Painting Pro Times Regulatory Review: EPA Cuts Deal – Commercial Exterior RRP Postponed

The Environmental Protection Agency (EPA) postponed the timeline for the proposed exterior commercial/public building RRP regulation debacle. Painting Pro Times affirmed and maintains that the current housing RRP rule is based partly on inaccurate science; was poorly written, woefully misrepresents contractor compliance costs, overstates program benefits and does not safeguard all children from lead dust remnant hazards. In addition, the EPA may have failed to establish a genuine need for the over burdensome regulation.

On September 7, the EPA signed an amendment to the settlement with the legal petitioners; Sierra Club, et al., and New York City Coalition to End Lead Poisoning et al for the commercial RRP. The agreement combined the exterior and interior components of the Public and Commercial Buildings Proposal. Basically, the exterior date was moved to coincide with the interior date – “on or before July 1, 2015”. The Associated Builders and Contractors (ABC) news item announcing the deal is here:

It is important to note that the EPA used a sue and settle strategy to compel an artificially urgent timeline onto the original housing RRP rulemaking regulation. Well, since that legal conniving worked, the EPA is using the trick again for the commercial process. Regardless of the checks and balances allowed by the Toxic Substances Control Act (TSCA), which provides authority to the EPA, the agency shoves forward theoretical rules ignoring parts of the TSCA including the proof, fairness and transparency elements.  The ABC legal amendment link is located here:

The rub is that even though the TSCA provides the authority for the EPA to regulate, a need for new or amended regulations must be established. Considering lead as a toxic substance, the EPA’s main power lies in protecting children from dust remnants; sounds reasonable and everyone wants to save kids. However, not all child lead occurrences used in the EPA data were from contractors performing work. Plus, the EPA quietly forgot to measure the actual effectiveness of the Lead Safety in Construction rule when performing lead renovation work for their studies. Yes, exiting federal regulations may have not been followed when the housing RRP data was formulated. Perhaps, it just didn’t fit EPA’s needs. Keep the focus on a designed result and maybe conjure up another impractical obstacle, which small business is obligated to suffer…comply.

For review, we have included two charts below. The first chart indicates that blood lead levels for children aged 1-5 have dramatically trended down without RRP (which began in April of 2010). In just over twenty years (1988-2008), the levels had almost disappeared. Of course, the EPA was not satisfied with the studies showing the blue graphic diamonds blood lead level, so the “safe” blood level was cut in half (earlier this year) after further scientific study (light green triangles). The 2012 triangle projection shows less than 3% of children at risk. Here are some practical, common sense questions: Why is there a need for the extensive RRP housing regulation? And where is the data justifying the need for child lead protection with public/commercial buildings? Will the commercial studies be as shaky and non-transparent as the housing?

And check out the second chart, housing improvement and repair expenditures, in the years 2005 – 2009; peak work was performed with record low blood lead levels and the RRP fiasco did not exist yet. The EPA must have thought, “Peak work, lower blood lead levels, too good to be true so let’s make more rules”.

Remember the Inspector General found that the EPA’s data used “discretion” and some information “would not adequately support a rigorous cost benefit analysis”. The TSCA law requires that the EPA bear the burden of proof to find hazards before developing fair and balanced rules, but it has been a struggle-fest for the EPA to unanimously establish sufficient contractor produced lead remnants affecting children. Why else, would the sue and settle trick be in play, along side all the other rigged (engineered) scientific study, and omitted and “added” information?

It is interesting to note, when the EPA distributed the draft public/commercial RRP rule, the proximity to children concept was critical to the proposed work procedures. With the EPA’s legal mumbo jumbo tactics, Painting Pro Times predicts that the commercial effort will try to move away from the child protection focus. The September 7 amendment attempts to transfer the justification to an easier, substantially lower standard stating that unless the EPA concludes “…renovation activities in pre-1978 public and commercial buildings do not create a lead-based paint hazard…” the regulation will be implemented. What happened to saving the kids? Maybe someone should cut a deal to sue the EPA for twisting and distorting RRP need.

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