RECEIVED 

OPPT C8IC 

2013 APR -U AH 9:1*2 

ASSOCIATED GENERAL CONTRACTORS 

OF NEW YORK STATE, LLC The New York State Chapter of the 

Associated General Contractors of America 

Lead; Renovation, Repair and Painting Program for Public and Commercial Buildings 

EPA Docket ID Number: EPA-HQ-OPPT-2010-0173 

APR 0 3 2013 

Following is a synopsis of comments received from Membership of Associated General 

Contractors of New York State and the AGC NYS Safety Committee regarding EPA's proposed Lead; 

Renovation, Repair and Painting Program for Public and Commercial Buildings. The AGC NYS is a 

statewide trade association representing over 600 general contractors and construction managers 

performing over $6 billion in services for public and private owners. AGC NYS is the largest trade 

association in the State of New York and comprised of open shop and union contractors. The AGC NYS 

Safety Committee is made up of building and highway contractor safety directors from across the State of 

New York. The group size varies but has as many as 70 companies represented that meet three times a 

year. 

Most Members of the AGC of New York State are routinely involved in renovation and demolition 

activities that result in the disturbance of lead containing paint. Some of our contractors are directly 

involved with the activities that create the disturbance and other Member contractors serve as a general 

contractor who has hired a subcontractor to perform the work. In either case, this issue is not new to them 

and there are regulations that must be followed. 

The EPA, HUD, and OSHA all have regulations covering the disturbance of lead and it is important to 

note the differences in the existing regulations. EPA and HUD regulations may apply depending on the 

nature of the project; if the project is considered to be "target housing" or a "child occupied facility"; and 

if the paint is considered to be "lead containing" as defined by these agencies. The EPA defines paint as 

"lead based paint" if the paint chip sample contains >.5% lead or if the XRF reading is 1.0 or more. 

OSHA's 29 CFR 1926.62 Standards, however, consider paint to be "lead containing coatings" if there 

is any detectable amount of lead in the sample. OSHA also only recognizes chip samples as the method 

to be used to test for lead. XRF and swab testing are not an acceptable means of sampling for lead 

according to the Occupational Safety and Health Administration. Chip samples must be tested by an 

accredited laboratory and again, if the lead content is below >.5% or 1.0 it would not be considered "lead 

containing" paint as defined by EPA or HUD, but it would now trigger many OSHA requirements. 

Under the current OSHA regulations, the presence of any amount of lead, even below EPA thresholds 

for "lead based paint", requires that the contractor disturbing the lead conduct an assessment. The 

employees performing the assessment are provided with the appropriate personal protective equipment for 

the task being performed and actual exposure to airborne lead is measured. OSHA Standard 1926.62 (d) 

covers the following for employee protection during exposure assessments. 

Existing Regulations 

1926.62 (d)Exposure assessment. 

CONTAINS NO CB! MAR 2 8 2013 

10 AIRLINE DFUVE, SUITE 203 • ALBANY, NEW YORK 12205 

518-456-1134 P • 518-456-1198 F • www.agcnys.org 
RECEIVED 

OPPT CB1C 

2013 APRAH 9: kZ 

1926.62(d)(1) General. 

1926.62(d)(l)(i) Each employer who has a workplace or operation covered by this standard shall initially 

determine if any employee may be exposed to lead at or above the action level. 

1926.62(d)(1)(H) For the purposes of paragraph (d) of this section, employee exposure is that exposure 

which would occur if the employee were not using a respirator. 

1926.62(d)(l)(iii) With the exception of monitoring under paragraph (d)(3), where monitoring is required 

under this section, the employer shall collect personal samples representative of a full shift including at 

least one sample for each job classification in each work area either for each shift or for the shift with the 

highest exposure level. 

1926.62(d)(l)(iv) Full shift personal samples shall be representative of the monitored employee's regular, 

daily exposure to lead. 

1926.62(d)(2) Protection of employees during assessment of exposure. 

1926.62(d)(2)(i) With respect to the lead related tasks listed in this paragraph (d)(2)(i) of this section, 

where lead is present, until the employer performs an employee exposure assessment as required in 

paragraph (d) of this section and documents that the employee performing any of the listed tasks is not 

exposed above the PEL, the employer shall treat the employee as if the employee were exposed above the 

PEL, and not in excess of ten (10) times the PEL, and shall implement employee protective measures 

prescribed in paragraph (d)(2)(v) of this section. The tasks covered by this requirement are: 

1926.62(d)(2)(i)(A) Where lead containing coatings or paint are present: Manual demolition of structures 

(e.g, dry wall), manual scraping, manual sanding, heat gun applications, and power tool cleaning with 

dust collection systems; . 

1926.62(d)(2)(i)(B) Spray painting with lead paint 

1926.62(d)(2)(H) In addition, with regard to tasks not listed in paragraph (d)(2)(i), where the employer has 

any reason to believe that an employee performing the task may be exposed to lead in excess of the PEL, 

until the employer performs an employee exposure assessment as required by paragraph (d) of this section 

and documents that the employee's lead exposure is not above the PEL the employer shall treat the 

employee as if the employee were exposed above the PEL and shall implement employee protective 

measures as prescribed in paragraph (d)(2)(v) of this section. 

1926.62(d)(2)(iii) With respect to the tasks listed in this paragraph (d)(2)(iii) of this section, where lead is 

present, until the employer performs an employee exposure assessment as required in paragraph (d) of this 

section, and documents that the employee performing any of the listed tasks is not exposed in excess of 

500 ug/m(3), the employer shall treat the employee as if the employee were exposed to lead in excess of 

500 ug/m(3) and shall implement employee protective measures as prescribed in paragraph (d)(2)(v) of 

this section. Where the employer does establish that the employee is exposed to levels of lead below 500 

ug/m(3)s the employer may provide the exposed employee with the appropriate respirator prescribed for 

such use at such lower exposures, in accordance with Table 1 of this section. The tasks covered by this 

requirement are: 

1926.62(d)(2)(iii)(A) Using lead containing mortar; lead burning 
1926.62(d)(2)(iii)(B) Where lead containing coatings or paint are present: rivet busting; power tool 

cleaning without dust collection systems; cleanup activities where dry expendable abrasives are used; and 

abrasive blasting enclosure movement and removal. 

1926.62(d)(2)(iv) With respect to the tasks listed in this paragraph (d)(2)(iv) of this section, where lead is 

present, until the employer performs an employee exposure assessment as required in paragraph (d) of this 

section and documents that the employee performing any of the listed tasks is not exposed to lead in 

excess of 2,500 ug/m(3) (50 x PEL), the employer shall treat the employee as if the employee were 

exposed to lead in excess of2,500 ug/m(3) and shall implement employee protective measures as 

prescribed in paragraph (d)(2)(v) of this section. Where the employer does establish that the employee is 

exposed to levels of lead below 2,500 ug/m(3), the employer may provide the exposed employee with the 

appropriate respirator prescribed for use at such lower exposures, in accordance with Table I of this 

section. Interim protection as described in this paragraph is required where lead containing coatings or 

paint are present on structures when performing: 

1926.62(d)(2)(iv)(A) Abrasive blasting, 

1926.62(d)(2)(iv)(B) Welding, 

1926.62(d)(2)(iv)(C) Cutting, and 

1926.62(d)(2)(iv)(D) Torch burning. 

1926.62(d)(2)(v) Until the employer performs an employee exposure assessment as required under 

paragraph (d) of this section and determines actual employee exposure, the employer shall provide to 

employees performing the tasks described in paragraphs (d)(2)(i), (d)(2)(ii), (d)(2)(iii) and (d)(2)(iv) of 

this section with interim protection as follows: 

1926.62(d)(2)(v)(A) Appropriate respiratory protection in accordance with paragraph (f) of this section. 

1926.62(d)(2)(v)(B) Appropriate personal protective clothing and equipment in accordance with 

paragraph (g) of this section. 

1926.62(d)(2)(v)(C) Change areas in accordance with paragraph (i)(2) of this section. 

1926.62(d)(2)(v)(D) Hand washing facilities in accordance with paragraph (i)(5) of this section. 

1926.62(d)(2)(v)(E) Biological monitoring in accordance with paragraph Q)(l)(i) of this section, to 

consist of blood sampling and analysis for lead and zinc protoporphyrin levels, and 

1926.62(d)(2)(v)(F) Training as required under paragraph (l)(l)(i) of this section regarding 29 CFR 

1926.59, Hazard Communication; training as required under paragraph (l)(2)(iii) of this section, 

regarding use of respirators; and training in accordance with 29 CFR 1926.21, Safety training and 

education. 

1926.62(d)(3) Basis of initial determination. 
1926.62(d)(3)(i) Except as provided under paragraphs (d)(3)(iii) and (d)(3)(iv) of this section the 

employer shall monitor employee exposures and shall base initial determinations on the employee 

exposure monitoring results and any of the following, relevant considerations: 

1926.62(d)(3)(i)(A) Any information, observations, or calculations which would indicate employee 

exposure to lead; 

1926.62(d)(3)(i)(B) Any previous measurements of airborne lead; and 

1926.62(d)(3)(i)(C) Any employee complaints of symptoms which may be attributable to exposure to 

lead. 

1926.62(d)(3)(a) Monitoring for the initial determination where performed may be limited to a 

representative sample of the exposed employees who the employer reasonably believes are exposed to the 

greatest airborne concentrations of lead in the workplace. 

1926.62(d)(3)(iii> Where the employer has previously monitored for lead exposures, and the data were 

obtained within the past 12 months during work operations conducted under workplace conditions closely 

resembling the processes, type of material, control methods, work practices, and environmental conditions 

used and prevailing in the employer's current operations, the employer may rely on such earlier 

monitoring results to satisfy the requirements of paragraphs (d)(3)(i) and (d)(6) of this section if the 

sampling and analytical methods meet the accuracy and confidence levels of paragraph (d)(10) of this 

section. 

1926.62(d)(3)(iv) Where the employer has objective data, demonstrating that a particular product or 

material containing lead or a specific process, operation or activity involving lead cannot result in 

employee exposure to lead at or above the action level during processing, use, or handling, the employer 

may rely upon such data instead of implementing initial monitoring. 

1926.62(d)(3)(ivKA) The employer shall establish and maintain an accurate record documenting the 

nature and relevancy of objective data as specified in paragraph (n)(4) of this section, where used in 

assessing employee exposure in lieu of exposure monitoring. 

1926.62(d)(3)(ivKB^ Objective data, as described in this paragraph (d)(3)(iv) of this section, is not 

permitted to be used for exposure assessment in connection with paragraph (d)(2) of this section. 

1926.62(d)(4) Positive initial determination and initial monitoring. 

1926.62(d)(4)(i) Where a determination conducted under paragraphs (d)(1), (2) and (3) of this section 

shows the possibility of any employee exposure at or above the action level the employer shall conduct 

monitoring which is representative of the exposure for each employee in the workplace who is exposed to 

lead. 

1926.62(d)(4)(H) Where the employer has previously monitored for lead exposure, and the data were 

obtained within the past 12 months during work operations conducted under workplace conditions closely 

resembling the processes, type of material, control methods, work practices, and environmental conditions 

used and prevailing in the employer's current operations, the employer may rely on such earlier 

monitoring results to satisfy the requirements of paragraph (d)(4)(i) of this section if the sampling and 

analytical methods meet the accuracy and confidence levels of paragraph (d)(10) of this section. 
1926.62(d)(5) Negative initial determination. Where a determination, conducted under paragraphs (d)(1), 

(2), and (3) of this section is made that no employee is exposed to airborne concentrations of lead at or 

above the action level the employer shall make a written record of such determination. The record shall 

include at least the information specified in paragraph (d)(3)(i) of this section and shall also include the 

date of determination, location within the worksite, and the name and social security number of each 

employee monitored. 

1926.62(d)(6) Frequency. 

1926.62(d)(6)(i) If the initial determination reveals employee exposure to be below the action level 

further exposure determination need not be repeated except as otherwise provided in paragraph (d)(7) of 

this section. 

1926.62(d)(6)(ii) If the initial determination or subsequent determination reveals employee exposure to be 

at or above the action level but at or below the PEL the employer shall perform monitoring in accordance 

with this paragraph at least every 6 months. The employer shall continue monitoring at the required 

frequency until at least two consecutive measurements, taken at least 7 days apart, are below the action 

level at which time the employer may discontinue monitoring for that employee except as otherwise 

provided in paragraph (d)(7) of this section. 

1926.62(d)(6)(iii) If the initial determination reveals that employee exposure is above the PEL the 

employer shall perform monitoring quarterly. The employer shall continue monitoring at the required 

frequency until at least two consecutive measurements, taken at least 7 days apart, are at or below the PEL 

but at or above the action level at which time the employer shall repeat monitoring for that employee at 

the frequency specified in paragraph (d)(6)(ii) of this section, except as otherwise provided in paragraph 

(d)(7) of this section. The employer shall continue monitoring at the required frequency until at least two 

consecutive measurements, taken at least 7 days apart, are below the action level at which time the 

employer may discontinue monitoring for that employee except as otherwise provided in paragraph (d)(7) 

of this section. 

1926.62(d)(7) Additional exposure assessments. Whenever there has been a change of equipment, 

process, control, personnel or a new task has been initiated that may result in additional employees being 

exposed to lead at or above the action level or may result in employees already exposed at or above the 

action level being exposed above the PEL, the employer shall conduct additional monitoring in 

accordance with this paragraph. 

1926.62(d)(8) Employee notification. 

1926.62(d)(8)(i) The employer must, as soon as possible but no later than 5 working days after the receipt 

of the results of any monitoring performed under this section, notify each affected employee of these 

results either individually in writing or by posting the results in an appropriate location that is accessible 

to employees. 

1926.62(d)(8)(ii) Whenever the results indicate that the representative employee exposure, without regard 

to respirators, is at or above the PEL the employer shall include in the written notice a statement that the 

employees exposure was at or above that level and a description of the corrective action taken or to be 

taken to reduce exposure to below that level. 
1926.62(d)(9) Accuracy of measurement. The employer shall use a method of monitoring and analysis 

which has an accuracy (to a confidence level of 95 percent) of not less than plus or minus 25 percent for 

airborne concentrations of lead equal to or greater than 30 ug/m(3). 

The above noted requirements are not required by the EPA. This component of the OSHA regulation 

is of great importance as the expansion of RRP to commercial and public buildings is being considered. 

Employers are required to perform the assessment, protect their employees during the assessment and 

obtain the assessment results to determine actual employee exposure to respirable dust during renovation 

and demolition activities. Employers are able to determine to what level, if any, their employees are 

exposed to lead containing dust. The assessment results also allow an employer to identify if the work 

practices being used during the assessment (ventilation, water, etc) are effective in minimizing exposure 

to their employees. 

EPA RRP expansion is geared toward protecting the public. If employees that are actually performing 

the work are not over exposed, why would one assume those not associated with the project would be? 

EPA RRP will not require such monitoring and there is no evidence that demonstrates that additional 

regulations are necessary to protect the public in commercial or public buildings where this type of work 

is being performed. 

The experience of our Members has consistently demonstrated that good work practices, housekeeping 

and the use of HEP A vacuum systems can minimize actual employee exposure to levels that are below the 

OSHA permissible exposure limit of 50ug/m3. Contractors understand the hazards associated with lead 

exposure and OSHA regulations require that these assessments are done. OSHA standards dictate that 

"engineering and work practice controls be utilized to "reduce and maintain employee exposure to lead 

to or below the permissible exposure limit to the extent that such controls are feasible". 

OSHA Standard 1926.62(e)(2) requires a Compliance program prior to the commencement of any job 

where lead is present. EPA RRP does not require such a program. The Compliance program is required 

to minimize the exposure to lead in the workplace and has stringent components. 29 CFR 1926.62(e) 

covering Methods of Compliance states the following: 

1926.62(e) Methods of compliance 

1926.62(e)(1) Engineering and work practice controls. The employer shall implement engineering and 

work practice controls, including administrative controls, to reduce and maintain employee exposure to 

lead to or below the permissible exposure limit to the extent that such controls are feasible. Wherever all 

feasible engineering and work practices controls that can be instituted are not sufficient to reduce 

employee exposure to or below the permissible exposure limit prescribed in paragraph (c) of this section, 

the employer shall nonetheless use them to reduce employee exposure to the lowest feasible level and 

shall supplement them by the use of respiratory protection that complies with the requirements of 

paragraph (f) of this section. 

1926.62(e)(2) Compliance program. 

1926.62(e)(2)(i) Prior to commencement of the job each employer shall establish and implement a written 

compliance program to achieve compliance with paragraph (c) of this section. 

1926.62(e)(2)(ii) Written plans for these compliance programs shall include at least the following: 
1926.62(e)(2)(ii)(A) A description of each activity in which lead is emitted; e.g. equipment used, material 

involved, controls in place, crew size, employee job responsibilities, operating procedures and 

maintenance practices; 

1926.62(e)(2)(ii)(B) A description of the specific means that will be employed to achieve compliance and, 

where engineering controls are required engineering plans and studies used to determine methods selected 

for controlling exposure to lead; 

1926.62(e)(2)(ii)(C) A report of the technology considered in meeting the PEL; 

1926.62(e)(2)(ii)(D) Air monitoring data which documents the source of lead emissions; 

1926.62(e)(2)(ii)(E) A detailed schedule for implementation of the program, including documentation 

such as copies of purchase orders for equipment, construction contracts, etc.; 

1926.62(e)(2)(H)(F) A work practice program which includes items required under paragraphs (g), (h) and 

(i) of this section and incorporates other relevant work practices such as those specified in paragraph 

(e)(5) of this section; 

1926.62(e)(2)(ii)(G) An administrative control schedule required by paragraph (e)(4) of this section, if 

applicable; 

1926.62(e)(2)(ii)(H) A description of arrangements made among contractors on multi-contractor sites 

with respect to informing affected employees of potential exposure to lead and with respect to 

responsibility for compliance with this section as set-forth in 1926.16. 

1926.62(e)(2)(ii)(I) Other relevant information. 

1926.62(e)(2)(iii) The compliance program shall provide for frequent and regular inspections of job sites, 

materials, and equipment to be made by a competent person. 

1926.62(e)(2)(iv) Written programs shall be submitted upon request to any affected employee or 

authorized employee representatives, to the Assistant Secretary and the Director, and shall be available at 

the worksite for examination and copying by the Assistant Secretary and the Director. 

1926.62(e)(2)(v) Written programs must be revised and updated at least annually to reflect the current 

status of the program. 

1926.62(e)(3) Mechanical ventilation. When ventilation is used to control lead exposure, the employer 

shall evaluate the mechanical performance of the system in controlling exposure as necessary to maintain 

its effectiveness. 

1926.62(e)(4) Administrative controls. If administrative controls are used as a means of reducing 

employees TWA exposure to lead, the employer shall establish and implement a job rotation schedule 

which includes: 

1926.62(e)(4)(i) Name or identification number of each affected employee; 
p. 8 

1926.62(e)(4)(H) Duration and exposure levels at each job or work station where each affected employee 

is located; and 

1926.62(e)(4)(iii) Any other information which may be useful in assessing the reliability of administrative 

controls to reduce exposure to lead. 

1926.62(e)(5) The employer shall ensure that, to the extent relevant, employees follow good work 

practices such as described in Appendix B of this section. 

It is clear that OSHA's Methods of Compliance requirements cover all employees working at the 

project. Written plan requirements cover all aspects that would affect the employees or for that matter, 

the public. EPA RRP does not address issues identified in the OSHA's compliance program 

requirements. Existing OSHA regulations are effective, and as a result, protect the public from lead based 

hazards. 

It is important to remember that lead dust is heavy and it does not stay airborne for long because it is a 

metal. EPA clean up procedures require poly to be placed on the floor, disposal of all debris in plastic 

bags that are goosed necked, and utilizing a Swiffer-type of a mop repeatedly until it is cleaner than a 

sample template. Once again, the current OSHA regulations are an effective means to manage this issue 

without putting unnecessary and burdensome regulations in place. The OSHA requirements for 

Housekeeping covered in 29 CFR 1926.62(h) provide the most effective means to capture any lead dust 

that remains in the workplace during and after renovation activities are performed. 29 CFR 1926 

Standards covering housekeeping include:. 

1926.62(h)(1) All surfaces shall be maintained as free as practicable of accumulations of lead. 

1926.62(h)(2) Clean-up of floors and other surfaces where lead accumulates shall wherever possible, be 

cleaned by vacuuming or other methods that minimize the likelihood of lead becoming airborne. 

1926.62(h)(3) Shoveling, dry or wet sweeping, and brushing may be used only where vacuuming or other 

equally effective methods have been tried and found not to be effective. 

1926.62(h)(4) Where vacuuming methods are selected, the vacuums shall be equipped with HEPA filters 

and used and emptied in a manner which minimizes the reentry of lead into the workplace. 

1926.62(h)(5) Compressed air shall not be used to remove lead from any surface unless the compressed 

air is used in conjunction with a ventilation system designed to capture the airborne dust created by the 

compressed air. 

OSHA's cleaning procedures are more stringent than what the EPA requires. HEPA vacuums are the 

method of choice and capture 99.97% of the particulates that go through the filter. Contractors that 

perform such renovation or demolition work in public or commercial buildings also create critical barriers 

to separate them from the public during all phases of construction and are actually removing the lead 

hazards that exist. The highest risk to people will be to those that perform the work and OSHA 

regulations cover that as previously noted. 
The scope of renovation and demolition work typically calls for new wall materials, doors, frames, 

floors, etc. All these areas are cleaned on an ongoing basis as the various phases of construction progress. 

The end result is a space that presents less of a lead risk to the public than before the work started. 

Studies conducted by the National Association of Home Builders provide a basis that Renovation, Repair 

and Painting activities do not create lead-based paint hazards, but rather minimize and even eliminate 

such hazards (refer to NAHB, Lead-Safe Work Practices Survey Project Report 2 - Nov. 2006). 

Most often, assessment results are below the OSHA's PEL and the employees performing the work 

can do so without any respiratory protection. AGC NYS Membership conducts these assessments 

whenever there is any lead present because it is the law. Upon request, AGC NYS Membership will 

provide such data. Assessment results demonstrate that airborne dust can be minimized through good 

work practices. Contractors will use specialized tools to control and capture lead dust while performing 

demolition activities and practices such as spot abatement are utilized when torching activities are 

required. 

Expanding the RRP to commercial and public buildings would raise the cost of doing the work and not 

provide any benefit to the public. The projected costs for the Lead: Renovation, Repair, and Painting 

(LRRP) rule were underestimated and expanding RRP seems to be at the point of diminishing returns. An 

article published on August 5th, 2012 on housingZone noted the following: 

On July 25, 2012, The U.S. Environmental Protection Agency's Inspector General reported on the 

findings of an investigation into the agency's economic analysis of the Lead: Renovation, Repair and 

Painting (LRRP) rule. The report determined that The EPA Office of Chemical Safety and Pollution 

Prevention (OCSPP) underestimated the rule's cost and overestimated its benefits. 

Moreover, The EPA Inspector General found that the training manual and subsequent "certified 

renovator " training failed to clearly delineate which lead-safe work practices are mandated and which 

are simply recommendations. 

The report recommended that OCSPP reexamine the costs and benefits of the rule to determine 

whether it should be modified, streamlined, expanded, or repealed in accordance with the Obama 

Administration's directive to reform unnecessary and burdensome regulations. The inspector's report 

further recommends that the EPA revise its training manual to more clearly distinguish which work 

practices are mandatory. 

Bristling at the Inspector General's findings, the OCSPP responded by asserting that it does not intend 

to review its economic analysis, and that it has already addressed issues related to training under the 

lead paint rule. Nevertheless, the report's findings — coupled with numerous complaints voiced by NAHB 

and others regarding the rule's lack of clarity, the absence ofan approved test kit, and more — have put 

added pressure on the EPA to resolve the issues related to this poorly written and implemented rule. 

Similarly, NAHB chairman Barry Rutenberg's recent congressional testimony on inefficient 

government regulations that are harming housing and the economic recovery focused, in part, on the lead 

paint rule and provided further impetus for lawmakers to push the EPA into making the necessary 

revisions. 

The EPA must consider the scope of its authority before proceeding with any regulations. The Toxic 

Substances Control Act clearly limits the Agency's authority to promulgate regulations that govern RRP 
p. 10 

activities in commercial and public buildings. Among other things, EPA must complete a congressionallymandated study of RRP activities in commercial and public buildings to determine the extent to which 

they create lead-based paint hazards before they can proceed with any regulations. 

Excerpts from comments submitted on July 6, 2010, by Thomas C. Jackson on behalf of a coalition, 

including the Associated General Contractors of America, opposing RRP for Commercial and Public 

Buildings are provided below. 

EPA Has Limited Authority to Impose Requirements on RRP Activities in 

Commercial and Public Buildings 

There are several grounds on which the rules contemplated in the ANPRM would exceed the statutory 

authority Congress granted to EPA under Title X. First, the statute gives EPA the authority to issue 

guidelines for work practice standards applicable to RRP activities but does not grant the Agency the 

authority to impose regulatory requirements concerning work practices. In addition, on its face Title X 

provides that EPA can only regulate RRP activities if they are shown to create lead-based paint hazards. 

Finally, the Agency cannot promulgate any regulations governing RRP activities in commercial and 

public buildings until it completes the type of study mandated by Congress. Each of these issues is 

discussed further below. 

A. EPA Lacks Statutory Authority to Adopt Requirements for RRP Activities in Commercial 

and Public Buildings and Can Only Issue Guidelines 

Based on the statute's text, EPA lacks authority under TSCA to promulgate regulations governing 

RRP activities because such requirements would almost certainly be part of work practice standards, 

which can only be the subject of Agency guidelines. The plain language of TSCA Section 402(a)(1) 

authorizes EPA "to ensure that individuals engaged in [lead-based paint] activities are properly trained; 

that training programs are accredited; and that contractors engaged in such activities are certified''' 15 

U.S.C. § 2682(a)(1) (emphasis added). The statute also grants EPA the authority to create standards for 

"lead-based paint activities," which are defined in the context of commercial buildings, public buildings 

constructed before 1978, bridges and other structures to include "identification of lead-based paint and 

materials containing lead-based paint, deleading, removal of lead from bridges, and demolition." 15 

U.S.C. § 2682(b)(1). Work involving renovation, repair and painting is not included under the "lead-based 

paint activities" definition. 

In enacting Section 402(c), Congress was careful to distinguish between lead-based paint activities and 

RRP activities - and that section does not authorize EPA to promulgate regulations affecting the work 

practice standards for RRP in commercial and public buildings. Instead, EPA is authorized to 

"promulgate guidelines for the conduct" of RRP activities and to require certification of RRP firms that 

are engaged in activities that create lead-based hazards. 15 U.S.C. § 2682(c)(1) and (3). Although the 

statute also requires EPA, after undertaking a study, to revise the regulations developed for abatement and 

other lead-based paint activities to apply to RRP activities, Congress intended that EPA would apply the 

appropriate certification requirements developed in connection with lead-based paint activities to RRP 

contractors but that work practice standards would remain the subject of guidelines, not regulations. 15 

U.S.C. § 2682(c)(3). See, e.g., Spears v. U.S., 129 S. Ct. 840, 842 (2009) ("'[T]he cocaine Guidelines, like 

all other Guidelines, are advisory only. " (emphasis added)), (quoting Kimbrough v. U.S., 128 S. Ct. 558, 

560 (2007)); Brock v. Cathedral Bluffs Shale Oil Co., et al., 796 F.2d 533, 537 (D.C. Cir. 1986) ("'The 

critical distinction between a substantive rule and a general statement of policy is the different practical 

effect that these two types of pronouncements have in subsequent proceedings....A properly adopted 
p. 11 

substantive rule establishes a standard of conduct which has the force of law... .A general statement of 

policy, on the other hand, does not establish a "binding norm.'"), (quoting Pacific Gas & Electric Co. v. 

FPC, 506 F.2d 33, 38 (D.C. Cir. 1974)). 

This plain reading of the statute is supported by the fact that the provision requiring EPA to engage in 

a study prior to promulgating regulations for RRP activities (Section 402(c)(2)) is entitled "Study of 

certification" and the provision concerning subsequent promulgation of regulations (Section 402(c)(3)) is 

headed "Certification determination." See I.N.S. v. National Center for Immigrants' Rights, Inc., 502 U.S. 

183 (1991) (section titles can serve as aids to the construction of statutory language where the language is 

ambiguous); see also Bell v. Reno, 218 F.3d 86 (2d Cir. 2000) (the title of a section is an indication of its 

meaning). In contrast to the preceding provision concerning guidelines for work practice standards, the 

focus of Section 402(c)(2) and (3) is the certification of contractors. Therefore, the focus of rulemaking 

development under Section 402(c)(3) must be on certifications of contractors. Any attempt by EPA to 

require contractors to comply with work practice standards in public and commercial buildings is beyond 

EPA's statutory authority. 

Based on EPA's statements in the ANPRM, it appears that the Agency is considering implementing 

regulations similar to the Residential RRP Rule at least for external RRP activities at commercial and 

public buildings. See 75 Fed. Reg. at 24855. Under its statutory authority, EPA can only issue such 

standards as guidelines and not regulatory requirements. 

B. EPA Lacks Authority to Regulate Activities Unless Those Activities Disturb Lead and 

Create a Lead-Based Paint Hazard 

The regulations contemplated in the ANPRM also exceed EPA's statutory authority because EPA has 

not established that the RRP activities it seeks to regulate in commercial and public buildings create any 

lead-based paint hazards. TSCA Section 402(c)(3) requires EPA to promulgate regulations with respect to 

RRP activities only where such activities create a lead based paint hazard. The statute does not provide 

specific authorization to EPA to regulate RRP activities that disturb lead but do not create a lead-based 

paint hazard. 15 U.S.C. § 2682(c)(3). Consequently, from that silence EPA lacks authority to regulate 

RRP activities unless they create a lead-based paint hazard. See, e.g., In re Haas, 48 F.3d 1153, 1156 

(11th Cir. 1995) (where Congress knows how to say something but chooses not to, its silence is 

controlling). 

In order to regulate RRP activities in commercial and public buildings, the EPA would need to show 

that such activities create a lead-based paint hazard. Without more information than it currently has 

regarding RRP activities specifically in the commercial and public settings, EPA cannot show that such 

activities create a lead-based paint hazard. Indeed, EPA acknowledges in the ANPRM that it does not 

have enough information to conclude that specific RRP activities in commercial and public buildings 

create a lead^based paint hazard. See IS Fed. Reg. at 24857 and 24859. 

Based on statements in the ANPRM, the EPA apparently plans to draw upon the findings it made in 

the Residential RRP Rule to determine that a lead-based paint hazard is also created by RRP activity in 

commercial and public buildings. See 75 Fed. Reg. at 24856 and 24858 ("EPA requests comment on the 

extent to which [the "Characterization of Dust Lead Levels After Renovation, Repair, and Painting 

Activities" (the "Dust Study") and the Phase I, Environmental Field Sampling Study (the "Phase I 

Study")] should inform EPA's determination on lead-based paint hazards created by renovations on the 

interiors of non-residential buildings.") This reliance, however, is misplaced. There is a lack of evidence 

to support a conclusion that, even in a residential setting, all RRP activities that disturb lead-based paint 
p. 12 

create a lead-based paint hazard. Nor is there a reasonable basis for EPA to extrapolate from either the 

Dust Study or the Phase I Study - both of which were conducted mostly in residential settings - to 

determine that renovations in commercial and public buildings create lead-based paint hazards. 

In any event, as a general matter, most RRP activities either eliminate or reduce the potential for future 

lead-based paint hazards. For example, the Mercatus Report found that "evidence collected [in EPA's 

Study] following the passage of the statute has indicated that lead hazards created by renovation and 

remodeling work are minimal, and RRP work removes chipping and deteriorating paint - two of the 

leading causes of elevated blood-lead levels." See Comments of the Regulatory Studies Program, 

Mercatus Center, George Mason University at 30 (May 25, 2006) ("Mercatus Report"). 

Other studies reach similar conclusions. A study conducted by the National Association of Home 

Builders ("NAHB") explained that "when considering lead dust loading on surfaces throughout a single 

property, results showed that overall all but one of the properties evaluated showed lower levels of lead 

dust when R&R contractors completed the work than when they arrived." NAHB, Lead-Safe Work 

Practices Survey Project Report 2 (Nov. 2006) (the "NAHB Report") (emphasis added). Moreover, the 

Wisconsin Department of Health and Family Services noted that "our experience in Wisconsin is that 

professional renovation is rarely the cause of lead poisoning in children" Wisconsin Department of 

Health and Family Services, Comments: Lead; Renovation, Repair, and Painting Program; Proposed 

Rule (emphasis added). 

In light of these studies, an ample basis exists in the record to conclude that most RRP activities do not 

create lead-based paint hazards, but rather minimize and even eliminate such hazards. As discussed 

above, the statute limits EPA's regulatory authority to those activities that actually create a lead-based 

paint hazard, which means that RRP activities would generally be exempt from EPA's authority under 

Section 402(c)(3). 

Without additional information, such as a study examining different forms of RRP activities 

exclusively in the context of commercial and public buildings, EPA cannot conclude that any specific 

RRP activities create a lead-based paint hazard. Furthermore, to the extent that EPA intends to rely on the 

Dust Study, the Phase I Study, or some other existing study to provide evidence of a lead-based paint 

hazard created by RRP activities in commercial and public buildings, the evidence does not support such 

a conclusion. 

Moreover, before it can move forward EPA must address the fact that it currently cannot determine 

whether any RRP activities in commercial and public buildings create lead-paint hazards because it has 

not yet adopted standards for determining the presence of lead-based paint hazards in commercial and 

public buildings. The lead-based paint hazard regulations previously adopted by the Agency apply only to 

target housing and child-occupied facilities. See 40 C.F.R. § 745.65. Those standards are based on risks of 

exposure to young children. EPA has no rational basis to conclude that residential standards that apply 

where young children may have only minimal exposure are pertinent to commercial settings where young 

children are not routinely present. 

C. EPA Cannot Adopt Regulations Until It Completes the Statute's "Study of Certification" 

Requirements 

In addition to these fundamental limits on its rulemaking activity, and assuming 

arguendo that EPA has authority to issue regulations for RRP activities in commercial and public 

buildings, any such regulations would be premature because EPA has not satisfied the prerequisite of 
p. 13 

conducting a congressionally-mandated study regarding RRP activities. Prior to promulgating any 

regulations involving RRP activities, EPA is required to conduct a "Study of Certification" to determine 

which of the "various types of renovation and remodeling activities disturb lead and create a lead-based 

paint hazard on a regular or occasional basis." 15 U.S.C.§ 2682(c)(2). Thus, EPA cannot promulgate any 

regulations affecting RRP activities until after it has satisfied the "Study of Certification" requirements. 

This statutory requirement to conduct a certification study explicitly applies to commercial buildings and 

public buildings (constructed before 1978). 15 U.S.C. § 2682(c)(2). 

The EPA has not conducted a study that focuses on RRP activities in commercial buildings and public 

buildings constructed before 1978, and the potential of such activities to create lead based paint hazards. 

EPA has requested comments in the ANPRM regarding the extent on which it should rely on previous 

studies it has conducted regarding lead-based paint in residential settings. 75 Fed. Reg. at 24856 and 

24858. These studies include the 2007 Dust Study and the four-part study conducted by EPA between 

1997 and 1999 (the "Study"). EPA cannot rely on such studies as these did not focus on RRP activities in 

commercial buildings and public buildings constructed before 1978. Although the Dust Study may have 

included information on renovations at a school building frequently occupied by children, this is too 

limited of a data set from which to draw any conclusions regarding RRP activities generally in public and 

commercial buildings. 75 Fed. Reg. at 24856. Until it conducts a study that actually focuses on RRP 

activities in commercial and public buildings, it is premature for EPA to contemplate any regulations as it 

does not have the statutory authority to take the type of regulatory action it appears to be contemplating. 

Not only do the studies previously conducted by EPA involve irrelevant subject matter, but, as 

discussed previously, serious doubts exist regarding the methodologies used and the conclusions of the 

studies. One of the most comprehensive critiques of the Study comes from the Mercatus Center at George 

Mason University, which conducted a "careful and independent analysfis] employing contemporary 

economic scholarship to assess [the] rulemaking proposal[] from the perspective of the public interest." 

Mercatus Report at 1. According to the Mercatus Report, the conclusions made in the Study did not match 

its content. Id. at 23. For example, based on a review of EPA's own data, the Mercatus Report concluded 

that: 

* Phases I and II of the Study "failed to find a connection between elevated blood-lead levels and 

workers' exposure to considerable amounts of lead-contaminated dust;" and 

"[T]he Wisconsin [Phase III] study cannot claim that any RRP work increases the risk of elevated 

blood-lead levels in children." 

Id. at 10,21. 

Several members of the peer review panel involved in evaluating the Study also raised concerns about 

various aspects of the methodologies employed. For example, EPA reported that" [i]n regard to the 

Wisconsin blood-lead registry, another issue of concern among the reviewers was how representative the 

registry is of the state population." See Phase IV Report at 1.3.However, the Study failed to adequately 

address these and other concerns. In other words, contrary to EPA's conclusions, the Agency's own Study 

failed to show that unregulated RRP activity contributed to increased blood-lead levels in either RRP 

workers or in children residing in homes that were being remodeled. 

These concerns regarding the accuracy of the conclusions drawn in EPA's previous studies underscore 

the need for EPA to conduct a comprehensive study of RRP activities in commercial and public buildings 

before it seeks to regulate such activities. However, even if there were no doubts regarding the previous 
p. 14 

studies, EPA cannot promulgate any regulations affecting RRP activities in commercial and public 

buildings until after it has satisfied the statutory requirement to conduct a study of these specific activities. 

II. Policy Considerations Related to EPA's Intention to Propose Regulations for RRP Activities 

in Commercial and Public Buildings 

A. EPA Must Consider a Number of Factors in Developing Potential Regulatory 

Requirements for RRP Activities in Commercial and Public Buildings 

As EPA has acknowledged in the ANPRM by its numerous requests for public comments on a wide 

range of issues related to RRP activities in commercial and public buildings, there are numerous factors 

the Agency must consider prior to proposing any regulatory requirements for such activities. These 

factors range from determining how to develop standards that protect different population groups with 

different exposure risks to avoiding conflicts with pre-existing regulatory programs already in place. We 

highlight below a few of the key factors that EPA must consider in any rulemaking process for RRP 

activities in commercial and public buildings. 

1. Issues Presented by Different Sub-Populations 

Any lead-based paint hazard standards developed by EPA to govern RRP activities in commercial and 

public buildings must take into account the potential exposure of different subpopulations to lead-based 

paint in such settings. These exposure patterns are likely very different from the exposure patterns EPA 

has previously encountered in target housing and child-occupied facilities. Furthermore, these exposure 

patterns are likely to vary greatly between different types of commercial and public buildings. For 

example, one might expect to find young children or pregnant women at a "big-box" commercial retail 

establishment more frequently than at a manufacturing facility located in an industrial area. 

EPA has acknowledged that it does not have the information it needs to understand the exposure risks 

to different sub-populations. The ANPRM states that although EPA "has developed research-based daily 

activity patterns for general use in its analyses for children and adults, none of the patterns distinguish 

activities based on the character or ownership of the buildings where activities occur." 75 Fed. Reg. at 

24860. This is exactly the type of information EPA must have before it can attempt to develop regulations 

governing such settings. Without an understanding of the sub-populations likely to be exposed to leadbased paint in any particular building, EPA cannot determine whether a RRP activity presents a leadbased paint hazard. As discussed previously, EPA lacks authority to regulate RRP activities unless they 

create a lead-based paint hazard. 

Any lead-based paint hazard standards must not only allow for a wide variety in exposure patterns of 

different sub-populations, they must also account for the different vulnerability levels to the dangers of 

lead-based paint between such sub-populations. Unless EPA can establish that a single set of lead-based 

paint hazard standards should apply to protect both young children as well as older children and adults, 

the Agency will need to consider adopting different work practice standards for commercial buildings, 

such as office buildings or industrial facilities, where young children are expected to be found only 

infrequently (if at all). Although the ANPRM states it "does not believe that options considered in this 

rulemaking should be limited to those buildings or situations where young children are likely to be 

exposed,5' EPA also acknowledges that it "continues to believe that it is important to emphasize the 

deleterious effects of lead exposure on young children, a sub-population that has long been identified as 

being particularly susceptible to the adverse effects of lead." 75 Fed. Reg. at 24855. Because the EPA 
p. 15 

does not appear to have information suggesting that all RRP activities present the same hazards to all 

population groups, EPA must determine how to structure any standards to address such differing risks. 

In order to better understand both the likelihood of exposure of different sub-populations at specific 

commercial and public locations, and the need to protect the most vulnerable groups differently from 

those least susceptible to lead-based paint hazards, EPA should conduct a comprehensive study analyzing 

RRP activities in different commercial and public buildings. Without this information, it will be 

impossible for the Agency to craft rational standards to address any potential lead-based paint hazards. 

2. Presence of Lead-Based Paint 

In evaluating the need for lead-based paint standards in commercial and public buildings, EPA also 

must consider the fact that, although the use of lead-based paint was not completely banned in all 

industrial and commercial buildings, the use of such paints has been dramatically limited since the 1978 

restriction on the use of lead-based paint in interior and exterior surfaces in housing and other buildings 

and structures used by consumers. See 75 Fed. Reg. at 24856. Industry practice has been to restrict the 

use of lead-based paints in all but the most industrial of uses dating back to the 1970s. EPA acknowledges 

that the prevalence of lead-based paint in commercial and public buildings is an important factor in 

determining whether RRP activities create lead-based paint hazards. 75 Fed. Reg. at 24858. In drafting the 

2008 Residential RRP Rule, EPA had access to two national studies evaluating the prevalence of leadbased paint in target housing and daycare centers. See 75 Fed. Reg. at 24858. EPA, however, does not 

have similar information on the prevalence of lead-based paint in commercial and public buildings. 

This lack of information in yet another area crucial to EPA's deliberations again 

highlights the need for EPA to conduct a comprehensive study of the issues related to lead-based paint in 

public and commercial buildings. Without such a study, it is impossible for EPA to determine how the 

reduced amount of lead-based paint in use at commercial and public buildings affects whether RRP 

activities in such settings create hazards. For example, it may be appropriate to limit the applicability of 

any work practice standards for RRP activities in commercial buildings to commercial structures that 

were built before 1978 (as Congress has done with target housing and public buildings). Alternatively, 

EPA may determine that any application of work practice requirements to RRP activities in commercial 

buildings built after 1978 should be limited to the types of post-1978 commercial buildings where leadbased paint is more likely to be found, such as industrial facilities as opposed to office buildings or retail 

facilities. 

Moreover, EPA should consider the areas within commercial and public buildings that may be more 

likely to have lead-based paint and the potential implications of the patterns for human exposure. For 

example, in office and retail settings the areas occupied by tenants are often renovated when there is a 

changeover in tenants. As a result, today the areas occupied by tenants are less likely to have any leadbased paint even if the building was constructed prior to 1978. Areas that may be more likely to have 

some lead-based pain are the "core areas" where the exposure of any individual would be very limited. 

Therefore renovations in tenant-occupied areas in at least some types of commercial buildings may not 

require significant regulation because the likelihood that lead-based paint is present is very low. These are 

the types of issues that EPA must consider carefully in any rulemaking process. 

3. Consideration of Different Types of RRP Activities 
p. 16 

Similarly, EPA must consider the potentially significant differences between various types of RRP 

activities that may be conducted in commercial buildings. For example, in office buildings, retail facilities 

and other types of commercial buildings it is common for RRP activities to be undertaken in connection 

with a change of occupants, such as when a new business leases a commercial space. However, during 

these types of renovations the only individuals who would be present in the space being renovated would 

be the workers undertaking the renovation, who would be subject to existing Occupational Safety and 

Health Administration ("OSHA") regulations. It may be appropriate to establish standards for such 

renovations that are different from the standards that might apply in connection with renovations in an 

occupied building or to exempt such renovations from work practice requirements entirely. EPA must 

explore the differences in exposure to lead-based paint hazards that may be associated with different types 

of RRP activities in commercial buildings. 

Furthermore, EPA must understand that routine maintenance is an on-going daily practice for 

commercial buildings. Any study EPA undertakes must examine and distinguish between ordinary 

operations and maintenance activities, and renovation and remodeling activities. Otherwise, standards for 

RRP activities could be triggered on virtually a daily basis, at millions of commercial buildings across this 

country. Neither regulators, workers, or building owners and managers could contend with the expense 

and administrative burdens associated with requirements governing RRP activities if they arise 

continually in the context of on-going building operations and maintenance. 

4. Impacts of and on Existing Regulatory Programs 

The ANPRM recognizes that extensive OSHA regulations already exist that govern exposure to leadbased paint both in construction activities and general occupational settings. See 75 Fed. Reg. at 24858; 

29 C.F.R. §§ 1910.1025,1926.62. The OSHA standards set permissible exposure levels for employees in 

the workplace. 29 C.F.R. §§ 1910.1025(c), 1926.62(c). It is reasonable to believe that employees are the 

single largest sub-population that would be affected by exposure to lead-based paint from RRP activities 

in public and commercial buildings. The ANPRM, however, does not include a discussion of the 

effectiveness of the OSHA regulations which already address lead-based paint hazards that result from 

RRP activities in commercial and public buildings. Given the fact that the OSHA regulations may 

effectively eliminate any lead-based paint hazards, EPA must consider the impacts of the existing OSHA 

requirements in assessing the need for further guidelines or regulation. 

In light of the protections already offered by OSHA regulations to arguably the largest sub-population 

with the highest levels of exposure to lead-based paint RRP activities in commercial and public buildings, 

the EPA should carefully consider whether it is necessary to impose additional regulations that would 

serve primarily to create a burdensome two-tiered regulatory structure. Such additional regulations could 

only be justified by a need to protect the most vulnerable of sub-populations such as young children. 

However, these sub-populations are generally not encountered in most commercial settings except on a 

very limited basis and would likely not have enough exposure to RRP activities to benefit from such 

additional heightened standards. 

5. Additional Factors EPA Must Consider 

While the issues discussed above highlight the lack of information EPA has regarding RRP activities 

in commercial and public buildings, they are only a fraction of the unanswered questions related to leadbased paint hazards in these settings. Prior to issuing any regulations related to RRP activities in 

commercial and public buildings, the EPA must consider these issues as well as provide answers to 

several other questions including the following: 
p. 17 

How should commercial building be defined for purposes of the rule? 

What are the current uses for lead-based paint in commercial buildings? Do the owners or 

managers of commercial buildings test for the presence of lead-based paint? Under what 

circumstances? 

What types of renovations are commonly performed in commercial buildings? How frequently 

are renovations performed in a given building? 

To what extent do routine maintenance activities in commercial buildings involve the disturbance 

of painted surfaces? 

What steps, if any, are commonly taken in connection with renovations in 

commercial buildings to restrict access to the area being renovated while the activity is underway? 

What steps, if any, are commonly taken in connection with renovations in 

commercial buildings to limit the spread of dust beyond the work area? 

How frequently do commercial buildings exist in close proximity to residences? 

How would the imposition of certification, training and work practice 

requirements affect renovation activities in commercial buildings? How would building owners 

and managers be affected? 

The EPA must consider a wide variety of factors in pursuing this rulemaking. It just does not make 

any sense to expand the scope of RRP to Commercial and Public buildings. Again, OSHA's 29 CFR 

1926.62 standards are already in place and provides measures that protect employees and as a result, the 

public. It seems clear to AGC NYS Member Firms that it would not make sense to impact costs when 

there are regulations in place that accomplish the intent of RRP. 

The Membership of the Associated General Contractors and the Associated General Contractors Safety 

Committee appreciate your consideration in regard to this issue. The AGCNYS Members and Safety 

Committee look forward to working with the Agency as it considers expansion of RRP activities to public 

and commercial buildings. We appreciate the opportunity to submit these comments. 

Respectfully submitted_on their behalf, 

;dmond 

Associated General Contractors of New York State 

Director, Safety and Health Services.