Unless EPA Shows Hazard and Causal Linkage to Renovation Work, Additional Rules Unwarranted
AGC and its partners in the “Commercial Properties Coalition” recently filed a 61-page response to the U.S. Environmental Protection Agency’s (EPA) latest request for data and information on renovation and remodeling activities in public and commercial buildings and potential lead-based paint hazards therein. EPA plans to use this to implement future regulatory determinations. By July 1, 2015, EPA must decide whether or not it will propose new nationwide certification, training and lead-safe work practice requirements, all of which would apply to contractors who work in public and commercial buildings.
EPA is currently developing a proposal to address purported lead-based paint hazards that may be created by renovations on the exterior or in the interiors of public and commercial buildings. In accordance with the terms of its September 2012 litigation agreement with environmental and health advocacy organizations, the agency reached out to the public for information and provided advance notice of a public meeting — scheduled for this summer — to discuss the issues under review for this rulemaking. See 77 Fed. Reg. 76,996 (Dec. 31, 2012). After considering the information it gathers and subsequent related analyses, EPA has agreed to either sign a proposed rule by July 1, 2015, covering renovation, repair, and painting activities in public and commercial buildings, or determine that these activities do not create lead-based paint hazards. If EPA issues a proposed rule, the agency has until Dec. 31, 2016, to publish a final rule, per the settlement agreement. The coalition’s letter questions the lack of lead-paint data for public and commercial buildings, maintaining that EPA has not met its burden of showing that renovation and remodeling activities therein create a lead-paint based “hazard” under the Toxic Substances Control Act.
In April 2008, EPA issued final Lead Renovation, Repair, and Painting (LRRP) rules (click here for AGC’s fact sheet) regulating contractors who perform renovations, repairs and/or painting projects in most pre-1978 “target housing” and “child-occupied facilities” that have, or are assumed to have, lead-based paint. That program took full effect in April 2010. Around the same time, EPA signaled its regulatory interest in expanding the current LRRP program to cover work in public and commercial buildings. See Docket # EPA-HQ-OPPT-2010-0173. Three years later, EPA is yet to determine whether any dangerous levels of lead exist in public or commercial buildings — or whether any lead-based paint hazards are caused by renovation, repair or painting (RRP) activities in such structures — all stated within the coalition’s letter. EPA’s rulemaking efforts are underway even despite the fact that an EPA Science Advisory Board (SAB) panel has recognized that there is “insufficient data concerning lead dust exposures in commercial or public buildings to support a reliable standard.”
AGC’s April 1 coalition letter was signed by 22 trade organizations whose members are involved in almost every facet of commercial and multifamily property development, ownership, management, contracting, and building product supply — including the major national real estate organizations, along with the U.S. Chamber of Commerce and National Federation of Independent Business (NFIB).
Consistent with legal, technical, economic and process-related concerns raised in prior letters submitted to EPA in July 2010 and December 2010, AGC argued the following five key points in its April 1 coalition response to EPA’s recent request for information:
- Before EPA can propose regulating renovation, repair and painting (RRP) activities in public and commercial buildings, it must first develop a rule, under Section 403 of the Toxic Substances Control Act (TSCA), identifying whether “dangerous levels of lead” even exist in such buildings. Thus far, the only Section 403 hazard rule EPA has issued covers residential housing, and this rule explicitly states: “[I]t is important to emphasize that this rule only applies to pre-1978 target housing and certain child-occupied facilities, and that these standards were not intended to identify potential hazards in other settings.” Notably, it took EPA more than seven years (after publishing a final Section 403 hazard rule for “target housing”) to decide how to regulate renovation activities in residences. “A similar deliberative process, within a comparable sequence and time frame for agency action, should be conducted” the coalition wrote in its April 1 letter.
- Given the fundamentally different uses, occupancies, and renovation work practices that attend to commercial buildings versus residences, EPA cannot simply extrapolate from data gathered in residential settings to justify a regulatory program governing commercial or public buildings. The coalition brought EPA to task for a recent letter it sent to several senators, attempting to identify eight studies that the agency held out as relevant to lead-based paint issues in public and commercial buildings. The only non-residential buildings considered by EPA in these studies were a single school built in 1967 and a one-story business over 150 years old. As the coalition wrote, such “infinitesimal evidence … cannot rationally support the weight of a Public & Commercial LRRP Program — which could cover all such structures in the U.S., regardless of age.” In fact, two of the studies that EPA cited to the senators’ states, on their face, that they do not contain useful data of lead-based paint “exposures encountered in public or commercial buildings.”
- EPA should avoid treating commercial buildings as a “generic, monolithic grouping.” Instead, it should cultivate “a better understanding of our heterogeneous industry, and a deeper appreciation of the diverse assets that comprise ‘commercial buildings’” — recognizing that the “commercial buildings sector is not dominated by structures of a single type, use, activity, or occupancy.”
- EPA should coordinate closely with other federal agencies to study the “massive stock of federal buildings” for any lead-based paint hazards; identify actual renovation projects in these structures; and assess the effectiveness of associated work practices. In effect, the coalition said, the hundreds of millions of square feet in the U.S. government’s real estate portfolio could serve as a “laboratory” for developing any future Public & Commercial LRRP rule and assuring “a sound, scientific, and fact-based record.” Earlier this year, AGC hosted representatives from the Office of the Secretary of Defense, Naval Facilities Engineering Command, General Services Administration and Department of Veterans Affairs to participate in a roundtable discussion with industry groups on EPA’s rulemaking effort related to renovation and remodeling activities in public and commercial buildings and potential lead-based paint hazards therein.
- In accordance with previous White House directives aimed at streamlining federal regulations and avoiding duplication of efforts, EPA should examine whether existing regulatory programs and industry practices already address any potential lead-based paint hazards and renovation work practices in public and commercial buildings. AGC created a table for the coalition’s comments that shows the existing federal programs (OSHA Lead in Construction Standard at 29 CFR Part 1926.62 and HUD Lead Safe Housing Rule at 24 CFR Part 35) that are designed to prevent exposure to lead hazards for workers and building occupants, as well as protect the general environment from releases of toxic substances, including lead, that may be associated with certain construction activities. “EPA must identify and assess existing authorities already ‘on the books’ (albeit some within the jurisdiction of its sister agencies) that clearly and adequately addresses lead-based paint hazards before adopting an expansive new RRP program for public and commercial buildings,” the coalition’s comments state.
Notably, on March 28, Senators Angus King (I-Maine), Joe Manchin (D-W.Va.), and Mark Begich (D-Alaska) urged the congressionally-authorized National Institute of Building Sciences (NIBS) to participate in EPA’s comment and public hearing process on this issue. “While we all support robust protections from the dangers of lead, we believe that NIBS is ideally suited to provide critical information to assist in developing better-targeted and more cost-effective regulation,” the senators wrote. NIBS subsequently informed EPA it would participate in the public hearing scheduled for June 26, noting in an April 1 letter that “science-based information applicable to the presence, occupant exposure, and the mitigation of lead-based paint in commercial and public buildings is woefully inadequate.”
In early March, recognizing the lack of data in this area, Senate Environment Committee member James Inhofe (R-Okla.) and other GOP senators reintroduced a bill (S. 484) from last Congress requiring EPA to study lead-based paint hazards in residential and commercial buildings — and submit its findings to Congress for review — before proceeding with any proposed lead paint or dust regulations covering commercial real estate.
A separate group of senators — Inhofe (R-Okla.), Vitter (R-La.), Fischer (R-Neb.), Crapo (R-Idaho) — wrote to EPA in February expressing concern about the process by which the agency is pursuing potential regulations in this area, and requesting answers from EPA on a number of issues arising from its efforts thus far.
Opportunities for Input
AGC is now preparing to participate in the upcoming public hearing scheduled for June 26, 2013, in the Washington, D.C. area. The hearing will be opportunity for stakeholders and interested persons to provide relevant data and information to EPA in-person.
In addition, there will be opportunity to submit written information and data to EPA electronically. One month before the public hearing, EPA will publish another notice in the Federal Register announcing the location/time of the hearing and the opportunity to submit written comments to the docket. (The docket will be open for EPA to take additional comments from approximately May 26 to July 26, according to the agency.) After the public meeting, the docket will remain open for public comment for another 30 days.
EPA also plans to convene a Small Business Advocacy Review Panel meeting prior to publication of a proposed rule. The panel meeting would be an opportunity for small businesses, small governments, and small organizations (collectively referred to as small entities) to provide advice and recommendations to ensure that EPA considers small entity concerns. EPA will request that eligible small entities self-nominate for participation in the panel at http://www.epa.gov/rfa/sbar-panels.html.
For More Information
For technical information, please contact EPA’s Hans Scheifele at (202) 564-3122 or firstname.lastname@example.org. For general information, please contact the TSCA-Hotline at (202) 554-1404 or TSCA-Hotline@epa.gov. For information on AGC’s advocacy work, please feel free to contact Leah Pilconis, senior environmental advisor to AGC, at email@example.com.