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Addressing childhood lead exposure is a priority for the Environmental Protection Agency (EPA). This rule addresses health concerns for all affected communities, including children living in communities with environmental justice concerns, who have significantly higher blood lead levels (BLLs) than other children. As part of EPA's efforts to reduce childhood lead exposure, and in accordance with a U.S. Court of Appeals for the Ninth Circuit 2021 opinion, EPA proposed to lower the dust-lead hazard standards (DLHS) from 10 micrograms per square foot (µg/ft2) and 100 µg/ft2 for floors and window sills to any reportable level as analyzed by a laboratory recognized by EPA’s National Lead Laboratory Accreditation Program. This is a non-numeric value that the Agency refers to as greater than zero µg/ft2 and may vary based on laboratory or test. While EPA’s DLHS do not compel property owners or occupants to evaluate their property for lead-based paint (LBP) hazards nor take control actions (40 CFR 745.61(c)), if an LBP activity such as an abatement is performed, then EPA’s regulations set requirements for doing so (40 CFR 745.220(d)). EPA also proposed to change the dust-lead clearance levels (DLCL), which are the values used to determine when abatement work can be considered complete, from 10 µg/ft2, 100 µg/ft2 and 400 µg/ft2 for floors, window sills, and window troughs to 3 µg/ft2, 20 µg/ft2, and 25 µg/ft2, respectively. Under this proposal, the DLHS for floors and window sills would not be the same as the DLCL for floors and window sills (i.e., the DLHS and DLCL would be decoupled). Accordingly, dust-lead hazards could remain after an abatement due to the different statutory direction that Congress provided EPA with respect to the DLCL. Additionally, EPA proposed to change the definition of abatement so that the recommendation for action applies when dust-lead loadings are at or above the DLCL, as well as several other amendments, including revising the definition of target housing to conform with the statute. The Agency consulted with State, local and Tribal government officials during the rulemaking, and held a public webinar in summer of 2023.

Statement of Need: On July 9, 2019, EPA promulgated a final rule to lower the DLHS from 40 micrograms of lead per square foot (µg/ft2) to 10 µg/ft2 for floors, and from 250 µg/ft2 to 100 µg/ft2 for window sills. EPA’s dust-lead clearance levels (DLCL) indicate the amount of lead in dust on a surface following the completion of an abatement activity. On January 6, 2021, EPA promulgated a final rule to lower the DLCL from 40 µg/ft2 to 10 µg/ft2 for floors, and from 250 µg/ft2 to 100 µg/ft2 for window sills. The Agency began a reconsideration of the July 2019 and January 2021 final rules in keeping with Executive Order 13990 (addressing the protection of public health and the environment and restoring science to tackle the climate crisis). In addition, on May 14, 2021, the United States Court of Appeals for the Ninth Circuit issued an opinion to remand without vacatur the 2019 DLHS final rule and directed EPA to reconsider the 2019 DLHS rule in conjunction with a reconsideration of the DLCL. EPA proposed its reconsideration rule on August 1, 2023.

Summary of the Legal Basis: EPA proposed this rule under the authority of sections 401, 402, 403, 404, and 406 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), and section 237(c) of Title II of Division K of the Consolidated Appropriations Act, 2017 (Pub. L. 115-31), as well as sections 1004 and 1018 of Title X (42 U.S.C. 4851b, 4852d), as amended by section 237(b) of Title II of Division K of the Consolidated Appropriations Act, 2017.

Alternatives: EPA considered 2 alternative approaches for revising the DLHS and 1 alternative approach for revising the DLCL. One of the alternative approaches for revising the DLHS is a numeric standard based on the probability of exceedance of one or more IQ or BLL metrics as determined by the Agency. The other alternative approach for revising the DLHS would use the background dust-lead levels of housing built in 1978 and beyond as the DLHS (known as “post-1977 background”). For the numeric standard approach, EPA evaluated several numeric DLHS candidates that the Agency believed to be appropriate given the health and exposure metrics of interest. The numeric DLHS candidates were 1/10 μg/ft2 (i.e., 1 μg/ft2 for floors and 10 μg/ft2 for sills), 2/20 μg/ft2, 3/30 μg/ft2, and 5/40 μg/ft2 and those values were compared to the specified BLL and IQ metrics to estimate the probability of exceeding the BLL or IQ targets. The post-1977 background approach would establish the DLHS for target housing and COFs using post-1977 background dust-lead levels, and address disparities in the dust-lead levels that children in target housing may be exposed to and the corresponding disparate health risks. This approach would also align with the focus of Title X on lead hazards in housing constructed before 1978. Using this approach, DLHS would be established at 0.2 μg/ft2 for floors and 0.8 μg/ft2 for window sills as the dust-lead levels that would result in adverse human health effects. The alternative approach EPA considered for revising the DLCL would be to employ the current enforceable levels established by the New York City Department of Health and Mental Hygiene of 5 μg/ft2 for floors, 40 μg/ft2 for window sills and 100 μg/ft2 for window troughs.

Anticipated Costs and Benefits: EPA analyzed the potential incremental impacts associated with this rulemaking. The analysis focused specifically on the subset of target housing and child-occupied facilities affected by this rulemaking. Although the DLHS and DLCL do not compel specific actions under the LBP Activities Rule to address identified LBP hazards, the DLHS and DLCL are directly incorporated by reference into certain requirements mandated by HUD in the housing subject to HUD’s Lead Safe Housing Rule (LSHR). As such, the analysis estimates incremental costs and benefits for two categories of events: (1) where dust-wipe testing occurs to comply with the LSHR and (2) where dust wipe testing occurs in response to blood lead testing that detects a blood lead level (BLL) above state or Federal action levels. This rule would result in reduced exposure to lead, yielding benefits to residents of pre-1978 housing from avoided adverse health effects. For the subset of adverse health effects that were quantified (i.e., the effect of avoided IQ decreases on lifetime earnings as an indicator of improved cognitive function), the estimated monetized and annualized benefits are $1.069 billion to $4.684 billion per year using a 3% discount rate, and $231 million to $1.013 billion per year using a 7% discount rate. These benefits calculations are sensitive to the discount rate used and the range in the estimated number of lead hazard reduction events triggered by children with tested BLLs above state or Federal action levels. With respect to the latter, the wide range is driven largely by uncertainty about the BLLs at which action might be taken, since in many states the action level is currently higher than the Federal blood lead reference value. Additionally, there are unquantified benefits. These additional benefits include avoided adverse health effects in children, including decreased attention-related behavioral problems, decreased cognitive performance, reduced post-natal growth, delayed puberty, and decreased kidney function. These additional unquantified benefits also include avoided adverse health effects in adults, including cardiovascular mortality and impacts on reproductive function and outcomes. This rule is estimated to result in quantified costs of $536 million to $784 million per year using both a 3% and a 7% discount rate. These costs are expected to accrue to landlords, owners and operators of child-occupied facilities, residential remodelers, and abatement firms. Real estate agents and brokers may incur negligible costs related to the target housing definition amendment. The cost calculations are highly sensitive to the range in the estimated number of lead hazard reduction events triggered by children with elevated BLLs. In the events affected by this rule, incremental costs can be incurred for specialized cleaning used to reduce dust-lead loadings (i.e., quantity of lead per unit of surface area) to below the clearance levels. In some instances, floors will also be sealed, overlaid, or replaced, or window sills will be sealed or repainted. Additional costs may result from the retesting of lead dust levels. Because of the lower laboratory reporting limits necessary for testing lead dust levels under this rule, incremental laboratory test costs are likely to increase.

Risks: This rulemaking addresses the risk of adverse health effects associated with dust-lead. exposures in children living in pre-1978 housing and child-occupied facilities, as well as associated potential health effects in this subpopulation.