News

An In-Depth Look: EPA Revamps Plans To Regulate Lead Paint Dust in Commercial, Public Buildings

The U.S. Environmental Protection Agency (EPA) EPA has completely revamped its timeline and approach to regulating lead paint dust in commercial and public buildings.  The Agency recently signed a revised litigation settlement with environmental groups that gives EPA four more years—until December 31, 2016—to take final action.  AGC will continue to call for greater transparency, accountability and oversight in the development of national rules covering Lead Renovation, Repair and Painting (LRRP) activities.

EPA has four more years to finalize an approach to regulating lead paint dust in commercial and public buildings.  The current LRRP Program - meaning the one finalized in 2008 and fully implemented in 2010 -- remains unchanged and still applies only to paid contractors who perform renovation, repair, and painting projects that disturb lead-based paint in pre-1978 housing and child-occupied facilities and schools. But be aware that by the end of 2016, EPA may expand the application of the 2008 LRRP rule to potentially all commercial buildings and pre-1978 public buildings.  That would mean a lot more projects, and presumably a lot more AGC members, would need to comply with federal accreditation, training, certification and recordkeeping requirements (under the 2008 LRRP rule), or risk fines of up to $37,500 per day per violation.

As reported by AGC at great length, EPA formally announced in an April 2010 Advance Notice of Proposed Rulemaking that it was on its way to proposing brand new federal rules to guard against lead-based paint hazards that may occur during the renovation or repair of commercial and public buildings.  

EPA had been under a June 2012 deadline to propose an LRRP rule covering renovations in the exterior of public and commercial buildings that create lead-paint hazards.  (Earlier revisions to EPA’s legal settlement agreement gave EPA until Feb. 15, 2014, to go final with its “exterior” rule.)  But with the latest revised settlement agreement, EPA now has until July 1, 2015, to propose an approach to regulating lead paint dust in commercial and public buildings (during both exterior and interior work); final action is due by Dec. 31, 2016. AGC’s efforts thus far, through its letters to EPA and push for more Congressional oversight, have resulted in a significant delay in EPA’s issuance of new regulations.  For two years, AGC has worked with a coalition of real estate development groups to submit multiple 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.  AGC was selected to serve on EPA’s Small Business Advocacy Review (SBAR) Panel on LRRP rules for the exterior of public and commercial buildings, but the Agency never moved ahead with the legal process of convening the panel. EPA can only move forward with its commercial/public buildings LRRP rule if the agency establishes the requisite linkage between commercial/public building “renovation” activities and “dangerous levels of lead” that provide a cognizable “hazard” under the Toxic Substances Control Act.  AGC’s coalition presented a strong case that EPA lacks data on the nature and extent of lead-based paint hazards unique to the commercial buildings stock.  As of this writing, EPA has still not followed through on statutory directives to conduct such studies in the commercial buildings context and to report on the results to Congress. Senate legislation introduced this past March (S. 2148) would require EPA to carefully study any possible lead-based paint hazards in commercial buildings — and submit its findings to Congress for review — before proposing regulations covering the commercial and public building sectors. Companion legislation has been introduced in the House (H.R. 5911). See below for related efforts on Capitol Hill. AGC helped to bring some positive movement this summer on the “residential” side of the LRRP rule and influenced EPA’s decision to abandon lead-dust sample and testing for repair work on homes, schools and daycare centers built prior to 1978.  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. Overview of Modified Settlement Agreement Following are other noteworthy points from this settlement agreement— 
  • Previously, EPA had been on two separate paths that would have bifurcated the promulgation of LRRP rules for exterior versus interior building renovations.  Under the latest settlement agreement, the exterior and interior renovations rules are now on the same regulatory deadlines.
  • The settlement agreement also states that, unless EPA concludes that “renovation activities in pre-1978 public and commercial buildings do not create a lead-based paint hazard,” EPA will continue to develop regulations in this arena.  This is consistent with the coalition’s position, that EPA can only develop a LRRP commercial rule if it has evidence that commercial building renovation activities do indeed create a “hazard.”
  • The settlement agreement sets forth a process for EPA to gather information regarding any “hazard” determination:
    • By December 31, 2012:  EPA will announce a public hearing to gather info on renovation activities and possible lead hazards in commercial buildings.
    • By July 31, 2013:  EPA will hold the public meeting.
    • By August 29, 2014:  EPA will have completed the oversight process required by the Small Business Regulatory Enforcement Fairness Act (SBREFA), including the convening of an SBAR panel.
Lead Renovation, Repair and Painting Program – Current Requirements Under the current rules, finalized in 2008 and fully implemented in April 2010, contractors who perform renovations, repairs and/or painting projects in most pre-1978 housing, child-care facilities and schools (i.e., that have, or are assumed to have, lead-based paint) must comply with federal accreditation, training, certification and recordkeeping requirements, or risk fines of up to $37,500 per day per violation. Specifically, the requirements apply to renovation, repair or painting activities where more than six square feet of lead-based paint is disturbed in a room or where 20 square feet of lead-based paint is disturbed on the exterior.  In addition, pre-renovation education requirements (in effect since Dec. 2008) require workers to distribute an EPA educational pamphlet called Renovate Right to occupants, post signs and retain records for three years.  Additional information on this rule can be found at http://www.epa.gov/lead/pubs/renovation.htm. EPA has widely reported instances where contractors have been charged with violating the current LRRP rule, resulting in thousands of dollars in penalties. Commonly reported violations include the failure to adhere to the disclosure, record-keeping and self-reporting requirements; these provisions represent “low-hanging fruit” for EPA regulators to run up significant penalties without too much effort and cost. Lead-Paint Rule Costs Miscalculated, EPA's Own Inspector General Finds Recently, EPA’s Inspector General reported on the findings of an investigation into the agency's economic analysis of the current 2008 LRRP rule. Not surprisingly, that report determined that EPA underestimated the 2008 LRRP rule’s cost and overestimated its benefits.  The Inspector General's report underscores the need for Congressional oversight of EPA’s lead program. Specifically, the Inspector General found that EPA's economic analysis of the 2008 LRRP rule was not complete.  The Agency used "limited data" when considering the costs of its lead renovation rule; specifically the cost data were not based on a statistically valid survey, and the agency did not quantitatively analyze or include other associated costs of complying with the rule (e.g., contractors' costs to secure additional liability insurance). EPA’s Inspector General does not accuse the Agency of violating any policies or legal requirements in conducting its economic analysis.  However, the report recommends that EPA reexamine the costs and benefits of the 2008 LRRP rule to determine whether it should be modified, streamlined, expanded, or repealed in accordance with the Obama Administration's directive to reform unnecessary and burdensome regulations. The inspector's report further recommends that the EPA revise its training manual to more clearly distinguish which work practices are mandatory. Congress Seeks to Reduce Burdens on Contractors AGC has supported legislation currently under consideration in both houses of Congress that would alter how violations of the lead-based paint rules are handled by EPA. Known as the "Lead Exposure Reduction Amendments Act of 2012", H.R. 5911 and S. 2148 proposes to do the following: restore the provision to allow homeowners without small children to “opt out” of the LRRP Rule; provide contractors an opportunity to cure defects in paperwork if any are found during an inspection; loosen lead-based paint worker recertification requirements; prevent EPA from expanding lead-based paint rules to commercial buildings unless and until it can demonstrate a need for such an expansion; redefine the word "abatement" to exclude renovation and remodeling; and exempt activities related to emergency responses. The bills also address an ongoing issue with identifying whether or not lead-based paint exists in a particular location.  It would suspend application of the entire LRRP rule until EPA identifies a reliable, commercially available “test kit.”  For more information, please contact Leah Pilconis, Senior Environmental Advisor to AGC, at pilconisl@agc.org.