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Regulatory Review – Paint Remover: EPA Takes Aim at Small Business

On May 10, the EPA announced that a new regulation is about to be enacted for MC and NMP: two essential chemicals in paint removers. This is not good. The decision to regulate chemical paint removal is based on flawed assumptions, much like the RRP fiasco.

How did we get here?

The current rulemaking system favors the Agency in an unfair way as compared to small business. The EPA was granted authority to regulate chemicals by the Toxic Substances Control Act (TSCA), which included checks and balances, along with the idea that small business be allowed an active role in regulation development. Pro-regulatory advocates argued that the process was too slow and old so the TSCA was overhauled (in 2016). The EPA is granted power by congressional vote…a law.

The new law is called the Frank R. Lautenberg Chemical Safety for the 21st Century Act. There were many proposed versions, but by June 2016 the law went way beyond the “update” idea. The law gives the EPA unparalleled power to make rules. Small business consideration is just about wiped out. It was obviously written by EPA advocate lawyers and allows the agency some pretty unreasonable, if not crazy things.

For starters, unlike other most federal agencies, under the new law when the EPA issues financial penalties/fines, the agency keeps the money. Do not stop at the US treasury. Instead, unelected bureaucrats that are largely unaccountable and faceless to voters pocket the money for their workplace. To some extent, this un-American process allows the EPA to self-fund.

Also, the new law permits the EPA “discretion” to define risks and how risks are looked at. Basically, the law allows the agency to “stage” or engineer risk assessment situations and then measure the risks occurred. The stage is set without small business input. So the EPA gets to decide on the “risk evaluation” process when looking at a given chemical. “News alert”…the experiment/analysis will almost always favor “rule justification”. Infamously, the agency followed a similar process to enact the RRP rule.

Remember one RRP risk assessment: open power grinding on a 1940s lead based paint project where the EPA labeled power sanding“typical” repaint preparation. First, grinding off paint is not typical prep; it is removal. Second, at the time of the agency’s assessment, they did NOT follow OSHA regulations. The EPA measured open grinding of lead based paint; no containment; no HEPA vacuums…not even a dropcloth for covering the ground.

The risk assessment was a staged, rigged “science” deal. The lead dust remnant readings from the grinding were flawed; did not reflect reality or follow current OSHSA rules. The process was set-up to astronomically inflate the lead dust risk. That and more happened under the old TSCA law.

Imagine how the books will be cooked under the EPA’s new lawyered up, unrestrained power law?

Bureaucratic Bullying on Paint Professionals

Apparently, first at bat is paint removers. According to last year’s draft regulation, the agency is outlawing Methylene Chloride (MC) EXCEPT for two groups. The furniture re-finishing industry – gets a ten year sunset. The furniture strippers get ten more years to figure another way to do the job.

The other group is something the EPA calls “National Security” concerns. We assume this means the military, police, FBI, CIA, and Homeland Security type organizations. For paint professionals, when mechanical removal – sandblasting or power tooling is not practical – chemical removal is the way to go. This is especially true for two component/catalyzed coatings common on ships, tanks and other industrial/specialized equipment/structures. MC is the most effective paint/coating stripper known for some of these situations. It is essentially dust free, has a long dwell time and does not damage most substrates. Also, MC works well on metals, like the copper connections to steel on the Statue of Liberty (1986 renovation project included MC and the worked was performed by professionals).

The government gets to use as much MC as it likes and forever. Not so much for Small business. Here is the not so funny thing that happened on the way to forum; many government paint/coating removal projects are performed by paint professionals, which are almost all small businesses.

Did we mention crazy in the same sentence as the EPA? For this regulation, paint remover “risk assessment” categories were established (you know made up). The agency put professional painters in the same “risk” category as homeowner/consumers. So when it comes to the government, paint professionals can work with MC. But if not for Uncle Sam, the EPA is saying MC is too risky for paint professionals. Apparently, the agency knows best. And under the new law, the agency is not “legally required” to develop rules with direct input from small business.

By the way, the EPA budget is $8 billion+ per year. There are no paint and coating application companies that big and only three paint manufacturers worldwide that are bigger: AzkoNobel; PPG & Sherwin-Williams. when we consider most small businesses, the agency makes rules with little or no thought for 95% of American business.



Maybe the EPA should consider small business when making regulations? And at the same time, replace “discretion” and “engineered risk assessments” with actual science based in reality. Or at least not lump professionals in with consumers.

BOTTOM LINE

There is little justification for the paint remover rule.

Paint professionals should demand that small business be allowed TRANSPARENT and ACTIVE input to EPA “risk assessment” set up and throughout the rulemaking process. No rules should allow the government “discretion” or special privilege to continue using a chemical the agency has deemed too large of risk for professionals.

What should we do?

Time to speak out: STOP the EPA from taking away one of the most effective chemicals (MC) for paint and coating removal. Sound the alarm and write, email, voicemail and verbally urge your congressional people, the EPA Administrator, and the White House to stop the EPA from enacting the paint remover regulation until small business gets direct/active/documented involvement.

And don’t forget to stock up on MC.

This is a bad deal and rates as poorly as the unneeded, overlapping RRP rule. Seemingly and again, the over funded bureaucracy is using flawed science for rule justification. Enough with the righteous approach to rulemaking; inaccurate means do not justify the end. Time to stop the “we know what is best” for small business methodology. Enough already with the “crazy” EPA risk assessments and “engineered” results pushing more and more regulations.

No more lawyering up and attacking paint professionals and small business. At the very minimum, the EPA should temper back to a fair and reasonable process. At best, the budget should be cut by a third (it is colossal, so big it allows the agency to delve into duplicative efforts and have way too many lawyers onboard), penalty funds should go to the US treasury (no self-funding) and the “updated” law must be CHANGED to command material small business input.


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