EPA Imposes More Stringent Lead Paint Dust Requirements

In response to a decision by the U.S. Court of Appeals for the Ninth Circuit finding that the U.S. Environmental Protection Agency's (EPA) updates to its lead paint hazard standards were deficient because they improperly took into account factors other than health, EPA announced a rule that strengthens the prior requirements for identifying and cleaning up lead paint dust in pre-1978 homes and childcare facilities under the Toxic Substances Control Act (TSCA). The rule decouples the standards for dust level reportable levels and dust-lead action levels. Under EPA's new rule, any level of lead is considered hazardous, and the permissible amount of lead dust that may be detected on floors, window sills and window troughs after a lead paint abatement is drastically decreased.

During the rulemaking process, various commenters in the public heath arena applauded these new, more stringent standards as important to better protecting children from lead exposure. At the same time, others in the rental industry, and those actively working as lead risk assessors and as abatement designers, offered commentary in opposition to the rule, expressing concern that lower permissible dust levels will be increasingly difficult to achieve, even by experienced lead abatement contractors, and that the resulting increased cost of such work will further reduce the incentive for homeowners and landlords for conducting such abatement work in the first place.

Notably, while these new standards will have a significant impact on lead-based paint (LBP) abatement work in target housing and may result in an increasing number of LBP hazard disclosures under EPA's LBP Disclosure Rule, these new standards will not impact work performed under EPA's Renovation, Repair, and Painting (RRP) Rule. The latter rule does not require dust-lead sampling prior to or at the conclusion of a renovation and will not be affected by a change to the lead reporting or action levels.

In addition to these reductions to acceptable dust levels during a lead risk assessment or abatement, the rulemaking will result in various other technical and conforming changes, including, among others:

• revising the definition of a "child" across various LBP regulations consistent with statutory changes adopted by Congress in 2017, which clarified that a "child" was a person "under age 6" rather than "6 years of age and under"
• expanding the definition of "target housing" to include a zero-bedroom dwelling where a child resides
• making a single word change to the regulation at 40 CFR 745.113(b)(1) to add the word "known" to the Disclosure Rule Warning Statement, consistent with the underlying statutory text

Dangers of Lead Exposure

Exposure to lead can result in serious health complications, including increased risk of cardiovascular disease, increased blood pressure, heart disease, decreased kidney function and cancer in adults. Children are particularly vulnerable to lead exposure, as early exposure can result in behavioral problems, lower IQ, slowed growth and brain damage. According to the Centers for Disease Control and Prevention, there is no known antidote to lead exposure. As described by EPA in its Strategy to Reduce Lead Exposures and Disparities in U.S. Communities, communities of color and lower-income communities are historically at greater risk of lead exposure due to factors such as older housing stock with deteriorated/unabated LBP, concentrated industrial sites and systemic issues such as redlining, which led to segregated housing in less desirable areas with potential environmental hazards. In December 2021, Vice President Kamala Harris announced the Biden-Harris Administration's Lead Pipe and Paint Action Plan, which places particular emphasis on addressing the significant disparities in lead exposure along racial, ethnic and socioeconomic lines.

Background

Due to LBP's durability, its use was widespread in the U.S. throughout the 1800s and part of the 1900s. The first reported instance of U.S. medical authorities diagnosing childhood lead poisoning was in 1887, and child lead poisoning was linked to LBP in 1904. However, LBP use in residential homes continued until it was formally banned in 1978.

Baltimore was the first U.S. city to ban the use of lead pigment in interior paint in housing in 1951. Shortly thereafter, public health officials and organizations began adopting voluntary national standards to prohibit the use of lead pigments in interior residential paints. In 1971, Congress passed the Lead-Based Paint Poisoning Prevention Act, which directed the U.S. Department of Housing and Urban Development (HUD) to regulate, and authorize funding for, the detection and control of LBP in housing that receives federal assistance.

Though the U.S. Consumer Product Safety Commission banned all use of LBP in homes in the U.S. in 1978, this ban did not provide for the abatement of already-existing LBP. To this day, all housing built in or prior to 1978 (known as "Target Housing") is presumed to contain LBP unless it has been abated and certified lead-free by qualified LBP contractors. It is estimated that 31 million pre-1978 houses in the U.S. may still contain LBP and that 3.8 million of those homes likely have one or more children under the age of 6 living there. Though the likelihood of exposure is low to none if the LBP is undisturbed, in good condition and/or encapsulated, elevated blood lead levels in children can be caused by lead-contaminated dust when LBP is disturbed through renovation or demolition without appropriate risk reduction protocols in place.

Regulation of LBP Dust Exposure

TSCA was enacted by Congress in 1976. The Lead-Based Paint Hazard Reduction Act of 1992 amended TSCA to include Title IV, "Lead Exposure Reduction," which requires EPA to identify sources of lead contamination and establish state programs to monitor and reduce lead exposures. EPA first established dust-lead reportable levels (previously referred to as the dust-lead hazard standards) and dust-lead action levels (previously referred to as the dust-lead clearance levels) in 2002 under Sections 401, 402 and 403 of TSCA:

• TSCA Section 401 defines LBP hazards, lead-contaminated dust and lead-contaminated soil.
• TSCA Section 402 sets requirements for LBP activities in Target Housing and child-occupied facilities.
• TSCA Section 403 sets hazard standards for lead paint, dust and soil. Compliance under such provisions is mandated for voluntary and mandatory lead abatement projects.

The LBP hazard standards that EPA set in 2002 remained the same until they were challenged in 2017.

Ninth Circuit Litigation

In 2017, the Ninth Circuit issued a Writ of Mandamus requested by environmental groups seeking to compel EPA to update the LBP hazard standards. The panel held that EPA was under a duty under TSCA and the Lead-Based Paint Hazard Reduction Act of 1992 to update LBP and dust-lead hazard standards.

In response, EPA finalized a rule in 2019 that lowered the dust-lead reportable levels on floors and sills. In setting a reportable level greater than zero, EPA argued that setting standards based solely on science (which indicates there is no safe amount of lead in the body) was not feasible. In 2021, EPA followed up by finalizing a rule that set more stringent dust-lead action levels.

Community groups challenged EPA's 2019 rule and, in 2021, the Ninth Circuit found in favor of the community groups and remanded the decision back to the agency for reconsideration. While acknowledging that EPA faced limitations, the Ninth Circuit concluded that the agency's task was to consider health effects only when setting dust-lead reportable levels. A Community Voice v. United States Environmental Protection Agency, No. 19-71930 (9th Cir. 2021).

The 2024 Rule

On Oct. 24, 2024, EPA responded to the Ninth Circuit decision by finalizing more stringent requirements for identifying and cleaning up lead paint dust in pre-1978 homes and childcare facilities (the 2024 Rule). Previously, EPA had set the same standard for the level of lead found in dust from old paint that has to be reported (the dust-lead reportable levels or DLRL) and the amount of lead that can remain in dust on floors, window sills and window troughs after a lead paint abatement occurs (the dust-lead action levels or DLAL). EPA's 2024 Rule decouples the two standards.

Most notably under the 2024 Rule, and as illustrated in the diagram below, the level of dust considered hazardous is reduced to "any reportable level" identified by an EPA-recognized laboratory. Thus, the basis for risk assessors to determine whether dust-level hazards are present, and the amount of lead that can remain in dust on floors, window sills and window troughs after a lead paint abatement, are drastically reduced from the 2019 and 2021 rules.

Source: EPA

In practice, this means that any detection of lead identified by an EPA-recognized laboratory in dust wipe samples taken during a risk assessment or lead hazard screen will lead to a determination that lead-dust hazards are present, which would likely be captured in a report needing to be disclosed to residents under EPA's LBP disclosure rules. Additionally, the 2024 Rule means that there is no universal DLRL level, as EPA-recognized laboratories have varying technological capacities to detect the presence of lead.

Moreover, post-abatement sampling under the 2024 Rule will have to yield lower detections. Post-abatement cleaning must be very thorough, as any detection of lead above the more stringent action levels will require additional cleanup and retesting, which could result in abatement projects taking longer to complete and even cause delays in turnover. Housing providers should ensure that LBP contractors performing abatement in their units are fully informed regarding the 2024 Rule updates and the need for heightened cleaning. Additionally, abatement reports must state that LBP hazards may remain if there is any detection of lead in post-abatement sampling, even if the levels detected were below the action levels.

The 2024 Rule will become effective 60 days after publication in the Federal Register. EPA will host a public webinar to provide an overview of the rule on Dec. 5, 2024, at 2 p.m. ET.

How Holland & Knight Can Help

Housing providers and other property owners should work closely with environmental counsel to ensure compliance with EPA's new lead hazard standards and work practices and understand how they relate to EPA's lead disclosure and RRP Rules. Holland & Knight has an extensive group of attorneys with experience in addressing the presence of LBP in residential housing and TSCA enforcement who can assist housing providers and other property owners in implementing compliant abatement processes. For more information or questions, please contact the authors of this client alert.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.