Update on Upcoming Expansion of Federal Lead-Based Paint Rules

AGC is continuing its work with a coalition of real estate and development groups (Commercial Properties Coalition) to identify issues and items that could be included in a comment package responding to the U.S. Environmental Protection Agency’s (EPA) forthcoming proposed Lead Renovation, Repair and Painting (LRRP) rule(s) covering renovations of both the exteriors and the interiors of public and commercial buildings.  Meanwhile, the court-ordered deadlines for promulgating such rules have been clarified and extended; the legally-required process of evaluating the rules’ impact on small businesses has been delayed; and Congressional officials are criticizing EPA’s implementation of the current LLRP rule and the lack of sufficient evidence to warrant expansion. EPA appears to be struggling with the details of how to expand and strengthen requirements of the 2008 LRRP rule.  The current LRRP rule requires paid contractors and maintenance professionals to be trained and certified on certain mandated lead-safe work practices before renovating or repairing housing and facilities for children built before 1978, among other things.  AGC’s prior work with the Commercial Properties Coalition has included letters to EPA questioning the science and legal basis behind expansion of the LRRP program; the lack of lead test kits with improved false/positive readings; the inability of EPA to properly monitor compliance; and the detrimental impact on the current administration's focus on job creation and energy-efficient renovations. Within its fiscal year 2012 appropriations report, EPA has requested a $219,000 budget increase to implement and enforce compliance of the current LRRP rule and to continue its work to expand the program. In anticipation that EPA will soon propose new LRRP rules for renovation work on public as well as private commercial buildings, AGC continues to work with the Commercial Properties Coalition to map out the legal standard for what constitutes a lead “hazard” under TSCA (Toxic Substances Control Act) Section 403 and to independently analyze the related scientific reviews, technical supporting documents and cost justification data. EPA’s plans for expanding the LRRP rule provisions to nonresidential buildings is the result of a settlement the agency reached after several advocacy groups filed suit in the wake of the EPA’s issuance of the residential LRRP rule in 2008. Recently, all parties to the settlement recently agreed to clarify and revise the deadlines for EPA action.  Specifically, EPA’s deadline to sign the “exterior” proposal has been delayed from December 15, 2011, to June 15, 2012.  The deadline to take final action on the “exterior” rule is now February 15, 2014, instead of July 15, 2013.  This delay may explain why the Small Business Advocacy Review still has yet to formally convene to assess the small business impact of any future federal rules covering “exterior” LRRP work on public and commercial buildings. This review process is required by the Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). AGC was selected to serve as a Small Entity Representative to the Panel and will provide input on the economic impact new lead rules would have on small businesses and offer alternative regulatory approaches that would minimize the burden. Per the settlement agreement, EPA convened a science advisory board (SAB) in 2010 to determine if an LRRP rule is required for nonresidential-building interiors. The SAB recently issued a report noting that “there is little to no empirical data related to lead dust exposures in public and commercial buildings … using empirical data from residential settings introduces uncertainty … [n]evertheless the residential data are the best estimates available, because there are no data available to suggest that dust lead levels in public and commercial buildings are different from residential buildings,” the SAB report states.  Accordingly, EPA is expected to propose a lead rule for interior renovation of public and commercial buildings within the next 18 months.  AGC, working with the coalition, will continue to push EPA to demonstrate that there is a plausible method and evidence to tie lead from interior (or exterior) paint renovation to a human health hazard. On the legislative front, approximately a dozen U.S. Senators collectively sent a letter to EPA Administrator Lisa Jackson questioning the agency’s efforts to further amend the 2008 LRRP rule.  The letter calls on EPA to identify and provide any new scientific data that has been or will be used to justify expansion of the existing regulation.  Most recently, top Republican on the Senate Environment and Public Works Committee James Inhofe (R-Okla.) called for a hearing on the LRRP rule. For more information, please contact Leah Pilconis at pilconisl@agc.org.