Dust in the wind? New EPA regulations to sweep up lead levels in many structures

The Periodic | By WALKER LIVINGSTON, ESQ

Jul. 13, 2023

The Environmental Protection Agency has announced new dust-lead hazard standards and clearance levels, which regulate levels of lead dust on floors and windowsills. The standards proposed are significantly stronger than current ones and would result in reduced lead exposures for about 500,000 children under six per year.

Regulatory background

  • The Environmental Protection Agency administers a variety of lead-related standards to reduce exposure to lead in residential and occupational settings. These include the Lead Renovation, Repair and Painting Program (RRP) Rule, Lead Abatement Program: Training and Certification Program for Lead-based Paint Activities, Residential Lead-Based Paint Disclosure Program, and Residential Hazard Standards and Clearance Levels for Lead in Paint, Dust and Soil. Each of these programs targets a different type of lead exposure faced by communities around the country.
  • The RRP rule, issued in 2008 (and further amended in 2010 and 2011) focuses on protecting the public from lead paint-related hazards created during renovation and repair of structures, which can create lead dust when lead paint-containing surfaces are sanded or otherwise disturbed.
  • The Residential Hazard Standards and Clearance Levels rules, contained in the Toxic Substances Control Act (TSCA) sections 401, 402, and 403 provide a basis for EPA risk assessors to review whether lead dust hazards are present in pre-1978 homes and childcare facilities. The EPA established dust-lead hazard standards (DLHS) and dust-lead clearance levels (DLCL) in 2001. DLHS provide the basis for EPA risk assessors to determine whether lead-based hazards are present in pre-1978 homes and childcare facilities, and DLCL are used to evaluate whether lead dust cleaning measures were effective and will properly reduce risks of lead to children.
  • In June 2019, the EPA set the DLHS for floors at 10 micrograms per square foot (μg/ft²) and 100 μg/ft² for window sills. The next year in January 2021, the EPA also changed the DLCL to 10 μg/ft² for floors, 100 μg/ft² for windowsills, but kept the value for window troughs at 400 μg/ft².
  • An EPA risk assessor will utilize the standards when comparing lead dust levels from samples against the applicable hazard standards. If the levels are above the hazard standards, the assessor must report this to the building owner. Generally, the owner or operator will then carry out lead abatement procedures (but is not necessarily required to) and go through another set of testing to ensure that the cleaning procedures removed lead to a level below the DLCL.

New proposed EPA regulations

  • On July 12, 2023, the EPA announced that it was reducing both the DLHS and DLCL. The proposed rule would lower DLHS to “any level greater than 0 reported by an EPA-recognized laboratory” and DLCL to 3 µg/ft2 on floors, 20 µg/ft2 on windowsills, and 25 µg/ft2 on window troughs. These stronger standards would be applicable both to houses built before 1978 as well as childcare facilities to reduce lead exposures of children under six by 477,000.
  • The EPA believes that these levels are the lowest that are safe, effective, and reliable. However, the EPA has recognized that there is no safe level of lead in blood and utilized only health-related factors to determine the DLHS. The agency explained that it did not consider cost in determining the DLHS, and that the “greater than zero” approach it felt was appropriate based on modeling data. The basis for the DLCL was a Ninth Circuit Court of Appeals opinion from 2021, where the agency agreed to consider factors like achievability, reliability, and safety in concert with health-based concerns.
  • The proposed regulations would not impose retroactive requirements on regulated entities that have previously performed post-abatement dust testing using the currently approved concentrations. The proposed rule would also change the LBP definition to be “any measure or set of measures designed to eliminate lead-based paint hazards,” which would require compliance under the DLCL.

Impact of the proposed regulations and the future

  • The EPA expects to publish the final version of the rule in Fall 2024, with the effective date 60 days after publication in the Federal Register. Therefore, the new regulations will most likely be effective late 2024 or early 2025 if the EPA keeps to its schedule. However, the agency already published the rule slightly later than expected. In the Fall 2022 Unified Agenda, the rule was anticipated in May 2023 and in the Spring 2023 Unified Agenda, EPA expected to publish it in June 2023. However, the rule took longer than the typical 90-day review period that the Office of Information and Regulatory Affairs undertakes for many EPA regulations, meaning that the finalized rule could be similarly delayed.
  • The rule mostly affects older construction and childcare facilities, so its effects may not be felt very widely. However, the choice for any detection greater than zero for lead levels and the significant drop for concentrations for the DLCL indicates that the agency is continuing to aggressively pursue lower lead concentration rules in every aspect.

To contact the author of this analysis, please email Walker Livingston.
To contact the editor of this analysis, please email Scott Stephens.

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