AGC continues to call for greater transparency, accountability and oversight in the development of national rules covering Lead Renovation, Repair and Painting (LRRP) activities. AGC helped to bring some positive movement this summer on the “residential” side of the LRRP rule – which is now in full effect – and influenced the U.S. Environmental Protection Agency’s (EPA) decision to abandon lead-dust sample and testing for repair work on homes, schools and daycare centers built prior to 1978.
EPA agreed with AGC that significant, complex and costly amendments to the current LRRP program were not needed to meet the goals of the statute (and as shown by the data). EPA is now working on a new proposed rule for LRRP activities performed on the exteriors of commercial and public buildings by June 15, 2012; a rule covering interior work is next in line. AGC will remain actively engaged in congressional outreach, small-business review and legal research efforts designed to hold EPA accountable for the quality of the data and information it uses to support any expansion of this federal program.
Specifically, EPA recently backed away from a regulatory proposal that would have added stringent and expensive “clearance testing” requirements to the “residential” LRRP rule. (See EPA’s Federal Register notice and AGC’s Environmental Observer article dated July 22.) Such testing would have required onsite maintenance staff and third-party contractors to submit post-renovation dust samples to an EPA-certified lab to ensure compliance with the LRRP rule. EPA properly acknowledged that its own studies show that the work practice and cleaning protocols in the current LRRP regulations are sufficient and no additional clearing test is necessary.
According to EPA estimates, the cost of its proposed additional testing requirements would have come at a price of $300 million per year (2010$). However, industry research shows that EPA significantly underestimated the costs of several aspects of its proposal, perhaps by an amount between $210 million and $420 million annually. In any case, the cost savings to industry is exponentially greater when you consider the fact that the testing requirements would have applied to work on public and commercial buildings once EPA expands the scope of the current LRRP program.
AGC remains optimistic that EPA’s change in course on the “clearance testing” requirements is a prelude to improved rulemaking practices.
Advocacy Efforts
AGC continues to support on-going efforts on Capitol Hill to provide greater oversight on EPA’s lead-paint regulatory program, in general. AGC backed language in the EPA 2012 appropriations bill and signed-on to a July letter advocating that EPA’s current LRRP rule should not be funded, until an accurate and reliable kit is commercially available to test the presence of lead paint in dust when remodeling activities are conducted in homes – for example, a test kit that does not regularly report “false positives.” During the markup of H.R. 2584, Rep. Denny Rehberg (R-MT) supported an amendment along these lines, which passed the House Appropriations Committee. Section 450 of the EPA appropriations bill (at p. 144) includes “Lead Test Kit” language, stating that no funds can be used by EPA to implement or enforce its residential remodeling rule until the agency “publicizes [its] recognition of a commercially-available lead test kit” that reports accurate and reliable readings of potential lead-based paint hazards caused by renovation activities. We will see where all of this goes when Congress acts on the EPA appropriations bill (or, in all likelihood, in the context of an omnibus.)
Legal Research Efforts
AGC already is preparing to respond to EPA’s plans to expand the scope of the LLRP rule. Initial legal research firmly establishes the fundamental legal proposition that EPA can only move forward with a commercial buildings LRRP rule if the agency establishes the requisite linkage between commercial building “renovation” activities and “dangerous levels of lead” that provide a cognizable “hazard” under the Toxic Substances Control Act. AGC has worked with outside legal experts to collect many statements from EPA and its Science Advisory Board demonstrating that it lacks the requisite data showing such a linkage. AGC is developing a summary that could be used for advocacy and briefing purposes. AGC also plans to meet with interested Congressional staff to discuss the “no linkage” issue, and request an oversight letter from the appropriate House and Senate committees of jurisdictions (similar to what we did with stormwater).
EPA has yet to formally convene the long-awaited small business impact review panel (on which AGC was selected to serve) to discuss the rulemaking.
Background and Talking Points on EPA’s Lead Rules
EPA’s current lead paint regulatory program applies to renovation and remodeling activities in older “target housing” and “child-occupied facilities” built before 1978. EPA now plans to take its lead paint regulatory program for residences and apply it to all types of commercial and pre-1978 public buildings – including offices, stores, factories, plants and hotels.
For the information and benefit of AGC Chapters and members, following are the key issues that AGC is actively pursuing with EPA—
- Has EPA ever studied the differences between the residential and commercial building sectors, in terms of the lead paint hazards each may pose? Doesn’t EPA think it must conduct such a study first, before it issues new commercial building regulations? Or, does EPA think it can simply take what it has done in the residential context, and apply it to the commercial context?
- In the residential context, the sensitive population to be protected is young children who might ingest lead paint. EPA also has rules in place now to cover “child-occupied facilities” – like day care centers in office buildings. Before expanding its lead paint regulatory program to all commercial buildings – regardless of when they were built – has EPA studied the degree and extent of lead paint hazards for children in the commercial buildings sector?
- There is much “ambient” lead in our environment – in air and soils. Has EPA determined whether renovations in commercial buildings are the cause of lead hazards to sensitive groups? Will building owners be saddled with the responsibilities to address “background” lead hazards that they have no way to control?
- Assuming EPA does have regulatory authority in this area, it does not have authority over buildings per se. Rather, the agency’s statutory charge is only to regulate renovation and remodeling activities that caused lead paint hazards. Does EPA have any basis to distinguish renovations in commercial buildings, from regular day-to-day office maintenance? Does EPA intend that ordinary maintenance in a commercial building, which happens every day and all of the time, to constantly trigger lead paint regulations on a continual basis?
- EPA and the Obama Administration have issued policies and proposals to encourage building owners to “retrofit” their buildings and make them more energy efficient. Commercial building upgrades, to improve energy efficiency, are a core component of the Obama Administration’s recently announced “Better Buildings Initiative.” Has EPA considered how lead renovation regulations will impact with the Administration’s policies to encourage building renovations for energy efficiency purposes? Will the added costs of lead regulations be a disincentive for building owners to remodel their buildings with more energy efficient windows, insulation and systems?
- OSHA already has worker-safety programs in place to control the spread of possible lead dust in the context of building renovations. Aren’t these OSHA regulations sufficiently protective of lead hazards? What greater protections will EPA’s proposed new regulations add to the regulations that are already in place?