AGC recently commented on the U.S. Environmental Protection Agency’s (EPA) proposed “Framework” for identifying, evaluating, and regulating lead-based paint (LBP) hazards from renovation, repair and painting activities in public and commercial (P&C) buildings. This proposed framework relies on a scenario-specific approach for determining when such renovations create adverse health impacts. EPA is also currently looking for scientific experts to peer review its draft “Technical Document,” which will outline the results of the modeled renovation scenarios, including the data sources and incremental health effects associated with any lead exposure. AGC continues to press EPA to document a problem and all potential costs before taking any action to expand the controversial Lead Safe Renovation, Repair and Painting (RRP) rule.
In a 34-page comment letter, AGC and its coalition partners (Commercial Properties Coalition) agreed with EPA that P&C buildings “vary greatly” in terms of their size, shape, configuration, use, occupancies, and cleaning frequencies, and that a “different approach” is warranted to address potential LBP hazards and exposure risks – compared to the already regulated target housing (i.e., housing constructed before 1978) and child-occupied facilities (i.e., generally a building visited regularly by children under 6). EPA is considering a “tailored approach” that would regulate only situations that resemble modeled scenarios in which adverse health effects would occur. However, the coalition is concerned with EPA’s plan to combine lead hazard identification, hazard evaluation, and proposed regulatory requirements. The letter explains that EPA does not have the authority to circumvent steps or avoid rulemakings and studies that Congress clearly set forth in the Toxic Substances Control Act.
The coalition also expressed concerns that the framework has not been independently peer reviewed, validated, or even explained fully. Specifically, it fails to explain the modeling parameters, how EPA might apply the results of any analyses, or what magnitude of deleterious health effect (or even what endpoint or endpoints) would be considered to be adverse. It does not identify what underlying exposure data would be used in running the proposed models, and without reliable data, the models cannot be expected to produce useful results.
The coalition’s comment letter also includes a technical review of the framework, prepared by individuals with expertise in air modeling, Monte Carlo analyses, health effects of lead exposures, and industrial hygiene practices.
Click here to read an AGC’s prior article that further explains the scope and content of EPA’s Framework to identify lead-paint hazards.
Technical Approach Document is Forthcoming
EPA published a notice requesting peer reviewers for the draft document entitled ‘‘Approach for Estimating Exposures and Incremental Health Effects from Lead During Renovation, Repair, and Painting Activities in Public and Commercial Buildings’’ (Technical Approach Document). According to EPA, a nominee, if selected, will assess the accuracy, content, and interpretation of findings of the Technical Approach Document, ensuring that they are factual and scientifically sound. The nomination period is open until July 18. Later this year, EPA plans to publish the Technical Approach Document, along with the chosen scientific peer reviewers.
Other Ongoing Efforts
AGC participated in earlier phases of public comment cycles regarding P&C buildings and has been in close communication with EPA staff over the last few months regarding several notable activities to gather information and data to determine whether or not renovation activities in P&C buildings expose the public to lead-based paint dust. Most notably, EPA is working to convene a Small Business Advocacy Review Panel to gather data about the OSHA construction standard for lead, and to launch a broad-based survey of contractors regarding their lead-safe work practices. AGC previously reported on these developments.
AGC and its coalition partners have notified EPA Administrator Gina McCarthy, in a letter sent on June 19, of concerns that the small business review proceedings are premature. We do not believe – at this time, a full year before EPA even anticipates a proposed rule and in light of the recently disclosed status of EPA’s approach to this issue – the EPA is in a position to narrow the options for what direction or form a rulemaking might take, or provide information to fully explain the economic impacts from such nascent regulations on small businesses. The coalition is also concerned that EPA is not presently able to describe flexibility alternatives in sufficient detail so that small businesses can meet their charge to provide helpful recommendations to the agency.
Timeline & AGC’s Main Concerns
EPA’s current focus on lead-based paint hazards in public and commercial buildings grows out of settlement it entered into in 2009 of a petition for review brought by the Sierra Club and others. In a September 2012 amendment to the settlement, EPA agreed that, by July 1, 2015, it would either notify petitioners that work practices related to public and commercial buildings do not create a lead-based hazard, or issue a proposed rule. If it does issue a proposed rule, then EPA must issue a final rule within 18 months.
The recent developments described above indicate that the agency is considering regulating P&C buildings differently than target housing and child-occupied facilities. The Commercial Properties Coalition has filed comments on multiple occasions. Principal concerns include:
- Under the statutory scheme, EPA must first identify a lead-based paint hazard under §§ 403 and 401(10) for P&C renovation, repair and painting activities, and may only regulate if and to the extent a hazard exists;
- The hazard standard EPA developed for target housing and child-occupied facilities (COF) does not apply to P&C buildings, since the two types of buildings are very different;
- Data from target housing and COFs do not apply to P&C buildings and to date EPA has not disclosed any P&C-specific data;
- EPA’s own Science Advisory Board has noted the lack of data from P&C buildings as a source of uncertainty;
- The Coalition has recommended that EPA seek the necessary data from federal agencies charged with responsibility for public buildings (e.g., GSA);
- EPA has not conducted the statutorily-required study under § 402 and the studies EPA has cited include only two non-residential (P&C) buildings; and
- EPA has not identified what health effects are of concern or what pathway ties P&C renovation, repair and painting activities to exposure that would result in adverse human health effects.