AGC Responds to EPA's Plans to Expand Lead Renovation, Repair and Painting Program Rule to Commercial Buildings

AGC July 6 responded to an Advance Notice of Proposed Rulemaking by the U.S. Environmental Protection Agency (EPA) to expand the Agency's Lead Renovation, Repair and Painting Program (RRP) requirements to cover work performed in commercial and public buildings. EPA is actively reviewing the lead paint laws that are already on the books for residential renovation and remodeling work and considering whether and how to apply those requirements to public and commercial building renovation and remodeling, pursuant to a legal settlement agreement that the Agency made with several environmental and public health advocacy groups. For exterior renovations of public and commercial buildings, EPA must issue a proposed rule requiring lead-safe work practices by December 15, 2011, and must take final action by July 15, 2013.  For interior renovations, the EPA must consult with the EPA Scientific Advisory Board (SAB) by September 30, 2011, regarding a methodology for evaluating the risk posed by renovations in public and commercial buildings.  If EPA concludes that interior renovation activities do create lead-based paint hazards, then EPA must issue a proposed rule applying specified work practices to such activities within 18 months after receiving the SAB report and must take final action 18 months thereafter. The ANPR includes no proposed language.  Rather, the public was invited to respond to over 100 detailed questions and data requests.  Currently there are no limits on the potential scope of regulated commercial and public buildings. Other unresolved questions include: What renovation and repair work should be covered? What activities create the most risk? Should exposure pathways be broadened to include nearby properties?  AGC invited members to help shape the future lead paint rule and solicited input on a variety of important industry-specific issues currently under consideration at EPA. AGC Comments As part of a coalition of 15 other organizations, AGC filed comments with EPA maintaining that the Agency lacks the legal authority to adopt requirements for Lead RRP activities in public and commercial buildings.  In the comments, the coalition pointed out that the statute under which EPA would issue the rule grants it the authority to issue guidelines for work practice standards, but not the authority to promulgate such regulations for RRP in public and commercial buildings. In addition, the coalition noted that such regulations would exceed EPA's authority because public and commercial buildings may present very different patterns of exposure to lead-based paint than in residential settings.  EPA can write rules with respect to RRP activities only where these  activities create a lead-paint hazard (disturbance alone is not enough).  The coalition also pointed out that that the ANPR is premature because EPA has not conducted the required "Study of certification" that is a prerequisite for imposing regulatory requirements on RRP activities.  EPA acknowledges in the text of the ANPR that it does not have enough information - admitting that it is relying on old and unrelated studies. The coalition comments focus on the lack of information EPA has on the prevalence of lead-based paint in commercial buildings - strongly suggesting the need for continued stakeholder input - and urge EPA to promptly convene a Small Business Advocacy Review Panel consistent with the Regulatory Flexibility Act to determine the economic impact on the substantial number of small entities that would be affected by the rule. The regulations of Lead RRP activities in public and commercial building may conflict with other national priorities.  These RRP rules could likely impose regulatory costs that are so high they would nullify any financial incentives offered for energy efficiency projects, and thereby discourage building upgrades designed to lower power consumption, reduce greenhouse gas emissions, and create green jobs, the comments note. In addition to its ANPRM, EPA announced it will extend the comment period for its Notice of Proposed Rulemaking (NPRM) for Lead; Clearance and Clearance Testing Requirements for until August 6 (click here to read the notice).  Under the "dust-wipe testing" rule proposed by the EPA, the remodeler would be required to send testing labs samples from surfaces both in the work area and immediately outside it or hire a certified testing specialist to examine the work area.  The new rule would add significant liability to the remodeling firm by making the remodeler responsible for lead exposure issues existing in the work area before any renovations are performed, as well as outside the area in which the renovation work has taken place.  As the RRP rule expands to commercial buildings - so would the dust-wipe testing requirements.  AGC is working with a coalition of real estate and development groups to submit comments in advance of the deadline. Background The Lead RRP rule requires that renovators are trained in the use of lead safe work practices, that renovators and firms be certified, that providers of renovation training be accredited, and that renovators follow specific work practice standards.  The rule also includes provisions for the retention of compliance records, and the verification of compliance with work practice obligations, as well as pre-renovation education requirements (i.e., distribute EPA pamphlets and document compliance).  Additional information on this rule can be found at http://www.epa.gov/lead/pubs/renovation.htm. The rule applies to all firms and individuals who are paid to perform renovation, repair, and painting projects that disturb paint in pre-1978 housing and child-occupied facilities and schools. This includes home improvement contractors, maintenance workers, painters and other specialty trades. Even though the Lead RRP rule currently has a relatively narrow focus, its requirements have generated substantial controversy.  Issues related to obtaining the required training, safe implementation of the work practice requirements, costs of compliance and the possibility of a $37,500 per day, per violation penalty are only now being confronted by the regulated community as well as the regulators. EPA recently announced it will delay enforcement of certain Lead RRP requirements.  The Agency issued a memorandum providing renovation firms and workers additional time to obtain necessary training and certifications to comply with its new lead paint rules. For more information, contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332.