[Federal Register Volume 74, Number 192 (Tuesday, October 6, 2009)]
[Notices]
[Pages 51274-51276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23929]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OPPT-2009-0665; FRL-8793-3]
Lead Dust Hazard Standards and Definition of Lead-Based Paint;
TSCA Section 21 Petition; Notice of Receipt and Request for Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: This notice announces that EPA has received a petition from
the National Center for Healthy Housing, Alliance for Healthy Homes,
Sierra Club, et al., (petitioners) on August 10, 2009, and requests
comments on issues raised by the petition. The petition requests, under
section 21 of the Toxic Substances Control Act (TSCA) or, in the
alternative, under 5 U.S.C. 553(c), EPA to lower the regulatory lead
dust standards and modify the regulatory definition of lead-based
paint. EPA must either grant or deny a TSCA section 21 petition within
90 days of filing.
DATES: Comments must be received on or before October 21, 2009.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2009-0655, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Mail: Document Control Office (7407M), Office of
Pollution Prevention and Toxics (OPPT), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
Hand Delivery: OPPT Document Control Office (DCO), EPA
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC.
Attention: Docket ID Number EPA-HQ-OPPT-2009-0655. The DCO is open from
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the DCO is (202) 564-8930. Such deliveries are
only accepted during the DCO's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2009-0655. EPA's policy is that all comments received will be included
in the docket without change and may be made available on-line at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the docket index
available at http://www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available
electronically at http://www.regulations.gov, or, if only available in
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number of the EPA/DC Public Reading Room
is (202) 566-1744, and the telephone number for the OPPT Docket is
(202) 566-0280. Docket visitors are required to show photographic
identification, pass through a metal detector, and sign the EPA visitor
log. All visitor bags are processed through an X-ray machine and
subject to search. Visitors will be provided an EPA/DC badge that must
be visible at all times in the building and returned upon departure.
FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Linter, Regulatory Coordinator, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: [email protected].
For technical information contact: Christina Wadlington, National
Program Chemicals Division (7404T), Office Pollution Prevention and
Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (202) 566-1859; e-mail
address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
This action is directed to the public in general. This action may,
however, be of interest to you if you manufacture, process, distribute,
or use lead-based paint. Since other entities may also be interested,
the Agency has not attempted to describe all the specific entities that
may be affected by this action. If you have any questions regarding the
applicability of this action to a particular entity, consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and
then identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments. When submitting comments,
remember to:
i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
[[Page 51275]]
ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use
of profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. TSCA Section 21
A. What Is a TSCA Section 21 Petition?
Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA
to initiate a rulemaking proceeding for the issuance, amendment, or
repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA
section 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the
facts that are claimed to establish the necessity for the action
requested. EPA is required to grant or deny a TSCA section 21 petition
within 90 days of its filing. If EPA grants the petition, the Agency
must promptly commence an appropriate proceeding. If EPA denies the
petition, the Agency must publish its reasons for the denial in the
Federal Register. A petitioner may commence a civil action in a U.S.
district court to compel initiation of the requested rulemaking
proceeding within 60 days of either a denial, or if EPA fails to grant
or deny a TSCA section 21 petition, the expiration of the 90-day
period.
B. What Criteria Apply to a Decision on a TSCA Section 21 Petition?
The scope of a TSCA section 21 petition is limited to the issuance,
amendment, or repeal of a rule under TSCA section 4, 6, or 8 or an
order under TSCA section 5(e) or 6(b)(2). Section 21(b)(1) of TSCA
requires that the petition ``set forth the facts which it is claimed
establish that it is necessary'' to issue the rule or order requested.
15 U.S.C. 2620(b)(1). Thus, TSCA section 21 implicitly incorporates the
statutory standards that apply to the requested actions. In addition,
TSCA section 21 establishes standards a court must use to decide
whether to order EPA to initiate rulemaking in the event of a lawsuit
filed by the petitioner after denial of a TSCA section 21 petition. 15
U.S.C. 2620(b)(4)(B). Accordingly, EPA will refer to the standards in
TSCA section 21 and in the provisions under which actions have been
requested to evaluate this petition.
III. Summary of TSCA Section 21 Petition Received
A. What Action was Requested?
On August 10, 2009, EPA received a petition from the National
Center for Healthy Housing, Alliance for Healthy Homes, Sierra Club, et
al., petitioning EPA to amend regulations promulgated under TSCA
sections 401 and 403. Specifically, the petitioners are requesting that
EPA:
``1. Lower dust lead hazard standards at 40 CFR 745.65(b), 40
CFR 745.227(e)(8)(viii), and 40 CFR 745.227(h)(3)(i) from 40
micrograms of lead per square foot of surface area ([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. 2. Modify the definition of
lead-based paint in 40 CFR 745.103 and 745.223 for previously
applied paint or other surface coatings in housing, child-occupied
facilities, public building and commercial buildings to reduce the
lead levels from 0.5 percent by weight (5,000 parts per million
(ppm)) to 0.06 percent by weight (600 ppm) with a corresponding
reduction in the 1.0 milligram per square centimeter standard.''
(Ref. 1) Petition at 2.
B. What Support Do the Petitioners Offer?
The petitioners provide results of analysis derived from studies
that have become available since the current dust lead standards were
promulgated in 2001. Studies referenced by petitioners, include: Dixon
et al. (2009) (Ref. 2), National Center for Healthy Housing (rev. 2006)
(Ref. 3), Wilson (2008) (Ref. 4), and the Cincinnati Children's
Hospital Medical Center's ``HOME Study.''
Citing their analysis of data from the National Health and
Nutrition Examination Survey (NHANES) from 1999-2004 (Refs. 2 and 4),
the petitioners conclude that:
1. ``4.6% of children with an average age of 33 months living in
pre-1978 homes would have a blood lead level of 10 [mu]g/[deciliter]dL
or greater when their floor dust lead loading was 12 [mu]g/ft\2\.''
2. ``At a floor dust lead loading of 12 [mu]g/ft\2\, there is 95%
confidence that no more than 7.9% of children would have a blood lead
level of 10 [mu]g/dL or greater.''
3. ``5.1% of children would have a blood lead level of 10 [mu]g/dL
or greater when their window sill dust lead loading was 100 [mu]g/
ft\2\.'' Based on this information the petitioners conclude that
``[u]sing EPA's criteria of protecting 95% of children from an elevated
blood lead level (currently defined as 10 [mu]g/dL or greater), dust
standards of 10 [mu]g/ft\2\ for floors and 100 [mu]g/ft\2\ for window
sills should be adopted.'' Petition at 3.
From their own ``Study of HUD's Risk Assessment Methodology in
Three U.S. Communities'' (Ref .3), the petitioners assert ``that
children living in homes with floor dust lead levels under 20 [mu]g/
ft\2\ had proportionally fewer elevated blood lead levels than children
living in homes where the floor dust lead loading exceeded 20 [mu]g/
ft\2\.'' The petitioners further assert, based on on-going analysis of
the ``HOME Study,'' that ``lower dust standards are achievable.''
Petition at 4.
The petitioners also contend that ``the economic consequences of a
rule based on the standards recommended in this petition will be less
than EPA originally estimated when it adopted the current standards.''
They provide that in the January 5, 2001 final rule (Ref. 5), EPA
estimated that 22 million homes would have lead dust hazards based on a
standard of 10 [mu]g/ft\2\, and assert that the their ``review of the
Six-Year Follow-Up Study and the HOME Study demonstrated that current
lead hazard control practices are adequate to reduce dust lead below
the levels recommended in the petition.'' The petitioners also assert
that the ``NHANES data suggest that less than 15% of pre-1978 homes-9.8
million homes-would be classified as having a dust lead hazard.''
Petition at 5.
When reviewing the regulatory definition of lead-based paint at 40
CFR 745.103 and 745.223, the petitioners note that EPA simply adopted
that statutory standard: Lead-based paint means paint or other surface
coatings that contain lead equal to or in excess of 1.0 mg/cm\2\ or
more than 0.5% by weight. Petitioners further note that HUD used the
same definition in its Lead-Safe Housing Rule.
To support their request that EPA lower the lead level in the
definition of lead-based paint, petitioners explain that ``under the
current standards, paint that contains less than 5,000 ppm of lead
would not be considered lead-based paint. As a result, when a lead
inspector or lead risk assessor documents levels of 4,500 ppm of lead
in the paint, the buyer or tenant would be told that lead-based paint
is not present. The buyer or tenant would be unaware of the potential
dangers of disturbing the paint.'' Petition at 6.
The petitioners estimate that ``the economic consequences of this
change
[[Page 51276]]
in the definition of lead-based paint would primarily impact those
buildings that already have been tested for the presence of lead-based
paint by a certified lead risk assessor or lead inspector and found to
have levels of lead in the paint between 600 ppm and 5,000 ppm (and the
equivalent in mg/cm\2\).'' Petition at 7.
IV. EPA Seeks Public Comment
Under TSCA section 21, EPA must either grant or deny a petition
within 90 days. EPA is providing this opportunity for the public to
comment on, or provide any additional information relevant to, the
issues identified in the petition. In order for the Agency to consider
such comments within the 90-day petition review period, EPA must
receive the comments on or before October 21, 2009 (see ADDRESSES).
In assessing the usability of any data or information that may be
submitted, EPA plans to follow the guidelines in EPA's ``A Summary of
General Assessment Factors for Evaluating the Quality of Scientific and
Technical Information'' (EPA 100B-03/001), referred to as the
``Assessment Factors Document.'' The ``Assessment Factors Document''
was published in the Federal Register issue of July 1, 2003 (Ref. 6).
V. References
1. National Center for Healthy Housing, Alliance for Healthy Homes
and Sierra Club. Letter from Rebecca Morley, National Center for
Healthy Housing; Patrick MacRoy, Alliance for Healthy Homes; and Tom
Neltner, Sierra Club to Administrator Jackson, Environmental Protection
Agency. Re: Citizen Petition to EPA Regarding the Paint and Dust Lead
Standards. August 10, 2009.
2. Dixon, S.L.; Gaitens, J.M.; Jacobs, D.E., et al. (2009) Exposure
of U.S. children to residential dust lead, 1999-2004: II: The
contribution of lead-contaminated dust to children's blood lead levels.
Environmental Health Perspectives. 117(3): 468-474.
3. National Center for Healthy Housing (rev. 2006) Study of HUDs
Risk Assessment Methodology in Three U.S. Communities: Final Report,
Columbia, MD (accessed 5-13-2009: http://www.nchh.org/LinkClick.aspx?fileticket=HZUenslvU/0=&tabid=217).
4. Wilson, Jonathan. (2008) Should the EPA Lead Dust Standards be
Lowered? (accessed 5-8-2009: http://www.healthyhomestraining.org/Research/Translational_Research_11-17_PbDust_Standard_r2.1.pdf).
5. EPA. Lead; Identification of Dangerous Levels of Lead; Final
Rule. Federal Register (66 FR 1206, January 5, 2001) (FRL-6763-5).
Available on-line at: http://www.gpoaccess.gov/fr/index.html.
6. EPA. A Summary of General Assessment Factors for Evaluating the
Quality of Scientific and Technical Information; Notice. Federal
Register (68 FR 39086, July 1, 2003) (FRL-7520-2). Available on-line at
http://www.epa.gov/osa/spc/assess.htm.
List of Subjects
Environmental protection, Lead, Lead-based paint, Lead dust hazard
standards.
Dated: September 29, 2009.
James Jones,
Acting Assistant Administrator, Office of Prevention, Pesticides and
Toxic Substances.
[FR Doc. E9-23929 Filed 10-5-09; 8:45 am]
BILLING CODE 6560-50-S