Lead-Based Paint Regulations
Federal laws regulate exposure to potentially toxic levels of lead in air, water, soil and consumer products including paint. Under the Residential Lead-Based Paint Hazard Reduction Act, known as “Title X”, the U.S. Environmental Protection Agency (EPA) and the Department of Housing and Urban Development (HUD) regulate lead-based paint in housing constructed prior to 1978.
EPA and HUD have in place a number of lead-based paint regulations that cover a wide range of activities, from disclosure to worker training, including specific requirements for properties that receive federal subsidies. The latest regulations were implemented in 2010 and govern Renovation, Repair and Painting (RRP) in pre-1978 constructed market-rate properties; they are similar to requirements that have applied to federally assisted properties under the Lead Safe Housing Act (24 CFR 35) since 1999.
As a result of these regulations, blood lead levels (BLL) have declined more than 90% over the past 20 years, leading one former Surgeon General to declare it a "public health success story." According to a recent survey by the Centers for Disease Control and Prevention (CDC), BLLs generally declined in all age groups from 1999-2008, with the largest decrease (32%) seen among children one to five years old. Since Title X was enacted, lead exposure has gone from a national problem to a limited problem in certain geographic areas or Census tracts. The CDC acknowledges such in as much as they have revised their screening guidelines to recommend universal screening only in areas with 27% of housing built before 1950 and in populations in which the percentage of one- and two-year-olds with elevated BLLs is 12%.
Despite these significant improvements, EPA is expanding already stringent regulations to further reduce permissible lead levels in air and drinking water, lower the permissible concentration of lead in coated surfaces and reduce the threshold level for lead in dust and soil. A petition filed by a coalition of advocacy groups has specifically asked that EPA lower dust lead hazard standards found in three federal regulations1 from 40 micrograms of lead per square foot of surface area (µg/ft2) to 10 µg/ft2 or less for floors and from 250 µg/ft2 for window sills to 100 µg /ft2 or less. They also want EPA to modify the definition of lead-based paint, which triggers federal compliance obligations, from paint with lead levels from 0.5 percent by weight (5,000 parts per million (ppm)) to 0.06 percent by weight (600 ppm).
EPA has asserted that these changes are warranted since “even at low levels, exposure to lead can impair a child’s IQ, learning capabilities and memory.” The Agency has convened a Science Advisory Board review panel to provide advice on the methodology it will use in analyzing the lead hazard standard to issue a proposed rule in 2012.
In 2010, EPA issued an advanced notice of proposed rulemaking (ANPR) to extend lead-safe work practice requirements to repairs on the exterior of public and commercial buildings under the theory that lead-burdened dust from these projects will pose a threat to children’s health. A rule is set to be issued by June 15, 2012; however, unlike the regulations that already apply to pre-1978 residential properties and child-occupied facilities, there is no reference to the date of construction (i.e., pre-1978). The ANPR raises questions as to whether apartment properties with more than 10 units might also be included under this new regulation. Doing so could expand the universe of properties required to comply to post-1978 properties.
The apartment industry has worked with Congress and federal agencies charged with implementing Title X since the law was enacted in 1993. However, we strongly oppose efforts to redefine the hazard thresholds and extend the scope of Title X. EPA has failed to demonstrate a public health reason for this change, which would impose a severe and disproportionate economic burden on millions of pre-1978 apartment homes and likely extend costly regulations to properties built after 1978.
We also oppose EPA's efforts to expand the buildings subject to lead paint regulations. Data from the CDC do not support EPA’s contention that a “one-size-fits-all” national policy is the most effective way to target those census tracks where the issue of childhood lead exposure is still unresolved. We respectfully ask Congress to utilize its oversight authority of the EPA Lead Program with respect to the Agency’s compliance with Congressional intent under Title X and other statutes that govern the Agency’s rulemaking efforts.
EPA is expected to issue a proposed regulation to redefine hazard standards in paint, soil and dust and lower the threshold that triggers compliance requirements and a proposed rule to expand the scope of the RRP rule to include repairs to the exterior of public and commercial properties later this year. In both cases, EPA is required to have a final rule by late 2012.
In addition, EPA has significantly underestimated the costs of complying with the 2010 RRP rule. EPA’s original compliance estimates relied heavily on the availability of low-cost and accurate field test kits that workers could use to determine whether a specific repair/renovation job would trigger the rule. The Agency anticipated such test kits would be available by September 30, 2010, but they have yet to be developed. The kits that are currently available have a high false positive rate; that is, they wrongly detect lead levels below the legal threshold and result in more jobs being unnecessarily subjected to the costs of the RRP rule. Despite promises to the contrary, the Agency has not been able to certify any widely available accurate test kits.
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Last Updated: February 2012
1 The affected regulations are 40 CFR 745.65(b), 40 CFR 745.227(e)(8)(viii) and 40 CFR 745.227(h)(3)(i).