AGC at EPA Hearing: OSHA Already Manages Lead Hazards from Work in Public and Commercial Buildings
July 08, 2013

AGC testified at a U.S. Environmental Agency (EPA) public hearing on June 26, 2013, regarding EPA’s ongoing evaluation into whether and how to regulate renovation, repair and painting (RRP) activities in all public and commercial buildings that purportedly have lead-based paint. 

At EPA’s June 26 meeting on expansion of the lead paint program, AGC’s oral statement focused mainly on:

  1. The need for greater and more coordinated outreach to federal, state and local buildings and facilities owners (e.g., GSA and military branches).
  2. The importance of avoiding duplication with existing laws and regulations (e.g., OSHA/HUD) and studying existing standards and practices (e.g., LEED).

Click here to see AGC’s PowerPoint presentation slides.

EPA is required by Executive Orders from both the Clinton and Obama administrations – and related interagency agreement(s) – to inventory and consider whether existing regulatory programs and industry practices already address any potential lead-based paint hazards and renovation work practices in public and commercial buildings.  At EPA’s meeting, AGC explained the many instances where OSHA’s Lead in Construction Standard (Title 29 Code of Federal Regulations Section 1926.62) is more protective and more comprehensive than EPA’s current Lead, Renovation Repair and Painting (LRRP) rule.  EPA must assess existing authorities already “on the books” that clearly and adequately addresses lead-based paint hazards and determine the effectiveness of such standards in addressing any lead paint “hazards” that may result from RRP activities in public and commercial buildings, AGC stated.

AGC went on to make a strong case that existing OSHA regulations are an effective means to protect the public from lead-based paint hazards.  More specifically, current OSHA regulations apply to all construction work when an employee may be exposed to ANY detectable concentration of lead, even levels below EPA’s thresholds for “lead-based paint.”  On every job where lead is present, the contractor must conduct an air monitoring tests, protect employees during the assessment, and follow stringent work practice and training procedures for lead-related tasks to prevent employee exposure to airborne dust during RRP activities.  OSHA requires contractors to maintain all surfaces free of lead, including the use of HEPA vacuum systems on all jobs, and adhere to detailed “work practice and engineering controls” to reduce and maintain employee exposure to lead levels below the permissible limit.  OSHA standards also require extensive worker training, a written compliance plan and recordkeeping on all jobsite where lead is present.

AGC recognizes that EPA’s LRRP is focused on protecting the surrounding public from lead-paint hazards and the agency is actively looking at how far dust will travel during construction.  However, if OSHA regulations are deemed sufficient to protect the employees who are actually performing the work, AGC believes that EPA has a tough case to prove that any persons NOT associated with the project would be (or could be) detrimentally exposed to lead dust.

EPA provided advanced notice of its public hearing earlier in the year when it solicited comment from stakeholders who manage or perform RRP work on the exterior or interior of such buildings.  On April 1, 2013, AGC and its partners in the Commercial Properties Coalition filed 61-pages of detailed comments with EPA asserting that before the agency continues to explore regulating RRP activities, EPA should establish there is a hazard from lead based paint in public and commercial buildings that is not already addressed by existing regulatory programs and industry practices. For a summary of the industry’s current position, click here.

EPA’s current Lead Renovation, Repair and Painting (LRRP) rule – the one finalized in 2008 and fully implemented in 2010 — applies only to paid contractors who perform renovation, repair, and painting projects that disturb lead-based paint in pre-1978 “target housing” and “child-occupied facilities” such as daycares and schools.

Pursuant to a lawsuit settlement agreement, EPA may expand the application of the 2008 LRRP rule to potentially all commercial buildings and pre-1978 public buildings by the end of 2016.  That would mean a lot more projects and, presumably, a lot more AGC members would need to comply with the requirements or risk fines of up to $37,500 per day per violation.  The 2008 LRRP rule requires training, certification, lead-safe work practices, recordkeeping and other contingencies.

As previously reported by AGC, EPA recently initiated sweeping enforcement actions against dozens of companies across the country for violations of the current LRRP rule. Click here for AGC’s Fact Sheet on what the current LRRP rule requires.

For more information, please contact AGC’s Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.