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 any activity that involve 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.
About the authors
Scott Dismukes is a Pittsburgh-based attorney with the law firm of Eckert Seamans. He has nearly 30 years of experience in environmental litigation and counseling. As co-chair of the firm’s Energy Group and member of the Environmental Group, he provides litigation compliance and environmental business counseling to industrial, municipal, and manufacturing clients under all federal and numerous state environmental laws. Scott also provides non-utility regulatory counsel and defense for a number of energy and energy-related companies. Scott helps companies with strategic business planning as it relates to meeting their environmental obligations. He takes pleasure in working on some of the more complex matters in environmental law and the balance between science and law in his practice. He often works with national science and engineering experts to find creative, effective, and practical solutions to compliance and permitting challenges. Scott also has significant experience in oil and gas pipelines and environmental due diligence in support of mergers and acquisitions and has done extensive work on economic benefit and ability to pay issues. Previously, Scott was an assistant regional counsel for the U.S. Environmental Protection Agency (EPA), Region V, where he conducted enforcement actions pursuant to numerous federal regulatory agencies. He was the region’s primary liaison for Emergency Planning and Community Right-to-Know Act (EPCRA) litigation enforcement and redrafted various penalty policies as a member of EPA’s National Workgroup. Prior to serving the EPA, Scott clerked for the Honorable Justin M. Johnson of the Superior Court of Pennsylvania.
David Rockman is a Pittsburgh-based attorney with the law firm of Eckert Seamans. He helps clients manage environmental compliance and environmental risks. He helps clients understand and meet their legal obligations with respect to federal, state, and local environmental laws, regulations, and permits. David also defends clients facing enforcement actions, represents clients involved in environmental litigation, and provides representation with respect to environmental issues in the purchase and sale of businesses and property. David has experience with all of the major environmental programs governing air, water, waste, and land issues, across a broad spectrum of industries and activities. Environmental compliance requires attention to the broad range of statutory and regulatory requirements, as well negotiation of appropriate permit requirements, and accounting for government guidance and policies. Managing compliance risks involves strategic attention to government agency inspections, information requests, and violation notices. Even the best intentioned and managed companies can find themselves the target of government enforcement or citizen suit litigation. Such situations require an unflinching assessment of the validity of the charges, an evaluation of available defenses, and a strategy that balances litigation, liability, and penalty risks. David believes that an effective environmental compliance approach requires not only interaction with external elements such as government agencies and the public, but also with internal stakeholders at both the management and operational levels to help ensure understanding and appreciation of environmental obligations, opportunities, and consequences. He routinely helps clients manage these issues. Environmental concerns must also be managed in the purchase and sale of properties and businesses. Strategic due diligence, with the context of the deal, is necessary for both buyers and sellers. David has experience advising both small and large businesses in the transactional context. Environmental legal issues often have significant scientific and technical components. David is experienced in retaining and working with environmental engineering consultants, expert witnesses, and auditors, in order to provide the best guidance to clients on the range of issues that they face.
Jessica Rosenblatt is a Pittsburgh-based attorney with the law firm of Eckert Seamans. She helps clients solve challenges arising under federal and state environmental laws. She advises on compliance issues, navigates permitting processes, manages environmental risks in transactions, and helps resolve environmental disputes and enforcement actions. Jessica guides clients through the multitude of regulations governing air and water quality, waste management, chemical spills, land contamination and other environmental liabilities. While in law school, Jessica interned at the Pennsylvania Department of Environmental Protection and the U.S. Department of Interior, as well as with Justice Christine Donohue at the Pennsylvania Supreme Court. She assisted in editing a textbook titled “International Farm Animal, Wildlife and Food Safety Law,” and served as Executive Content Editor of Joule: Duquesne Energy & Environmental Law Journal.
