaced, or the paint can be enclosed.
        Dust-lead hazards should be addressed through intensive cleaning.
    If household surfaces are smooth and cleanable, regular household
    cleaning can probably maintain acceptably low levels of lead in dust in
    the absence of any event (e.g., remodeling project) that reintroduces
    large amounts of dust contaminated with lead. Soil-lead hazards should
    be eliminated. Currently available options include soil removal and
    permanently covering the soil (i.e., paving).
        In addition, this document proposes to identify a soil-lead level
    of concern of 400 ppm based on a yard-wide average, which represents a
    level at which risk should be communicated to the public as compared to
    the more active risk reduction measures recommended for hazards. This
    level will not be included in the regulation because it would impose no
    legally recognizable requirements on any person or entities subject to
    this regulation. Nevertheless, if a soil-lead hazard is not present,
    but lead in soil exceeds the level of concern, EPA recommends that low
    cost measures, which may be sufficient to reduce exposure, be
    implemented. These measures include but are not limited to covering
    bare soil, placement of washable doormats, more frequent washing of
    hands and toys, and access restrictions. Access restrictions should
    only be used if there are other parts of the yard that are available to
    the residents.
        EPA is planning to develop a guidance document to accompany the
    final regulation that will explain these recommended responses to lead-
    based paint hazards and the soil-lead level of concern in greater
    detail.
        It is important to note that the proposed standards are intended to
    be used prospectively. That is, they should be used to identify
    properties that present risks to children before children are harmed.
    These standards would not be appropriate to use when identifying the
    sources of exposure for a lead-poisoned child. When a property is being
    evaluated in response to the identification of a lead-poisoned child,
    the risk assessor in cooperation of a local public health official
    should identify and consider all sources of lead exposure.
        The proposed TSCA section 403 standards are based on the best data
    and analytical tools currently available to the Agency. EPA expects
    that the standards may need to be modified over time as better tools
    and data become available. The Agency, however, believes that issuing
    standards now, even in the face of considerable uncertainty, is
    consistent both with the public's need for information from EPA and the
    statutory intent to develop standards with currently available
    information.
        In this document, EPA is also proposing amendments to the existing
    rules issued under TSCA sections 402 and 404, including: (1)
    Requirements for interpreting the results of sampling of lead materials
    for purposes of assessing risk; (2) clearance standards for cleaning up
    hazardous lead dust of 50 <greek-m>g/ft<SUP>2</SUP> for uncarpeted
    floors, 250 <greek-m>g/ft<SUP>2</SUP> for interior window sills, and
    800 <greek-m>g/ft<SUP>2</SUP> for window troughs; (3) amendments to the
    dust and soil sampling locations in the risk assessment work practice
    standards at 40 CFR 745.227; (4) work practice standards for the
    management of soil removed during a soil abatement; and (5) amendments
    to the State and Tribal program authorization requirements under 40 CFR
    part 745, subpart Q.

    C. Uses of the Standards

        The TSCA section 403 standards support implementation of key
    provisions of Title X which would require action with respect to lead-
    based paint hazards by both private parties and the government,
    principally for EPA and programs under the auspices of the Department
    of Housing and Urban Development (HUD). These provisions include
    eligibility criteria for the Department of Housing and Urban
    Development's (HUD) lead hazard control grant program (section 1011 of
    Title X), which authorizes grants to clean up lead-based paint hazards.
    In addition, Title X imposes certain requirements on owners of HUD-
    associated housing (section 1012 of Title X) and Federal agencies
    selling residential properties they own to evaluate and control lead-
    based paint hazards (section 1013 of Title X). Sellers and lessors of
    housing built before 1978 have obligations to disclose known lead-based
    paint and lead-based paint hazards prior to sale or rental (section
    1018 of Title X). Regulations also impose requirements to use certified
    workers for evaluation and cleanup of

    [[Page 30304]]

    lead-based paint hazards (section 402 of TSCA). These provisions are
    described in more detail in Unit VIII. of this preamble.
        EPA does note, however, that the regulations would not require
    private property owners to undertake hazard control actions when
    hazards are identified. Instead, EPA expects that concern about
    children's health, liability exposure and other market forces will
    provide incentive for property owners to take action voluntarily.
        In addition to their applicability within Title X, EPA anticipates
    that the TSCA section 403 regulations will have broader uses. The
    proposed regulations will play a significant role in public education,
    communicating the Agency's best judgment concerning the identification
    of lead-based paint hazards to property owners, State and local
    officials, tenants, and other decision-makers. EPA also expects that
    public and private institutions may incorporate the standards into
    State and local laws, housing codes, and lending and insurance
    underwriting standards.

    D. Limitations of the Proposed Rule

        During the regulatory development process, it became clear that
    significant confusion and uncertainty exists about the requirements and
    purpose of the TSCA section 403 regulations. To address this confusion
    and uncertainty, EPA wishes to highlight the major limitations and
    other issues related to the scope and use of today's proposal.
        First, this proposal does not establish a new definition for lead-
    based paint, defined by statute as paint with lead levels equal to or
    exceeding 1.0 milligrams per square centimeter (mg/cm<SUP>2</SUP>) or
    0.5 percent by weight (see section 302(c) of the Lead-Poisoning
    Prevention Act, 42 U.S.C. 4822(c) and TSCA section 401(9)). Under Title
    X, only the Secretary of Housing and Urban Development has the
    authority to change the standard for lead-based paint in target housing
    (see TSCA section 401(9)). Title IV provides EPA the authority to
    change the standard only for lead-based paint in non-residential
    applications (e.g., public and commercial buildings, steel structures)
    (see TSCA section 401(9)). This proposal does not include any changes
    to this statutory definition.
        Second, the proposed standards are intended to identify lead-based
    paint hazards when the lead-based paint risk assessment is performed.
    Because the conditions of lead-based paint and the levels of lead in
    dust and soil are constantly changing, the results of the risk
    assessment communicate conditions at the time the measurements are
    taken and the observations made. The proposed standards do not address
    the potential for hazards to develop. EPA recognizes, however, that
    potential hazards (e.g., intact lead-based paint on a ceiling) may
    become actual hazards as conditions change over time. Periodic
    reevaluation of a property would enable a property owner to determine
    whether potential hazards have become actual hazards. Recommendations
    concerning reevaluation will be provided in a separate guidance
    document that EPA is planning to issue.
        Third, because the TSCA section 403 standards are established for
    the purposes of Title X and TSCA Title IV, they do not apply to housing
    and facilities occupied by children built during or after 1978, as well
    as some pre-1978 housing that is not included in the definition of
    target housing (e.g., 0-bedroom dwellings). EPA recognizes, however,
    that property owners and other decision-makers may be concerned about
    the presence of elevated levels of lead in dust and soil in housing and
    facilities occupied by children not covered by the standards. In such
    cases, EPA encourages these owners and decision-makers to use the
    standards to help determine whether actions should be taken to reduce
    risks to young children.
        Fourth, the proposed regulations do not set standards that can be
    used to identify housing that is free from risks associated with
    exposure to lead. Such standards would be difficult to define,
    unworkable in practice, and inconsistent with the intent of Title X.
    Virtually all target housing has some lead present in paint, dust, and/
    or soil, which, under certain circumstances, may present risk to
    children. Furthermore, these risks often will depend on circumstances
    that may change quickly, such as the physical condition of the
    property. Thus, housing that presents minimal risks when examined may
    present substantial risks later.

    E. Preamble Overview

        The remainder of this preamble consists of eleven units. Unit II.
    provides background information, including: a description of the
    residential lead-based paint problem; Title X as a legislative
    response; key aspects of the regulatory development process; and the
    Agency's general standard-setting approach. Unit III. is a section-by-
    section review of the proposed regulatory provisions. Unit IV. presents
    EPA's interpretation of the statutory authority for the proposed TSCA
    section 403 standards, the Agency's policy basis for the proposed
    standards, and EPA's decisions for the proposed TSCA section 403
    standards. This unit includes a summary of the technical analyses
    conducted by the Agency to support these decisions. Unit V. discusses a
    range of issues that affected EPA's decision-making during the
    regulatory development process. Unit VI. presents EPA's rationale and
    decisions for requirements on comparing risk assessment sampling
    results to the TSCA section 403 standards. Unit VII. describes the
    Agency's rationale and decisions concerning clearance standards and
    other amendments to the TSCA section 402 regulations related to work
    practice standards and TSCA section 404 regulations concerning EPA
    authorization of State and Tribal programs. Unit VIII. describes the
    effect that today's proposal will have on other Title X regulations and
    programs, and Unit IX. discusses the relationship between the proposed
    regulations and other EPA programs. Unit X. provides information on the
    public record supporting this regulation (``the docket''). Unit XI.
    presents the bibliographic references cited in the preamble, which are
    also part of the docket. Unit XII. presents a summary of the regulatory
    assessment analyses and Agency determinations conducted in response to
    various Federal laws and Executive orders concerning the public health
    and economic impact of the proposed regulation.