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.”[[{"type":"media","view_mode":"media_large","fid":"4409","attributes":{"class":"media-image","typeof":"foaf:Image","style":"","width":"252","height":"197","alt":""}}]]
Industry Comments
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.