Regulatory Policy

EPA Dust-Up: A Recent ‘Midnight Regulation’ Needs Work

(Ting Shen/Reuters)
A last-minute EPA rule from the Trump administration warrants a closer look.

In the final weeks of Trump’s presidency, his administration issued several “midnight regulations,” including a new rule from the Environmental Protection Agency (EPA) tightening the clearance levels for the amount of lead allowed to remain in dust on floors and windowsills in buildings after certain lead-based paint activities. While it seems reasonable, the new rule imposes costs on owners of older residential properties beyond what is necessary to meet the EPA’s dust-lead hazard standard, adding to pressures to replace older low-cost housing. It should be reconsidered. (Disclosure: The author owns two older homes, of which one is a rental property.)

The EPA’s new rule cuts the levels of dust lead that are permissible on floors and on windowsills following abatement activities by 60 percent. Individual surfaces found to have dust-lead levels at or above the new clearance levels must be recleaned, resampled, and subjected to retesting.

Two distinct issues arise with these new standards. First, they are more stringent than necessary to ensure that homeowners comply with the EPA’s already-tightened 2019 dust-lead hazard standards (DLHS). The 2019 regulation defines hazards to be present if the weighted average levels of lead for all surface samples of floors or interior windowsills exceed specific thresholds. Under the EPA midnight regulation, if average dust-lead levels are below those thresholds, but specific individual surfaces exceed it, then each such surface must be recleaned, resampled, and subjected to additional testing.

This surface-by-surface approach to dust-lead clearance is not new. But the EPA’s newly stringent clearance standards make it more problematic by requiring recleaning, resampling, and retesting of housing that otherwise complies with the EPA’s lead hazard standard.

Second, the EPA’s rule allows no tradeoffs between dust-lead levels on floors and windowsills in a given home. For example, if the average windowsill dust-lead level were dramatically below the threshold, could the dust-lead level on the floor be a tad above the cap? Not under EPA regulations. This scenario would require additional cleaning, sample collection, and testing under the new clearance standards. But the risks of elevated blood lead would be lower than if average dust-lead levels were right at the maximum levels.

The EPA’s earlier actions, such as its 2019 dust-lead hazard rule, also neglected to recognize such tradeoffs. Failure to recognize them is problematic now, however, because the latest dust-lead clearance regulation implements the dust hazard regulation and is intended to demonstrate that attaining the clearance standards assures compliance with dust-lead hazard standards.

These are not petty issues. The additional cleanup and testing of individual surfaces is costly, about $262 for single-family homes. The full costs also include possible delays in occupancy while surfaces are retested. The EPA estimates that nearly 7 percent of the housing subject to clearance standards under the new rule will have to go through a second dust-lead check.

The total impact of the EPA’s rule may include indirect effects from the incorporation of the new standards into other federal programs. The Department of Housing and Urban Development (HUD), for example, has standards for clearance of residential housing and child-occupied facilities that it supports. But those standards state that “clearance examinations following abatement of lead-based paint or lead-based paint hazards shall be performed in accordance with [EPA regulations]” that include the EPA’s newly issued dust-lead clearance standards.

EPA’s surface-by-surface approach, which neglects tradeoffs between lead on floors and lead on windowsills, is echoed in the programs of different states, some of which have requirements more stringent than the EPA’s in various respects. Maryland requires collection and testing of multiple dust-lead samples as a condition of occupancy of older housing units by new tenants or owners. Massachusetts requires such inspections for lead in rental homes where children under six are present. New York City has dust-lead clearance levels for re-occupancy that are more stringent than those of ­­­­­the EPA — 50 percent lower for interior window sills — but also follows the EPA’s surface-by-surface approach to clearance.

This EPA action illustrates the importance of scrutinizing “midnight regulations” and highlights the need for review of existing regulations by the incoming Biden administration. The Congressional Review Act offers a fast-track procedure for Congress to overturn new regulations, but it is difficult to imagine this Congress overturning an overzealous regulation. For this rule, however, Congress and the Biden administration might well ask whether it should not be modified or delayed until the EPA can identify a truly cost-effective and risk-based approach that avoids putting an additional regulatory burden on property owners beyond that required by the EPA’s 2019 DLHS.

Randall Lutter, Ph.D., is a senior fellow at the Manhattan Institute, where his research focuses on pharmaceutical markets and policy, medical innovation, and regulation.

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