Public Comment on EPA RRP Proposed Changes

As we have mentioned in some previous posts that the EPA has requested Public Comments on a Proposed Extension into Public, Commercial & Industrial Buildings & a Clearance Testing Proposal. In both of those articles & on numerous forums, we have encouraged others to leave a comment whether they are for or against it. With that in mind, we were able to finish off our letter to the EPA today & submit it for both proposals.  We choose to combine both comments together as there was so much overlap and the instigating parts are not based on any scientific data, but rather a court settlement.

Requested Public Comment on proposed Clearance Testing (RIN 2070–AJ57) and proposed expansion to include Public and Commercial Buildings (RIN 2070–AJ56) from Sean Lintow Sr., owner of SLS Construction in Alabama

To whom it may concern,  

In regards to your request for Public comments on two actions you agreed to as part of a court settlement, I would like to start my comments with a look back at the lead act of 92, where you derive all your authority from & the applicable goals of this program.  Let’s start with the actual purpose of this act;

(1)    to develop a national strategy to build the infrastructure necessary to eliminate lead-based paint hazards in all housing as expeditiously as possible;

1. Commercial or Public Buildings; are not only not listed but not mentioned
2. Clearance Testing; as written it doesn’t do anything to eliminate any hazard and in fact if a hazard is found per the regulation, it is reduced to an asterisk “if one or more final dust wipe tests equals or exceeds the applicable clearance standards, a statement that any dust lead levels that equal or exceed the clearance standards will demonstrate that a lead-based paint hazard is present after the work is completed..”

(2)    to reorient the national approach to the presence of lead-based paint in housing to implement, on a priority basis, a broad program to evaluate and reduce lead-based paint hazards in the Nation’s housing stock;

1. Commercial or Public Buildings; are not only not listed but not mentioned
2. Clearance Testing; as written it doesn’t do anything to Evaluate and Reduce any lead levels

(3)    to encourage effective action to prevent childhood lead poisoning by establishing a workable framework for lead-based paint hazard evaluation and reduction and by ending the current confusion over reasonable standards of care;

1. Commercial or Public Buildings; while you may theoretically be able to say this applies to Public or Commercial buildings, there has not been one study in recent times that even shows that one child has been poisoned this way. You would also run into issues as the second part has been addressed by OSHA, the FDA, and numerous other federal agencies, state agencies & rules on the book
2. Clearance Testing; Please refer to 1B

(4)    to ensure that the existence of lead-based paint hazards is taken into account in the development of Government housing policies and in the sale, rental, and renovation of homes and apartments;

1. Commercial or Public Buildings; are not only not listed but not mentioned
2. Clearance Testing; as written this is covered by the LSHR and not applicable to the RRP

(5)    to mobilize national resources expeditiously, through a partnership among all levels of government and the private sector, to develop the most promising, cost-effective methods for evaluating and reducing lead-based paint hazards;

1. Commercial or Public Buildings; Besides the answer given in 3a, based on your performance on the original RRP, it is unconceivable that it could be listed as promising, cost effective, much less reduce any “lead-based paint activities”
2. Clearance Testing; as written most homeowners are looking at either one or two costly tests that will actually do nothing to reduce lead-based paint hazards (see 1b). While I understand your desire to minimize costs to make a program seem more palpable, let’s be honest here – a normal set of tests will run anywhere from $150 to $300 per visit, depending on where one lives & the number of samples that need to be collected.

(6)    to reduce the threat of childhood lead poisoning in housing owned, assisted, or transferred by the Federal Government; and

1. Commercial or Public Buildings; are not only not listed but not mentioned
2. Clearance Testing; as written this is covered by the LSHR and not applicable to the RRP

(7)    to educate the public concerning the hazards and sources of lead-based paint poisoning and steps to reduce and eliminate such hazards.

1. Wow, wouldn’t that be nice, some real public education on this subject from the EPA, instead of the blank looks & stares from Home Owners & a few choice words from the really upset ones
2. If you actually did your job properly (remember you have had since 1992), the Homeowner if worried, already has the option of choosing a dust clearance test

The Congress finds that— (the three parts that are applicable to these comments)

(3) pre-1980 American housing stock contains more than 3,000,000 tons of lead in the form of lead-based paint, with the vast majority of homes built before 1950 containing substantial amounts of lead-based paint;

1. Commercial or Public Buildings; are not only not listed but not mentioned
2. Clearance Testing;  here we go again with a one size fits all system, no matter what the age, if you do X (including sanding with a HEPA equipped system) you must do Y, while your own numbers show that lead is probably not even present in most of these structures

(5) the health and development of children living in as many as 3,800,000 American homes is endangered by chipping or peeling lead paint, or excessive amounts of lead-contaminated dust in their homes;

1. Commercial or Public Buildings; are not only not listed but not mentioned
2. Clearance Testing; as mentioned above — as written it doesn’t do anything to eliminate any hazard and in fact if a hazard is found per the regulation, it is reduced to an asterisk “if one or more final dust wipe tests equals or exceeds the applicable clearance standards, a statement that any dust lead levels that equal or exceed the clearance standards will demonstrate that a lead-based paint hazard is present after the work is completed..” — So what good does it do?

(6) the danger posed by lead-based paint hazards can be reduced by abating lead-based paint or by taking interim measures to prevent paint deterioration and limit children’s exposure to lead dust and chips;

1. Commercial or Public Buildings; besides not being listed anywhere & having the entire act dedicated to “housing” let’s say you try to stretch this one into “public” or “commercial” buildings. Unlike the typical problem houses – most P&C buildings are cleaned nightly, have ongoing maintenance generally done in off hours and generally require a parent to be present.
2. Clearance Testing; as listed, this proposal does not do any of the above items

Misc. comments on proposed expansion to include Public and Commercial Buildings (RIN 2070–AJ56)

Based off the three requirements of the settlement, 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.

Additional Comments & Articles related to this subject

Misc. comments on Proposed Clearance Testing (RIN 2070–AJ57)

First, I would like to congratulate you on finally adding in one common sense item – 745.82(a) where you allow a Certified Renovator to collect & send in paint chips. This finally allows a Certified Lead Renovator (CLR) to test every substance in the work area, instead of forcing us to automatically follow unnecessary, wasteful and unsafe procedures in all pre78 houses.

Vertical Containment: I really need to ask, has anyone in your study groups has ever worked in construction? Do you realize how silly, expensive & unnecessary this proposal is in over 90% of the cases out there? If you would like to mandate Vertical Containment, let us specifically target the actual trouble areas – namely those buildings within the “closed windows & doors” area that cannot be closed, or those that are hand scraping at a height greater than the distance to the property line. If someone is sanding with a HEPA equipped sander, you will not be finding chips or dust being blown everywhere. If someone is removing siding, deck boards, etc… the issue has already been addressed with not only the regular plastic but also the cleanup procedures already required.    

I think you overlooked a section when you wrote this piece, namely 745.61 (c) “Nothing in this subpart requires the owner of property(ies) subject to these standards to evaluate the property(ies) for the presence of lead-based paint hazards or take any action to control these conditions if one or more of them is identified.” Needless to say, mandating a third party Clearance Test is contrary to your own regulation.

One item I found very telling is the final quote in your proposal is that “Carpet in the housing is usually removed as part of the abatement because it is harder to clean. Uncarpeted floors that have not been replaced during the abatement may need to be refinished or sealed in order to achieve clearance. Abatements have only one purpose—to permanently eliminate lead-based paint or lead-based paint hazards.” As quoted in 1b above, what good does this test accomplish if it is destined for failure from the beginning? The only thing I see this accomplishing is giving the lawyers ammunition for a lawsuit & work to some labs and inspectors. Does it protect or help the contractor, homeowner, tenant or anyone else that is directly affected – nope.

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