Years into the process, the U.S. Environmental Protection Agency has abruptly shelved its plan to impose controversial lead-safe rules on commercial and public-works projects.
The EPA’s long-running push to expand the controversial Lead Safe Renovation, Repair and Painting (RRP) rule—now in force for residential work—will be delayed at least until mid-2015, and probably much longer.
National real-estate groups petitioned EPA in 2010 to delay the lead rule for commercial and public buildings. A pending Senate bill seeks the same.
The deferral is a major victory for commercial and public-works contractors and facility owners, who have long argued that the EPA lacks adequate data to impose a sweeping new round of potentially costly rules.
EPA’s Office of the Inspector General bolstered that criticism earlier this year, in a report that assailed the agency's economic analysis of the residential rule.
The new plan for the Commercial and Public Buildings RRP rule is contained in a little-publicized, recently revised amendment to a 2009 federal-court settlement agreement by the EPA, the Sierra Club, and the New York City Coalition to End Lead Poisoning.
In the 2009 settlement—signed months before the residential rule was implemented—EPA agreed to initiate RRP-type rulemaking to address public and commercial renovation if that work was shown to pose lead-based paint hazards.
National Park Service
|Expansion of the rule may well affect projects like this 2010 lead-paint removal work at Dinosaur National Monument.|
The new amendment combines what had been separate rulemakings for interior and exterior commercial and public buildings into a single rule. The document also pushes back the deadlines for that rule.
Under the amendment, EPA must issue a Notice of Proposed Rulemaking that encompasses all public and commercial interiors and exteriors by July 1, 2015. EPA must also issue a final rule by Jan. 1, 2017.
However, if the commercial/public rule follows the troubled path of its residential predecessor, an implementation date could be several years after that.
The Road to Expansion
The RRP Rule for residential contractors was approved in April 2008 and took effect two tumultuous years later.
That rule mandates lead-safe certification and work practices for contractors performing renovation, repair and painting projects that disturb more than six feet of lead-based paint in most pre-1978 homes, child-care facilities and schools.
|The residential rule was designed to protect home dwellers and occupants of child-care facilities. Tens of thousands of homes built before 1978 still contain lead paint.|
Just days after the residential rule took effect in 2010, EPA began the process to introduce two additional rules to expand the program, issuing an Advance Notice of Proposed Rulemaking for an RRP proposal for commercial and public exteriors.
Criticisms of the public and commercial RRP rule mirror those that have dogged the residential measure from the start. The primary accusation: EPA did not have enough information on the cost of the plan.
Business groups weren’t the only ones making that point, either. In a July 2012 report, EPA’s Office of the Inspector General concluded that EPA’s economic analysis before implementing the residential rule was limited in that:
• The estimated cleaning and containment work practice costs to comply with the rule were not based on a statistically valid survey.
• EPA did not quantitatively analyze or include other costs outlined in Agency guidance, such as costs due to increased consumer prices, costs of unemployment, and costs to markets indirectly affected by the rule.
• EPA did not include the cost to renovation businesses of securing additional liability insurance.
• EPA recommended additional work practices in a training program that, while not required by the rule, would likely result in additional cost because the regulated community would view these practices as required.
The Inspector General recommended that the agency reexamine the costs and benefits of the lead rule and the 2010 amendment to determine whether it should be modified, streamlined, expanded or repealed.
Under the new settlement agreement, EPA will collect more data, hold public information meetings, and seek input from a small business advocacy review panel before developing a commercial/public works rule.
Critics Have Their Day
RRP’s critics hailed the rule’s delay. The National Association of Home Builders and the Associated Builders and Contractors applauded the postponement while continuing to express concern over the residential rule.
Sen. James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works, said the deferral would give EPA “enough time to collect more data and ensure that it has a clear understanding of how commercial and public buildings are renovated and repaired, or where potential lead hazards may occur.”
In March, Inhofe introduced the Lead Exposure Reduction Amendments Act of 2012. The measure, similar to bills introduced in 2010, takes a sweeping run at lead regulations. The bill, now before Inhofe’s committee, would:
• Amend the Toxic Substances Control Act (TSCA) to exclude from the definition of “abatement” renovations and repairs that only “incidentally result in a reduction or elimination of lead-based paint hazards”;
• Change the definition of lead-based paint; and
• Require EPA to complete a “lead-based paint certification study” at least one year before proposing an RRP-type rule for public or commercial buildings.
In an April 15, 2011, letter to EPA Administrator Lisa Jackson, Inhofe and nine other Republicans accused EPA of acting without sufficient understanding of the problem.
Real-estate organizations had also called the plan half-baked.
In a December 2010 letter to EPA, 15 national real estate organizations wrote: “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.”