AGC Voices Industry Concern on Expansion of Federal Lead Paint Rules

The U.S. Environmental Protection Agency (EPA) has selected AGC of America to advise a panel of government officials on how to minimize the small business impact of imminent federal rules covering Lead Renovation, Repair and Painting (LRRP) work in public and commercial buildings.

Over the last several months, AGC has worked with a coalition of more than a dozen construction and real estate development groups to submit multiple letters to EPA raising concerns about economic, technical and other legal impediments that could result from an expanded federal LRRP program.   In broader outreach, AGC and coalition partners recently wrote to U.S. House Government Oversight and Reform Committee Chairman Rep. Darrell Issa (R-Calif.) explaining how the current and future LRRP requirements pose a major obstacle to market recovery by negatively impacting job growth and preservation in the construction industry.

EPA is currently considering how to expand and strengthen requirements under its 2008 LRRP rule to cover renovations of both the exteriors and interiors of public and commercial buildings. Current LRRP requirements, which took full effect April 22, 2010, require paid contractors that disturb lead-based paint in homes and child-occupied facilities built before 1978 to comply with federal accreditation, training, certification, recordkeeping and other work practice requirements, or risk fines of up to $37,500 per day per violation.   See 73 Fed. Reg. 21,692 (April 22, 2008).   AGC has distributed news articles that explain the legal requirements and contractor responsibilities.   (Note: EPA can authorize states to administer and enforce their own LRRP programs and in some cases state compliance requirements may be more stringent.)   Poor development and implementation of the LRRP rule has resulted in contractors facing considerable costs to comply with the rule.

Small Business Impact
With the selection of small entity representatives to serve on EPA's Small Business Advocacy Review (SBAR) Panel on LRRP rules for the exterior of public and commercial buildings, the Agency is moving ahead with the legal process of expanding the scope of its 2008 LRRP rule.   EPA is scheduled to formally propose rules covering exterior work performed on those buildings by late 2011.   AGC's role is to inform the Panel (Small Business Administration, the Office of Management and Budget and EPA staff) on the impacts the proposal may have on small business contractors.

Also on the horizon is the likely development of an LRRP rule targeting the interiors of public and commercial buildings.

Last month, AGC staff and AGC Environmental Network Steering Committee members met with the EPA staff person who is drafting the new lead paint rules.   AGC shared its comments and concerns and requested an open dialogue with EPA as it moves forward with this rulemaking.   A follow-up conference call has been set for early February 2011.   Please email pilconisl@agc.org if you would like to participate in this important call.

AGC, Coalition Partners Seek Congressional Oversight
In a January 10, 2011 letter to Chairman of the U.S. House Committee on Oversight & Government Reform, Rep. Darrell Issa, AGC wrote that new regulations covering lead dust in public and commercial buildings “will create costly disincentives to ongoing repair and rehabilitation activities in residential, public and commercial buildings, and [will] hinder job creation in the seriously stressed construction sector without demonstrably improving the public health.”

In a related effort, on December 6, 2010, the coalition wrote to EPA and urged the agency to obtain more data before expanding its LRRP rule.   “As EPA itself has noted . . . the development of lead hazard standards for public and commercial buildings is fraught with uncertainty due to the minimal data that are available regarding the prevalence of lead dust in these types of buildings and other factors that are critical to the development of a reasonable standard,” the coalition's letter states.   The letter was submitted in conjunction with a hearing by EPA's Science Advisory Board (SAB) into the scientific bases for new lead paint laws.

AGC expects the advisory board will recommend that EPA develop new regulations, even though it lacks scientific data on actual lead paint hazards in commercial buildings.   This lack of data “has led EPA to rely heavily on extrapolations from data and models generated in connection with EPA's development of lead dust hazard standards and regulations that apply to residential settings,” the December 6 coalition letter added.

At the outset, AGC worked with the same coalition to file comments in response to EPA's Advance Notice of Proposed Rulemaking (ANPR) to expand the LRRP rule to regulate renovations of the exterior of public and commercial buildings (to the extent those renovations create lead-based paint hazards).   Click here for more information on AGC's response to the ANPR.

The coalition has also submitted comments to EPA on a separate proposal that would require contractors to perform “dust-wipe testing” after most construction activities covered by EPA's LRRP rule to show that lead levels comply with EPA's standards.   Regulated contractors would also need to provide the results of the testing to the owners and occupants of the building. For some of these renovations, the proposal would require that lead dust levels after the renovation be below the regulatory dust-lead hazard standards.   AGC is concerned the proposal would add significant liability to construction firms by making the remodeler responsible for lead exposure issues existing in regulated facilities before any work is performed, as well as outside the area in which the renovation work has taken place. Moreover, as the LRRP rule expands to commercial buildings, so would the dust-wipe testing requirements.

Reason for Expansion of Lead Paint Rules
EPA's plans for expanding LRRP rule provisions stem from a settlement agreement between EPA and several advocacy groups that filed a lawsuit alleging the 2008 LRRP regulation is not protective enough because it fails to address lead-paint hazards on nonresidential buildings.   Under the settlement agreement, EPA must issue a final LRRP rule for nonresidential building exteriors by July 15, 2013, following issuance of a proposed regulation and work-practice standards.   In addition, EPA committed to consult with EPA's Science Advisory Board (see above) on a methodology for evaluating the risk posed by renovations in the interiors of public buildings built before 1978 and commercial buildings.   Eighteen months after receipt of the SAB's report, EPA must issue a proposal to regulate interior renovations or conclude that such renovations do not create lead-based paint hazards.

More Information
Additional information on this rule can be found here.   To learn more about lead-safe work practices and actions you can take before beginning work, click to read EPA's lead hazard information pamphlet, Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools.