As we have mentioned in our recent articles on the EPA RRP updates, the EPA is requesting public comments on numerous items. One item they are considering is should they extend the current RRP policies to include public, commercial, and possibly industrial buildings. While this one issue theoretically does not affect Homeowners directly, it can still have an impact on everyone depending on what they do.
Unlike their other public comments, they do not have any proposed language attached, just a list of questions and requests for data. When I first started thinking about this article, I originally thought about providing a Clif Notes version of the main questions or points. Unfortunately, there are a few major issues with this idea; the first is a complete lack of knowledge or sharing of that knowledge between the different groups that wrote the many sections found in this document. Second was the shear amount of the questions or request for data (I stopped counting at 150 questions). One of the other main issues, was how many times they asked the same questions, questioned their own data they used on the original RRP, etc…
Well in the spirit of this document, and my giddy feelings on how well the EPA is educating the consumers on the existing RRP, I decided to have a little fun with their last set of questions found in Section G: Exposure Considerations (needless to say – the bulk of these questions were actually already asked in previous sections). I was able to group them into four main sections and decided to reword them to help you understand what they are looking for. Afterwards, I included what the EPA is required to do at a minimum according to their settlement with the Sierra Club and a few issues of the legal issues I see that they will need to overcome.
Question 1 – 3: What is and how can we classify Public or Commercial Buildings?
No, I am not kidding you; they seriously want to know what denotes a public building, what denotes a commercial building, and how they can classify them. They also appear to be looking for any excuse to take any mixed-use building or any possible “activities” that may occur there, so they can apply it to either the whole building or the entire property.
Question 4 & 5: How often are buildings tested and /or renovated?
As I talked about in the 67 days and counting article on the original RRP rollout, that Executive Order 12866 calls for three findings to justify the need for a federal regulation. The first finding is they must try to justify that there is a market failure or social purpose that can be met via the regulation. Welcome to the first question where they start trying to gain that justification. I can just see it now, Based on the “commentors” it appears that there is no standard across the nation “to determine the presence, distribution and extent of lead-based paint” in public or commercial structures, thus…
Question 5 – 11: Can anyone please point us to any junk science data that might help us?
First what is funny is how they try to reword additional questions, which have already been covered in a prior question just in this section. If one were not so cynical, it would almost appear that they were looking for a specific answer. Oh wait, they are – so they might be able to add in a possible “social purpose.”
Think I am kidding – consider these exact quotes from three different questions. “For example, many low income communities are in mixed-use neighborhoods.” “For low income communities in mixed-use neighborhoods, particularly those in which the housing stock is primarily pre-1978, how should EPA consider multiple exposures from both residential buildings and public and commercial buildings?” “Do communities in mixed-use neighborhoods have higher burdens of lead exposure? What factors should EPA consider in assessing the extent to which renovations in and on public and commercial buildings contribute to disproportionate impacts?”
Question 12 & 13: Going green really isn’t good for us; can we co-opt these programs onto our side?
Nope I am not kidding here – “To what extent do green building certification systems encourage the reuse of lead-contaminated building materials? To what extent do these systems encourage lead abatement of reused materials?”
The court settlement forcing the issue:
Based on the court settlement the EPA agreed to do 3 items to the extent those renovations create lead-based paint hazards.
- Issue a proposal to regulate renovations on the exteriors of public and commercial buildings other than child-occupied facilities by December 15, 2011 and to take final action on that proposal by July 15, 2013.
- Consult with EPA’s Science Advisory Board by September 30, 2011, on a methodology for evaluating the risk posed by renovations in the interiors of public and commercial buildings other than child-occupied facilities.
- Eighteen months after receipt of the Science Advisory Board’s report, either issue a proposal to regulate renovations on the interiors of public and commercial buildings other than child occupied facilities or conclude that such renovations do not create lead-based paint hazards.
A few of the legal issues I see:
Based off all three requirements above, this entire section of the settlement appears to be invalid unless Congress changes the law. First based on the “Congressional approval” you are using for the original RRP, it stops with certain Target Housing and houses built before 1978. I think you fully realize this, thus the way certain questions are worded trying to tie “activities” and “outbuildings” into the equation.
Next, even if you move forward, based simply off Executive Order 12866, and its third requirement of “why the current regulatory initiatives are not sufficient to correct the market failure” you have quite a few issues. The first will be finding a legitimate “market failure.” Unless you like to lie, you would also be hard pressed to prove that OSHA, and numerous other agencies have not already put in place stringent programs (which includes containment) in place that deal with all these buildings that contain or have lead based paint including air borne monitoring.
What’s next:
First, public comments are still open for this proposal & the mandatory third party dust sampling. As listed in the court settlement, the EPA has until Dec 15th to create the proposal. Hopefully by that time, some cooler or smarter heads will prevail and it dies on the vine. If not the EPA will still have to release the full proposal on Exterior Paint Section for public comment, at which time we shall see.
