United States Environmental Protection Agency Seeks to Tighten Dust-Lead Clearance Levels
September 8, 2020
For the first time in nearly two decades, the United States Environmental Protection Agency (EPA) is proposing a rule that would decrease the amount of lead that can remain in dust on floors and window sills after lead removal activities. The rule will require contractors, schools, daycares, property owners, lessors of residential buildings, lead abatement professionals, and others who conduct lead-based paint activities to achieve the more stringent dust-lead clearance levels prior to building re-occupancy. The change is intended to reduce childhood lead exposure and would apply to certain residential dwellings and facilities occupied by children.
The proposed rule would reduce dust-lead clearance levels (DLCL) from 40 micrograms per square foot (μg/ft2) to 10 μg/ft2 for floors, and from 250 μg/ft2 to 100 μg/ft2 for window sills. EPA has not proposed a change in DLCL for window troughs.
Clearance levels are defined as the maximum amount of lead permitted in dust on a surface following completion of an abatement activity. DLCL are used to determine whether abated buildings are safe and suitable for re-occupancy. The proposed rule clarifies that post-abatement dust-lead levels must be below, not equal to, the revised clearance levels.
Lead exposure affects individuals of all ages but is particularly harmful to young children. Lead in dust is a significant contributor to blood lead levels in children, especially those who live in homes built before 1978 when the federal government banned consumer uses of lead in paint.
EPA established the DLCL and Dust Lead Hazard Standards (DLHS) under the Toxic Substances Control Act (TSCA) in 2001. While DLCL apply after an abatement is conducted, DLHS are limits that provide the basis for inspectors and risk assessors to determine whether lead-based paint (LBP) hazards are present prior to a renovation or abatement activity. In 2019, EPA revised the DLHS to 10 μg/ft2 for floors and 100 μg/ft2 for window sills but declined to extend the change to DLCL. The proposed rule would update DLCL to be consistent with the DLHS.
EPA is proposing the rule under Sections 401 and 402 of TSCA. The rule applies to most pre-1978 housing and non-residential (i.e., public or commercial) properties where children under the age of six spend a significant amount of time, such as child care centers, preschool and kindergarten classrooms, and certain church programs. The rule does not generally apply to zero-bedroom dwellings (where the living area is not separated from the sleeping area) like studios and lofts, nor to housing for the elderly or persons with disabilities. Individuals who perform LBP activities in residences they own and reside in are exempt from the rule unless the residence is also occupied by a person other than the owner or the owner’s immediate family while the abatement is being performed, or a child residing in the building has been identified as having an elevated blood lead level.
While the rule does not require property owners to evaluate their properties or perform control activities, it would be triggered upon someone performing an abatement. “Abatement” is defined as “measures designed to permanently eliminate lead-based paint hazards.” It includes the removal and containment of LBP, as well as the preparation, cleanup, disposal, and associated post-abatement clearance testing activities.
DLCL apply when treating lead paint hazards of two or more square feet per room, twenty or more square feet on the exterior of a building, or greater than ten percent of the total surface area of an interior or exterior component with a small surface area. They also apply to any activity that involves window replacement or demolition. Maintenance and repair activities intended to repair, restore, or remodel a dwelling rather than permanently eliminate LBP hazards are not considered an abatement but are still regulated under the DLHS. The proposed rule does not retroactively apply to those who have previously performed post-abatement clearance testing using the original 2001 DLCL.
The proposed rule can be found here.
Click here to view a downloadable PDF of the legal update.
This Environmental Alert is intended to keep readers current on developments in the law. It is not intended to be legal advice. If you have any questions, please contact Scott Dismukes at 412.566.1998 or sdismukes@eckertseamans.com, David Rockman at 412.566.1999 or drockman@eckertseamans.com, or any attorney at Eckert Seamans with whom you have been working.
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