U.S. EPA Seeks Input on Plans to Regulate Lead Paint Work in Buildings

The U.S. Environmental Protection Agency (EPA) has embarked on three notable activities to gather information and data to determine whether or not renovation activities in public and commercial buildings expose the public to lead-based paint dust, with a possible proposed rule coming in July 2015.  First, EPA is soliciting small construction company representatives to advise a federal review panel on how to minimize the potential burden of any proposed regulation on small businesses. The deadline to submit a nomination is May 9 – click here to apply.   EPA is also preparing a broad-based survey to collect various types of information from the public and commercial (P&C) building industry.  Lastly, EPA has sent “information request letters” to a smaller, targeted group of entities seeking records and data related to the Occupational Safety and Health Administration’s (OSHA’s) construction standard for lead. The Small Business Review The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act requires EPA to convene a Small Business Advocacy Review Panel for any proposed rule unless the agency certifies that the rule will not have a significant economic impact on small entities. The Panel itself is comprised of federal employees from EPA, the Office of Management and Budget, and the Small Business Administration's Office of Advocacy.  In this instance, the Panel intends to ask a group of small-business representatives to provide input and recommendations (on behalf of their company, community, or organization) on how they would be impacted if EPA expands the current Lead Renovation, Repair and Painting (LRRP) regulation –see background section below – to cover work in P&C buildings and ways to mitigate those impacts. Representatives may participate via telephone or webinar, as well as in person. For this rulemaking effort, “small businesses” representative means a building contractor with $33.5 million or less in annual average receipts and a specialty trade contractor with $14 million or less, who would be directly subject to the rule. Again, self-nominations may be submitted through the link below and must be received by May 9, 2014. To submit a nomination and for more information, please visit http://www.epa.gov/rfa/lead-pncb.html. Lead Survey for Building Contractors  EPA’s plan to survey general contractors regarding their recent renovation, repair and painting activities in P&C buildings is currently underway. AGC worked with the “Commercial Properties Coalition” to provide comments on the scope and clarity of the questions included in EPA’s draft Information Collection Request (ICR), as well as its underlying assumptions and burden/cost estimates. If EPA receives approval from the White House Office of Management and Budget to proceed with the survey, it could be sent to construction companies within the next few months. The respondents to the survey would be selected at random and participation would be voluntary. Request for OSHA Records In addition, EPA recently denied a request from several organizations that asked the agency to issue a Toxic Substances Control Act (TSCA) Section 8(d) rule that would force owners of P&C buildings to provide EPA with six types of “critical” information related to the OSHA construction standard for lead.  Click here to read the legal petition and here for EPA’s response. In denying the petition, the agency explained that the rule requested by the petitioners would not result in much useful health and safety information regarding lead exposure in P&C building. However, EPA did not disagree that more information of this type is of value and has now indicated that it will attempt to obtain it in a “more targeted, efficient, and less burdensome manner.” EPA says it already is working with OSHA to determine the availability of lead sampling and exposure data in OSHA enforcement records.  AGC is in direct talks with EPA staff to streamline the scope of the agency’s OSHA-related request to produce the most useful and meaningful information without imposing excessive burden and cost on construction companies. AGC testified at an EPA public hearing in June 2013, making a strong case that existing OSHA regulations are an effective means to protect the public from lead-based paint hazards. To see a copy of AGC’s presentation and related comments, click here.   Background EPA’s current LRRP rule — finalized in 2008 and fully implemented in 2010 — applies only to paid contractors who perform renovation, repair, and painting projects that disturb lead-based paint in pre-1978 “target housing” and “child-occupied facilities” such as daycares and schools. However, as explained above, contractors should be aware that EPA is actively pursing a large expansion of the 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 training, certification, lead-safe work practice, recordkeeping and other requirements, or risk fines of up to $37,500 per day per violation. EPA has until July 1, 2015, per a legal settlement agreement, to propose an approach to regulating lead paint dust in commercial and public buildings and, if more rules are deemed necessary, final action is due by Dec. 31, 2016.  EPA can only move forward with its public and commercial buildings LRRP rule if it establishes the requisite linkage between P&C building “renovation” activities and “dangerous levels of lead” that provide a cognizable “hazard” under TSCA. As reported by AGC at great length, EPA first released an Advance Notice of Proposed Rulemaking, formally announcing 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, in April 2010.  However, EPA’s timeline and approach have changed many times since then.  A collection of documents related to this rulemaking is accessible to the public online through www.regulations.gov (search Docket No. EPA-HQ-OPPT-2010-0173) or click here. Enforcement AGC members should be aware that EPA continues to inspect and enforce the current LRRP rule. The U.S. Justice Department, EPA, and Lowe’s Home Centers, LLC, have entered into a Consent Decree to resolve alleged violations of the EPA’s Lead Renovation, Repair, and Painting Program requirements, according to an April 24, 2014, notice in the Federal Register. The allegations, associated with violations at three home sites, require Lowe’s to pay a $500,000 civil penalty and implement a comprehensive compliance program. EPA is employing several enforcement strategies, but it is relying primarily on tips reported via its hotline, (800) 424-5323, and compliance website to identify potential violators. Click here for AGC’s summary of what the current lead-paint rules require. If you have additional questions, contact AGC’s Leah Pilconis at pilconisl@agc.org.