ATTACHMENT 3 Public Comments on Proposed ICR and EPA Responses to Public Comments

Two comments (from the Commercial Properties Coalition and the Independent Electrical Contractors) were submitted during the comment period for the D ecember 2013 Federal Register Notice. The comment period ended on February 4, 2014.

### COMMENTS OF THE COMMERCI AL PROPERTIES COALITION

ON EPA’S PROPOSED INFORM ATION COLLECTION REQUEST

REGARDING LEAD RENOVATION, REPAIR AND PAINTING

ACTIVITIES IN PUBLIC AND COMMERCIAL BUILDINGS

February 4, 2014I. INTRODUCTION AND COALITION DESCRIPTION

Thank you for the opportunity to comment on EPA’s proposed information collection request (“ICR”) regarding lead-based paint renova tion, repair, and painting (“RRP”) activities in public and commercial (“P&C”) buildings. Thes e comments are submitted by the Commercial Properties Coalition (the “Coalition”), an inform al group of trade associations that represent companies involved in almost every aspect of co mmercial real estate development, construction, ownership, management, contrac ting, renovation, and building product supp ly. Attachment 1

describes the mission and member ship of each participating organization in more detail. 1

The Coalition’s member companies (many of which are small businesses) would be significantly affected by any RRP program for P& C buildings. The viabil ity of the commercial real estate sector depends on c onstructing, owning, and maintaining buildings in a manner to safeguard the health and well-being of employees, workers, tenants and occupants. Above and beyond regulatory mandates, the Coalition’s member companies routinely seek voluntary certification and accreditation of their offices, apartment buildings, stor es, plants, hotels and other structures to ensure that they are sustaina ble, efficient – and healthy. Accordingly, the

Coalition has a substantial interest in the IC R, any finding under Section 403 of the Toxic Substances Control Act (“TSCA”) regarding potentially “dangerous levels of lead” in the building stock at issue, and any additional regulations that will expand federal programs covering

RRP activities within and on th e exterior of P&C buildings. If EPA obtains White House approval to proceed with the I CR, Coalition member firms are likely to be randomly selected to participate in telephone interviews and complete survey instruments.

The Coalition has had a longstanding interest in RRP matters. It has participated in earlier phases of public engagement regarding P& C buildings, most recently at a hearing held by
EPA on June 26, 2013. 2 We also incorporate by reference our comments filed on April 1, 2013, in response to EPA’s request for informa tion (hereafter, “Apr il 1, 2013, Comments”); 3 2010

comments to EPA’s advanced notice of proposed rulemaking; 4 and 2010 comments regarding a

1 The Coalition’s members are: Associated Builders and Contractors; Associated General Contractors of America; Building Owners and Managers Association (BOMA) International; CCIM Institute; Independent

Electrical Contractors; Institute of Real Estate Management (IREM®); International Council of Shopping Centers; NAIOP, the Commercial Real Estate Development Association; NAREIT®, the National Association of Real Estate Investment Trusts®; National Apartment Association (NAA); National Association of Home Builders (NAHB); National Association of REALTORS®; National Association of the Remodeling Industry (NARI); NationalFederation of Independent Business (NFIB); National Multifamily Housing Council (NMHC); the PlumbingHeating-Cooling Contractors—National Association; The Real Estate Roundtable; and Window and Door

Manufacturers Association. See Attachment 1.

2 Hearing transcript available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-

0173-0194

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3 Available at EPA’s on-line regulatory docket at http://www.regulations.gov/#!documentDetail;D=EPAHQ-OPPT-2010-0173-0154

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4 Available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-0173-0074

.P a ge 2 proceeding before EPA’s Science Advisory Board. 5 Many of the larger themes and points we made in our earlier filings are raised again here, as they remain unaddressed by EPA and are relevant to the proposed ICR.

II. SUMMARY

For a number of reasons, it is imperative for the Coaliti on’s member firms to own, manage and construct healthy, safe, and desirable buildings. They have earned their reputations as environmental stewards, and mu st be vigilant in responding to ever increasing demands of tenants and investors seeking so cially and environmentally res ponsible leasing and investment opportunities. Our members thus take pride in th e building certifications they receive from EPA in its ENERGY STAR program, and the corpor ate and building “labels” they obtain from a variety of organizations to signify their commi tment to safeguard the environment for future generations. If toxic or haza rdous conditions exist in our me mbers' buildings, the Coalition wants to know what those hazards are, where th ey exist, and what should be done to address

them.

The Coalition is aligned with EPA insofar as the ICR represents an effort to gather factual data to inform the agency as to whethe r there is need for a new program regulating the public and commercial real estate and contracting sectors of the U.S. economy. We commend EPA for recognizing that it has significant data gaps to fill before it can determine whether to regulate RRP activities in P&C buildings and, if so, what type of regulation may be warranted. 6
We appreciate EPA’s willingness to utilize the tool s at its disposal, such as an ICR, to “fill some of the key data gaps.” 7 However, we believe EPA is putting th e cart before the horse in seeking to issue the proposed ICR, for the reasons set fo rth below. We offer our comments in the spirit of assisting EPA to fulfill its responsibil ities under TSCA, the Paperwork Reduction Act (“PRA”), and the Administrative Procedure Act. In particular , should EPA ultimately proceed with an ICR, we submit our comments to help ensure that EPA does all it can to satisfy its statutory obligations under the PRA to minimize the public’s re sponse burden and maximize the practical utility of collected information.

The Coalition recommends as follows:

1. In framing the ICR, EPA is asking th e wrong questions at this juncture. As a threshold matter, EPA must determine whethe r a lead hazard exists in P&C buildings. Routine maintenance and repa ir, painting, and other reno vations are conducted on a regular basis in the public a nd commercial building stock. The critical question is not whether these activities are performed, but whether they create lead hazards.

2. EPA should practicably minimize the res ponse burden on the public by first gathering information through a plan of outreach a nd coordination with federal government

5 Attachment 3 to the Coalition’s April 1, 2013, available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-0173-0154

.

6 See “Supporting Statement for a Request for OMB Review Under the Paperwork Reduction Act” (“ICR Supporting Statement”), at 3.

7 Id.P a ge 3 building owners and managers. These entiti es will likely have the information EPA seeks to collect regarding RRP activities. Obtaining such information from federal

sources will allow for a more refined and less burdensome ICR that may be sent to non-governmental entities.

3. Any proposal to survey owners, managers , lessors, lessees, and contractors that are engaged in RRP activities in P&C buildings should rely on improved sampling techniques and questionnaire instruments to generate data of “practical utility.”

III. DISCUSSION

A. Without a predicate determination from EPA as to whether RRP activities in P&C buildings cause a lead-based pain t hazard in the first place, the proposed ICR cannot be relied upon to produce useful information and therefore does not comport with the PRA’s “practical utility” requirement.

In preparing to issue the residential RRP ru le, EPA and the U.S. Department of Housing and Urban Development (“HUD”) relied upon numerous studies that examined target housing for the presence of lead-based paint (“LBP”), the condition of painted “impact” surfaces, the presence of dust in window well s and floors, and chipped paint re sidue in the exterior perimeter

of the house. 8 These studies were conducted by federal ag encies or with federal grant support, and thoroughly analyzed the nature and extent of lead in the housing st ock and the relationship between lead exposure and blood lead levels in chil dren. This body of res earch formed the basis for the federal regulations that guide RRP activities in privatel y owned and federally assisted housing built before 1978. However, no comparable research foundat ion has been established for P&C buildings.

EPA has repeatedly acknowledged, and the stat ute makes clear, that it has no TSCA authority to regulate renovation and remodeling activities in P&C buildings per se . Rather, it has regulatory authority over RRP activities only to th e extent they cause a le ad-based paint hazard. 9

8 See, e.g ., U.S. EPA, Report on the National Survey of Lead-Based Paint in Housing, Washington, DC:EPA 747-R-95-003 (1995); U.S. Department of Housing and Urban Development (“HUD”)Task Force on LeadBased Paint Hazard Reduction and Financing, “Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing—Final Report,” Washington, DC, HUD-1542-LBP (1995); U.S. EPA, Standards for the Identification of Dangerous Lead Levels, 40 CFR Part 745 Subpart D, 66 Fed. Reg. 1205 (2001); U.S. EPA, “Risk Analysis to Support Standards for Lead in Paint, Dust and Soil,” Appendix B – “Health Effects Associated with Exposure to Lead and Internal Lead Doses in Humans,” and Appendix C1 – “Characterizing Baseline Environmental Lead Levels in the Nation's Housing Stock, Washington, DC, EPA 747-R-97-006 (2001); U.S. EPA, “Risk Analysis to Support Standards for Lead in Paint, Dust and Soil: Supplemental Report,” EPA 747-R-00-004 (2000); U.S. HUD, “The Relationship of Lead Contaminated House Dust and Blood Lead Levels Among Urban Children” (vols. I and II), “Final Report to HUD from the University of Rochester School of Medicine, Rochester, NY and the National Center for Lead Safe Housing, Columbia, MD (1995); Clark, CS, et al., "Condition and Type

of

Housing as an Indicator of Potential Environmental Lead Exposure and Pediatric Blood Lead Levels," Environmental Research 38:46-53 (1985); Lepow, ML, et al., "Investigations into Sources of Lead in the Environment of Urban Children." Environmental Research 10:415-426 (1975).

9 See, e.g ., Amended Litigation Settlement Agreement ¶ 2 (Sept. 7, 2012) (“Unless EPA notifies Petitioners that it has concluded that renovation activities in pre-1978 [P&C] buildings do not create a lead-based paint hazard,” EPA will propose work practices standards applicable to renovation activities in those buildings) (emphasis supplied); 77 Fed. Reg. at 76,997 (Dec. 31, 2012) (EPA can regulate LRRP activities in public and commercial buildings only “to the extent such renovations create lead-based paint hazards”); 78 Fed. Reg. at 73,521 (Dec. 6,P a ge 4 Without first making such a “h azard” finding under TSCA section 403 with regard to P&C buildings, the ICR cannot be expected to gather useful information, a requirement under the PRA’s “practical utility” criterion. 10 In fact, EPA must “certify” that information collected through the ICR “is necessary for the proper pe rformance of the func tions of the agency, including that the information has practical utility....” 11

One of the PRA’s enumerated purposes is to “ensure the greatest possible benefit from and maximize the utility of the information created, collected, maintained, used, shared and disseminated by or for the Federal Government.” 12 The Act intends to “improve the quality and use of Federal information to strengthen deci sion making,” and the OMB Director (acting through the Office of Information and Regulatory Affairs [“OIRA]”) bears the responsibility to “maximize the practical utility of and public benefit from inform ation collected by or for the federal government....” 13

The information gathering process that EPA is pursuing must be improved to satisfy these PRA objectives. Accordin g to the Supporting Statement: “ If EPA determines that a [P&C LRRP] regulation is needed, the Agen cy will use [any ICR] data ....” 14 That is, if the agency

determines no regulation is needed, then the agency would not use the data – and any data thus collected through the ICR will have no practical ut ility. The public will have been burdened in responding to the ICR for no lawfully recognized purpose.

Accordingly, before EPA can regulate LRRP activities in P&C buildings or collect information from the public that may justify such a regulation, it must first develop a TSCA section 403 rule to identify whether “dangerous levels of lead” exist in the commercial real estate

stock. 15 The Coalition’s April 1, 20 13, Comments explained:

2013) (“EPA has initiated a proceeding to investigate whether and what type of regulatory action might be appropriate to control exposures to lead dust resulting from [LRRP activities in P&C buildings]” (emphasis supplied); ICR Supporting Statement at 1 (“If EPA determines that a [P&C LRRP] regulation is needed, the Agency will use [any ICR] data ....”) (emphasis supplied); ICR Supporting Statement at 3 (“Under the terms of the amended litigation settlement agreement [dated Sept. 7, 2012] ... EPA has agreed to either sign a proposed rule covering RRP activities in [P&C buildings], or determine that these activities do not create LBP hazards ....”).

10 44 U.S.C. § 3504(c)(4). “The term ‘practical utility’ means the ability of an agency to use information, particularly the capability to process such information in a timely and useful fashion ....” Id. § 3502(11).

11 Id . § 3506(c)(3)(A).

12 Id . § 3501(2).

13 Id . § 3506(c)(3)(A).

14 ICR Supporting Statement, at 1 (emphasis supplied).

15 TSCA § 402 (c)(3), 15 U.S.C § 2682(c)(3). The statute defines a “lead based paint hazard” as a “condition that causes exposure to lead... that would result in adverse human health effects as established by the EPA under this subchapter,” TSCA § 401(10). And to the extent that EPA may now be seeking to base a lead-based paint hazard for P&C buildings on adult, rather than child-targeted exposures, it has made no determination of what levels of exposure would constitute such a hazard or whether it exists in P&C buildings.P a ge 5 Further delimiting the scope of EPA’s regu latory authority, a conjunctive reading

of TSCA sections 402 and 403 reflects an expected sequence for agency action – requiring EPA first to promulgate regula tions that “identify ... lead-based paint hazards,” the results of which are then to be used in dete rmining whether “to apply the regulations to renovations...” in public and commercial buildings, or, alternatively, to determine that certai n categories of renovation do not require regulation. 16

The thrust of the ICR should be modified to ensure that it does not leapfrog over the predicate 403 “hazard” determination. EPA pr oposes to collect information on RRP activities that it may ultimately regulate – as if the “hazard” finding is a foregone conclusion. The Supporting Statement acknowledges: “The primary purposes of this survey include estimating the baseline usage of particular work practices, and how this usag e varies with the type of RRP job; determining the number of firms that pe rform RRP activities in [P&C buildings]; and determining the types and numbers of RRP activities that are performed.” 17 The secondary purpose of the ICR is to “collect information on how the proportion of jobs that use particular practices differs between different types of firms.” 18 Beyond such “baseline work practice data, the survey will collect information on the number of contractors that are already trained and certified under the existing [residential] RRP Program.” 19 For paperwork reduction purposes, however, there is no practical utility to collec t “baseline data” on work practices and trained

residential contractors if no lead -based paint hazard in P&C buildings is found to exist – because no work practice regulations will be necessary (or lawful) in the absenc e of a TSCA section 403

hazard determination.

The Supporting Statement and questionnaire inst ruments themselves evidence that EPA

would collect data on RRP activities disconnected from any possible lead-based paint hazard. The Supporting Statement sets forth 14 “key” pieces of information that the ICR would collect. 20

The 11th listed “variable” is “LBP Testing,” where “Respondents will be asked about whether they tested for LBP and if so, whether or no t the test indicated the presence of LBP.” 21

Similarly, Question 10 (second to last) of the “M anager/Lessor Survey Questionnaire” asks the respondent: “To your knowledge, has the building we’ve been discussing ever been tested for the presence of lead-based paint?” 22 If a building tested positive for the presence of lead paint,

16 April 1, 2013, Comments at 53-54.

17 ICR Supporting Statement, at 3.

18 Id

.

19 Id . None of EPA’s stated “primary” or “secondary” objectives of the questionnaires are to support a possible 403 hazard determination as the predicate to justify regulation of P&C LRRP activities. Id . at 17.

20 ICR Supporting Statement, at 17-20. These include “Respondent Identification,” “ Firm Type and Size,” “Recent Job” descriptions about a “single RRP activity type,” “Paint Removal Techniques,” “Contaminant” practices related to dust, “Cleanup,” and “Baseline RRP Certification,” among others.

21 Id. at 20.

22 Manager/Lessor Survey Questionnaire, ICR Attachment 4, at 6. Likewise, the second-to-last question of the “Building Occupant Survey Questionnaire,”(ICR Attachment 5, at 8) asks, “To your knowledge, has the building we’ve been discussing ever been tested for the presence of lead-based paint?” Similarly, the 12 th question of theP a ge 6 or if a respondent otherwise be lieves or knows that lead-based paint exists in the building, it would be useful to gather info rmation on RRP practices. However, if a respondent states that lead-based paint does not exist in the commercial structure or is otherwise unsure of its presence, then any interview or questionn aire response should stop there. Subsequent questioning would gather information on RRP activitie s that lack practical utility – because EPA lacks authority to regulate such activities without a section 403 showing that they cr eate lead-based paint hazards.

The PRA’s spirit and objective s more clearly require a decision-making sequence that first requires EPA to determine if additional regulation of RRP activities is indeed necessary – and then gather information on those activities to specify the type, breadth, and specifications for any renovation, repair and painting work practice s in P&C buildings. Without pursuing this logical path, any OMB approval here runs the risk of failing to “maximize” the utility of ICRgathered data. And EPA would collect inform ation that is not “necessary for the proper performance” 23 of its limited regulatory role within TSCA’s structure to regulate only RRP activities that are found to create a lead-based paint hazard.

Finally, EPA may not rely on the lead-based paint hazard finding it has already made for residential RRP purposes, and somehow bootstra p that determination to conclude that

commercial RRP activities are hazardous. The TSCA 403 residential rule states: “[I]t is important to emphasize that this rule only applies to pre-1978 ta rget housing and certain childoccupied facilities, and that these standards were not intended to identify potential hazards in other settings .” 24 Likewise, a panel of EPA’s Science A dvisory Board (“SAB”) has recognized

that there is “insufficient data concerning lead dust exposures in commercial or public buildings to support a reliable standard.” 25 The Coalition strongly cautions against a reductive approach that relies upon studies conducte d in residential settings to somehow buttress any P&C RRP

program.

Should EPA first develop a 403 ha zard rule for the P&C stock, it might then administer an ICR of practical utility to gather informati on on RRP activities in th ose buildings. But the agency is not at that critical juncture. 26 The Coalition accordingly believes that the proposed

“Contractor Survey Questionnaire” (ICR Attachment 3, at 22) is a two-part question that asks, “[D]id the test indicate there was lead-based paint?”

23 44 U.S.C.§ 3506(c)(3)(A).

24 Lead; Identification of Dangerous Levels of Lead , 66 Fed. Reg. 1,206, 1,211 (Jan. 5, 2001) (emphasis supplied).

25 EPA Science Advisers Urge Tough Lead Dust Cleanup Requirements , Inside EPA.com (July 13, 2010), (used with permission), Attachment 4 April 1, 2013, Comments, available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-0173-0154

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26 The Coalition believes EPA has yet to develop a record to justify a section 403 hazard finding for LRRP activities in P&C buildings. Our April 1, 2013, Comments set forth a detailed examination of “studies” cited by
EPA, in response to questions for a Senate hearing record, as potentially relevant to lead-based paint hazard issues in P&C buildings (Comments at 21-24). These studies were also raised at EPA’s June 26, 2013 public meeting. (See meeting transcript at 128-135, available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-

0173-0194 .) Several of EPA’s cited studies expressly state that they provide no basis to draw conclusions about LBP issues in public and commercial buildings. Further, the only non-residential buildings considered across the many studies offered by EPA to the Senate were a 1967 school building, and a 150-year old business.P a ge 7 ICR does not meet the “practical utility” sta ndard under the PRA. At a minimum, EPA should restructure the survey to begin with a question on whether a property is known to contain lead paint; if the response indicates the answer is no, the survey should be terminated.

B. Federal agencies maintain P&C buildi ngs of varying purposes, sizes, ages, and geographic distribution and thus form a reliable cohort to provide a comprehensive catalogue of the RRP activities conducted in a range of P&C buildings. Before sending an ICR to the public (including many small businesses), EPA should collect renovat ion and remodeling information from readily accessible federal government sources and thereby minimize the public’s response burden.

The PRA’s overriding objective is to ensure that the public’s burden when responding to a federal ICR must be kept to a minimum. Th e first purpose of the PR A is to “minimize the paperwork burden” for individuals, businesses, co ntractors, non-federal government bodies, and

other entities “from the coll ection of information by or for the Federal Government.” 27

To meet this objective, Congress charged th e OMB Director (acting through OIRA) to

coordinate review of ICRs “w ith a particular emphasis ... to reduce information collection burdens on the public ....” 28 Like all federal agencies, EPA mu st “ensur[e]” satisfaction of the PRA’s goals – including the paramount aim to minimize the public’s ICR burdens. 29 When collecting information, EPA must also “develop a plan” that furthers paperwork reduction objectives such as public burden minimization. 30 Moreover, the OMB Dire ctor, in consultation

with the EPA Administrator and other department heads, is obliged to set annual goals that

“ represent the maximum practicable opportunity” to reduce the data collection burdens borne by the public. 31

Respectfully, the Coalition belie ves that EPA must go further to minimize the burden it would impose on the public in responding to the ICR at issue. The RRP program that EPA contemplates would regulate commercial buildings owned, managed and occupied by the federal

government, as well as non-federal and private sector structures. However, EPA has yet to explain what, if any, steps it has taken to coll ect information sought by the ICR from the federal buildings community. As the U.S. government owns the most buildings in the country, and

leases the most commercial space across the nation, fe deral agencies are the most logical and efficient first stop for EPA to gather lead paint and work practices information before the public is screened, surveyed, and questioned. Consid ering the breadth and diversity of the federal

27 44 U.S.C. § 3501(1). PRA regulations define “burden” to mean the “total time, effort or financial resources expended by persons to generate, maintain, retain or disclose or provide information to or for a Federal agency ....” 5 C.F.R. § 1320.3(b).

28 Id., § 3503; § 3504(c)(2).

29 Id. , § 3506(a)(3).

30 Id., § 3506(c)(1)(A)(iii).

31 Id., § 3505(a)(1)(A)(i).P a ge 8 government’s commercial real estate stock, gath ering lead-based paint information from federal owners and occupants w ould minimize the public’s burden to provide the same information.

Surprisingly, EPA’s Supporting Statement does not mention any efforts whatsoever to obtain RRP information from federal departments. The Coalition has repeated ly offered to assist EPA in coordinating with its sister agencies a nd to follow-up on our own outreach that we have

started with federal facilities staff. 32 Indeed, our April 1, 2013, Co mments strongly urged EPAto coordinate with federal facilities owners and managers to study their buildings for any leadbased paint hazards, identify actual renovation projects in these structures, and assess the effectiveness of associated work practices. The Coalition’s earlier comments cited a letter from Senators Vitter, Inhofe, Crapo and Fischer to EPA, which explained that “[ t]he massive stock of federal buildings can serve as a laboratory to develop any Public & Co mmercial LRRP rule and help assure a sound, scientific, and fact-b ased record,” and further recognized:

[T]he General Services Administ ration (“GSA”) is the nation’s largest public real estate organi zation and provides workspace in commercial buildings for more than 1 million federal workers through its Public Buildings Servic es (“PBS”). PBS’s commercial real estate portfolio covers ove r 8,100 leases in excess of 171 million square feet, and 1,500 g overnment-owned buildings, across the nation. Likewise, the infrast ructure of the Department of Defense (“DoD”) encompasses se veral hundred thousand buildings at more than 5,000 different locations or sites. The footprint of the Veterans Administration (“VA”) is marked by 5,500 buildings and 1600 leases totaling approximately 14 2 million square feet, with an average age approaching 60 years. And, the Architect of the Capitol (“AoC”) is responsible to the U.S. Congress and Supreme Court to maintain and operate 17.4 million square feet of buildings on Capitol Hill.” 33

Among other suggestions, the Coalition recomme nded that EPA contac t the Architect of the Capitol with regard to soli cit information regarding the reha bilitation of the Capitol Dome and the imminent “top-to-bot tom renewal of the [U.S . House] Cannon Building.” 34 Certainly, these renovation, repair, and pa inting projects on Capitol Hill can provide EPA with work practices information sought by the ICR – wit hout burdening the public. The Coalition is not

32 To raise awareness regarding EPA’s efforts to collect information regarding a potential RRP rule for P&C buildings, Coalition members have met with and conducted outreach to the General Services Administration, Office of the Secretary of Defense, the Naval Facilities Engineeri ng Command, the Department of Veterans Affairs, and the multiple federal agencies that participate in the Whole Building Design Guide program administered by the National Institute of Building Sciences, among others. See Coalition’s April 1, 2013, Comments, at 24-25.

33 Id. at 4. The letter from Senators Inhofe, Vitter, Crapo and Fischer is Attachment 6 to the Coalition’s April 1, 2013 Comments, available at: http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-

0173-0154

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34 April 1, 2013, Comments, at 52-53.P a ge 9 persuaded that information on commercial LLRP activities “is not available from any readily

accessible source.” 35 The federal government is such a source.

Our April 1, 2013, Comments also urged EPA to coordinate with the National Institute of Building Sciences (“NIBS”), which manages th e federal “Whole Building Design Guide (“WBDG”), and develop a plan to gather info rmation regarding work practices used in commercial building renovations and remodels. A board of fede ral agencies – which includes EPA itself, the General Services Administration, the Department of Defense, and other agencies – guides the WBDG’s development to provide “government and industry practitioners one-stop access to up-to-date informati on on a wide range of building-related guidance, criteria, and technology from a whole-building perspective.” 36 Senators King, Manchin, and Begich wrote to NIBS urging it to assist EPA in pr oviding lead-based paint information, 37 and NIBS itself provided comments expressing its willingness to assist EPA in collecting lead-based paint

information from federal facili ties owners and managers. 38 As stated in the Coalition’s April 1, 2013, Comments: “If the WDBG and collaborat ion among its participating agencies cannot provide [relevant lead-based paint] information ... then th e Coalition wonders whether any group or organization could practicab ly or feasibly supply the information sought by EPA.” 39

Certainly, the public’s response burden would be minimized if EP A coordinates with NIBS and the WBDG’s participating federal agencies to collect lead paint and work practices data.

The Coalition encourages EPA to leverage the wealth of experience and depth of knowledge of federal entities as a fair and practicable step to mi nimize the public’s burdens from an ICR that would duplicate the information that could be obtained from the federal building community. Indeed, the federal buildings communit y is an ideal source for the data EPA seeks to provide “specificity and level of detail ... in order to estimate the pote ntial risks, the industry baseline, and the costs an d benefits of po tential regulatory requirements.” 40

C. Any proposal to survey owners, man agers, lessors, lessees, and contractors that are engaged in activi ties in P&C buildings, as a basis for establishing new regulatory requirements, should rely on a rigorou s statistical analysis, including improved sampling techniques and questionnaire instruments.

35 ICR Supporting Statement, at 2.

36 Id. at 41-43.

37 Id. at 4. The letter from Senators King, Manchin and Begich is Attachment 7 to the Coalition’s Comments, available at: http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-0173-0154

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38 NIBS’s comment letter states: “As the entity charged by Congress to engage both the public and private sector in the development and dissemination of technical criteria for buildings, the Institute welcomes the opportunity to facilitate the identification and subsequent conduct of research to inform development of lead-based paint regulations for public and commercial buildings.” Available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-0173-0153

.

39 Id. at 43.

40 ICR Supporting Statement, at 4.P a ge 10 The Coalition submits that the sampling methodologies and questionnaire instruments proposed in the ICR do not appear likely to yiel d data of “practical utility.” Moreover, the design of the survey is not sufficiently deta iled to determine whether the information obtained will be statistically relevant.

EPA intends to pose brief screening qu estions to 10,650 entities including: “(A) establishments that perform RR P activities in [P&C buildings] for compensation on a contract basis; hereinafter referred to as contractors; (B) lessors and ma nagers of [P&C buildings]; and (C) building occupants of [P&C buildings] (bot h owners and tenants) who may use their own staff to perform RRP activities.” 41 In addition to screening contra ctors, lessors, managers, and occupants, EPA “plans to have 402 re spondents complete a questionnaire.” 42 This randomly sampled universe of respondents is said to “provide a basis for estimating the population of establishments engaged in RRP activities in [P&C buildings].” 43 Without additional information on the methodology to be used in such a survey , we are concerned that the respondent pool of 402 surveys will be insufficient to reflect the diversity of the public and commercial building

stock.

A similar type of survey, t he Commercial Buildings Energy Consumption Survey (CBECS), is “conducted quadrennially by the Energy Info rmation Administration (EIA) to provide basic statistical inform ation about [energy consumptio n, expenditures, and related characteristics] in U.S. commercial buildings. The survey is based upon a sample of commercial buildings selected according to the sample design requirements.” 44 One of CBECS’s data collection phases is a “Building Characterist ics Survey” which “collects information about selected commercial building s through voluntary interviews with the buildings' owners, managers, or tenants.” 45

To collect information in 2003 46 on the estimated 4.9 million co mmercial buildings in the U.S., the CBECS relied upon an initial screen ing sample size of 6,955 buildings of which 5,215 completed surveys (a response rate of 82%) form ed the basis of the final report. Given the

similarities between the ICR and the CBECS survey populations ( i.e., the U.S. commercial building stock) it is unclear whether 402 completed lead ICR su rveys reflecting the experiences of three categories of survey respondents ( i.e., contractor, owner, and occu pant) will be sufficient for the task of predicting a reliable “baseline for the incidence of different types of RRP activities that disturb lead-based paint in [P&C buildings ], the methods that are used to conduct these

41 ICR Supporting Statement, at 1.

42 Id.

43 Id.

44 http://www.eia.gov/consumption/commercial/data/2003/index.cfm?view=methodology#sampledesign

.

45 Id.

46 A current CBECS survey and sampling effort has been underway since 2011. The Coalition strongly encourages EPA to contact EIA to gain a better understanding of the methodologies and statistical analyses used by CBECS in its survey of commercial buildings, and we offer to facilitate and arrange meetings on this topic.P a ge 11 activities, the work practices that are used to contain and clean the resulting dust, and the characteristics of the buildings.” 47

As outlined in the ICR, if each surveyed entity is considered a “building,” 48 then 402

responses – representing only 0.008 % of the commercial building stock – will form the basis of EPA’s understanding of RRP activ ities across the broad and dive rse spectrum of U.S. P&C structures. By comparison, the CBECS survey of roughly the same building stock sought information on a narrower question (energy consum ption) and relied upon a sample size of 5,215 buildings or 0.1% of the building stock. As noted above, the comp arison between survey rates of the ICR and CBECS likely oversta tes the percentage of commer cial buildings that will be sampled in the ICR because not all of the 402 completed surveys will actually represent individual buildings. Nonetheless, EPA states that the I CR will “use a probability sample to calculate nationally representative parameter estimates” and will “produce statistically valid estimates” of RRP jobs in commercial buildings. 49 EPA provides no information or background materials to explain whether th e “screening” sample or the “s urvey” sample will produce statistically valid estima tes on lead-based paint and work pr actices information to justify an expansive new regulatory program.

With regard to the universe of contractors that might be surveyed, the United States had approximately 740,000 construction firms in 2012, of which 92% employed fewer than 20 workers (according to the latest U.S. census burea u data). As the chart below shows, even if all of the responses EPA ultimately collects were to come from the building and specialty trade segments of the contractor community (which will not be the case given th at some of the surveys are intended to be completed by building owners and tenants), the agen cy would have reached out to merely 0.05% of those construction firms to solicit information on the types of painting activities that disturb lead-based paint in P&C bui ldings, and the work practices that are being used to contain and collect paint dust. This is no t likely to produce “statist ically valid” data or data that is representative of standard industry practices.

Construction Company Type Statistics Number of Companies

Const r uction of Buildings 211,956

Heavy and Civil Engineering Const r uction 39,439

S p ecialty Trade Contrac t ors 477,950

Moreover, the likelihood that the exceedingl y low number of sampled buildings and

contractors will not result in data of “practical utility” is exacerbated by the diversity of the U.S. commercial building stock in terms of size, age, geography, uses, and occupancy types. The “practical utility” of any information gather ed from the 10,650 “screened”/402 “fully surveyed” respondents is thus further diminish ed, because the number of surveyed jobs will be so low as to

47 ICR Supporting Statement, at 1

48 Indeed, considering the inclusion of “contractors” as a category of respondents, it is not clear that each surveyed entity represents a “building” for purposes of the lead paint ICR.

49 ICR Supporting Statement, at 2.P a ge 12 preclude reasonable estimates regarding lead-b ased paint presence, RRP practices, and dust exposure across the widely diverse U.S. stock of commercial buildings. The April 1, 2013, Comments explain that, among other build ing variables assessed by CBECS 50 :

 “There are nearly 4.9 million commercial buildings in the U.S. spanning a
broad spectrum of types and uses, and comprising more than 71.6 billion square feet

of floorspace.”

 “Buildings constructed from 1970 to 2003 comprise 58 percent of buildings

and 63 percent of floorspace.”

 “Since the first CBECS in 1979, the commercial buildings sector has increased

in size. From 1979 to 2003, the number of commercial buildings increased from 3.8

million to 4.9 million. And, the amount of commercial floorspace increased from 51

billion to 72 billion square feet.”

 “The South Census Region, the most populous of the four regions, accounts for

more than one

‐ third of both commercial buildings and floorspace. The fewest

commercial buildings are found in the Northeast Census Region, while the smallest

amount of commercial floor space is found in the West Census Region.”

 “Key occupancy information such as numbers of workers, median square feet

per worker, and median hours per week of operation, significantly vary across all building types and sub

‐ types.”

 “The most recent CBECS survey identified more than 100 specific activities, aggregated into fourteen “principal building activities” which are then broken down

into numerous sub

‐ types based on the primary business, commerce or function

conducted within each structure ....”

The Coalition understands that there must be limits to the number of buildings and RRP jobs that EPA may feasibly survey. But inso far as the ICR request comes from the agency, EPA

bears the burden to fully explain how the universe of ra ndomly sampled respondents is sufficient in scope and number to yield data of “practical utility” that will enable reasonable estimates, assumptions, and conclusions that may have a regulatory impact under TSCA. That “[t]his ICR will allow EPA to produce statistically valid es timates” is stated as a bald conclusion 51 – with no articulated reasons, justifications, or back-up documentation. For that matter, neither the Supporting Statement nor any other document prov ides an explanation as to why EPA believes

50 April 1, 2013, Comments, at 8-23.

51 ICR Supporting Statement, at 3.P a ge 13 the ICR meets the Office of Management and Budg et’s “Standards and Guidelines for Statistical Surveys” (September 2006). 52

With the General Services Administration ’s portfolio totaling 1,500 government-owned buildings, 53 EPA would obtain a far better statistical sample if it just focused on federal government buildings and facilities. 54 But as the ICR is presently conceived, it will not likely result in useful data for potent ial regulatory purposes and, theref ore, does not demonstrate that it will satisfy the PRA’s “practical utility” criterion.

IV. CONCLUSION

The Coalition supports EPA’s efforts to gather information to determine whether there is a need for a new RRP regulatory program for P&C buildings and, if so, what type of regulation may be warranted. We appreciate EPA’s willingn ess to use available tools like the ICR to fill some of the key data gaps that exis t, as the agency itself recognizes.

However, EPA must significantly improve the ICR if it is to satisfy the PRA’s statutory requirements. The agency must maximize the practical utility of collecting information as necessary for the proper exercise of its authority to regulate only those RRP activities that create a lead-based paint hazard. Also, the agency must minimize the response burden on the public (including small businesses) in collecting data, such as by coordinating with the federal buildings community to provide information sought by the ICR. The Coalition reitera tes its previous offer to work with EPA in coordinating efforts with re levant federal building ow ners and managers to obtain information that might ultimately inform any RRP rule for P&C buildings.

52 Available at: http://www.whitehouse.gov/sites/default/files/omb/inforeg/statpolicy/standards_stat_surveys.pdf

. Among other things, OMB’s guidelines states that agencies must “select[ ] samples using generally accepted statistical methods,” such that “[t]he size and design of the sample must reflect the level of detail needed in tabulations and other data products, and the precision required of key estimates.” Id. at i. Further, agencies must “ensure that survey results are representative of the target population so that they can be used with confidence to inform decisions.” Id. It is not apparent to the Coalition that EPA has taken such steps to assure the statistical reliability of any information that may be gathered through the ICR at issue.

53 Supra n. 33.

54 In this regard, EPA plans to send surveys to only nine – and no more – respondents for each questionnaire “in order to identify potential changes to improve the survey instrument.” ICR Supporting Statement, at 4. See also

id. at 28 (“The agency will pre-test each draft questionnaire with 9 or fewer respondents.”). However, “[t]he agency does not anticipate that a pilot test will be possible given time and budget constraints.” Id. at 28. Given the scope of any RRP regulations will cover federal buildings, why aren’t GSA personnel, federal facilities managers, and federal building construction contractors participating in any pre-test and pilot? The Coalition believes that testing the

survey instruments with federal personnel can only help achieve the PRA’s purposes to gather potentially useful data and minimize public response burdens.P a ge 1 

### ATTACHMENT 1

LIST OF ORGANIZATIONS IN COMM ERCIAL PROPERTIES COALITION

Associated Builders and Contractors (ABC) is a national construc tion industry trade association with 22,000 chapter members. Founde d on the merit shop philosophy, ABC and its 70 chapters help members develop people, win work and deliver that work safely, ethically and profitably for the betterment of the communities in which they work. ABC member contractors employ workers, whose training and experience span all of the 20-plus skilled trades that comprise the construction industry. Moreover, the vast majority of our contractor members are

classified as small businesses. Our diverse membership is bound by a shared commitment to the merit shop philosophy in the cons truction industry. The philosophy is based on the principles of

nondiscrimination due to labor affiliation and th e awarding of construction contracts through open, competitive bidding based on safety, quality and value. This process assures that taxpayers

and consumers will receive the most for their construction dollar.

Associated General Contractors of America (AGC) is the leading trade association in the construction industry. It dates back to 1918, a nd it currently represents 33,000 firms in nearly 100 chapters across the United States. AGC’s members include 7,500 of the nation’s leading general contractors, nearly 12,500 specialty contra ctors and more than 13, 000 material suppliers and service providers to the construction industry. These memb ers engage in the construction of commercial buildings, hospital s and laboratories, schools, shopping centers, factories, warehouses, highways, bridges, tunn els, airports, levees, water works facilities and multi-family housing units, and they prepare sites and install th e utilities necessary fo r housing development. AGC Building Contractors represent large and sma ll contractors, from those that offer a wide variety of pre-construction and pos t-construction services to t hose that offer only traditional

construction services. In 2012 nonresidential construction spending in the U.S. totaled $570 billion ($273 billion public, $298 billion private). In December 2013, nonresidential building and specialty trade contractors accounted for 2.8 million of the industry’s 5.8 million employees.

Building Owners and Managers Association (BOMA) International is a federation of 93 BOMA U.S. associations, BO MA Canada and its 11 regiona l associations and 13 BOMA international affiliates. Founded in 1907, BOMA represents the owners and managers of all commercial property types includ ing nearly 10 billion square feet of U.S. office space that supports 3.7 million jobs and cont ributes $205 billion to the U.S. GD P. Its mission is to advance

the interests of the entire commer cial real estate industry throug h advocacy, education, research,

standards and information. BOMA International is a primary s ource of information on building management and operations, development, leasing, building operating costs, energy consumption patterns, local and national building codes, le gislation, occupancy stat istics, technological developments and other industry trends.

CCIM Institute is an affiliate of the NATIONAL ASSOCIATION OF REALTORS® (NAR).

The Institute confers the Certified Commercial Investment Member (CCIM) designation through an extensive curriculum and expe riential requirements. The CC IM designation was established in 1969 and is recognized as the mark of professionalism and knowledge in commercial investment real estate. Membership includes qualified professionals in all disciplines of

commercial investment real estate, including brokers, leas ing professionals, investmentP a ge 2 counselors, asset managers, appraisers, corporat e real estate executives, property managers, developers, institutional investors, commercial lenders, attorneys, bankers, and other allied professionals. Of the approximately 125,000 commer cial real estate practitioners nationwide, 9,000 currently hold the CCIM designation, with an additional 6,000 candidates pursuing the designation. Founded upon the prin ciples of education, networki ng, and ethical practice, the CCIM Institute, as an affiliate of the 1.2 million-member NATIONAL ASSOCIATION OF REALTORS®, helps shape policy and legislatio n affecting the industry and safeguards the interests of commercial investment real estate practitioners.

The Independent Electrical Contractors (IEC) is a national trade a ssociation for merit shop electrical and systems contract ors representing over 3,000 memb er companies and 56 chapters nation-wide. Over 50 percent of IEC members ar e small business owners. With over $14 billion in annual sales, our members are a driving forc e in the electrical and systems contracting industry. IEC serves as the voice of the indus try on policies affecting our membership and attempts to further our economy through skilled manpower and the principl e of free enterprise. IEC has more than 50 chapter trai ning centers nationwide that pr ovide training to approximately 10,000 apprentices each year. IEC's training pr ogram offers particip ants the knowledge, technical skills, and prac tical experience necess ary to succeed in today’s electrical trade.

Institute of Real Estate Management (IREM®) is an international comm unity of real estate managers dedicated to ethical business practices, maximizing the value of investment real estate, and promoting superior management through education and information sharing. An affiliate of the National Association of REALTORS®, IREM is the home for all industry professionals connected to real estate management – and the only organization serving both the multi-family

and commercial sectors. We believe that good management matters, and that well-managed properties pay dividends in terms of value and in the quality of life for residents, tenants and customers. We believe in prof essional ethics. We believe in the power of knowledge and the importance of sharing it. IREM offers a variety of membership types for professionals of every experience level, from on-site managers to high -level executives. Our credentials, earned by meeting high standards of education, experi ence, and ethical business practices, include: CERTIFIED PROPERTY MANAGER® (CPM®), ACCREDITED RESIDENTIAL MANAGER® (ARM®), ACCREDITED CO MMERCIAL MANAGER (ACoM), or

ACCREDITED MANAGEMENT ORGANIZATION ® (AMO®). Since 1933, IREM has set the standard for best practices in real estate management. To day, IREM® membership includes more than 18,000 individuals and 560 corporate members.

Founded in 1957, the International Council of Shopping Centers (ICSC) is the premier global trade association of the shopping center indu stry. Its more than 60,000 members in over 90 countries include shopping center owners, de velopers, managers, marketing specialists, investors, retailers and brokers, as well as academics and public of ficials. As the global industry trade association, ICSC links with more than 25 national and re gional shopping center councils throughout the world.

NAIOP, the Commercial Real Esta te Development Association, is the leading organization for developers, owners and relate d professionals in office, industr ial and mixed-use real estate. NAIOP comprises 15,000 members in North Amer ica, with over 50 local chapters. NAIOPP a ge 3 advances responsible commercial real estate development and advocates for effective public policy.

NAREIT®, the Nation al Association of Real Es tate Investment Trusts® , is the worldwide representative voice for REITs and publicly traded re al estate companies with an interest in U.S. real estate and capital markets. NAREIT's members are REITs and other businesses throughout the world that own, operate, and finance income-pr oducing real estate, as well as those firms and individuals who advise, study, and service those businesses.

For more than 20 years, the National Apartment Association (NAA) and the National Multifamily Housing Council (NMHC) have partnered on behalf of America's apartment industry. Drawing on the knowledge and policy ex pertise of staff in Washington, D.C., as well as the advocacy power of 170 NAA state and local affiliated associations, NAA and NMHC provide a single voice for deve lopers, owners and operators of multifamily rental housing. Apartments and their 35 million residents support more than 25 million jobs and contribute $1.1 trillion to the economy.

The National Association of Home Builders (NAHB) is a trade association organized for the purpose of promoting the general commercial, pr ofessional, and legislative interests of its membership. NAHB consists of more than 140,000 builder and associate members organized into approximately 800 affiliated state and local associations in all 50 st ates, the District of Columbia, and Puerto Rico. These members are involved in home building, remodeling, multifamily construction, property management , subcontracting, design, housing finance, building product manufacturing and other aspects of reside ntial and light commercial construction. Founded in 1982, NAHB Remodele rs of the National A ssociation of Home Builders represents and serves the interests of more than 24,000 rem odeling industry members.

The National Associat ion of REALTORS®, The Voice for Real Estate®, is America’s largest trade association, representing over 1 million members involved in the residential and

commercial real estate industries. NAR is strategically poised to work on behalf of America's property owners providing a facili ty for professional developmen t, research and exchange of information among its members and to the public and government for the purpose of preserving the free enterprise system, a nd the right to own, use, and transfer real property.

The National Association of the Remodeling Industry (NARI) is structured as a federation with almost 60 independent chapters located in most major metro area s throughout the country and with headquarters located in Des Plaines, IL (Northwest Chicago suburbs). NARI is a trade association whose 6,500 company members voluntari ly subscribe to a Code of Ethics and Standards of Practice. Membership is comprise d of general and specia lty remodeling companies

and local and national su ppliers to the industry. NARI is the only national organization dedicated exclusively to the rem odeling industry. With aging of the country’s housing stock and double digit growth in home improvement spe nding expected through mid-2014, NARI members perform a vital public purpose.

The National Federation of Independent Business (NFIB) is the nation’s leading small business advocacy association, representing me mbers in Washington, D.C., and all 50 state capitals. Founded in 1943 as a nonprofit, nonpartisan organization, NFIB’s mission is to promote and protect the right of its members to own, operate, and grow their businesses. NFIBP a ge 4 represents about 350,000 independe nt-business owners who are located throughout the United

States.

The Plumbing-Heating-Cooling Cont ractors—National Association is America’s premier trade group for the p- h-c professional. PHCC has more than 3,500 open and union shop contractor members who successfully ma nage businesses in re sidential service and new construction, commercial and industrial markets.

The Real Estate Roundtable ( www.rer.org ) brings together leaders of the nation’s top publicly- held and privately-owned real es tate ownership, development, lending and management firms with the leaders of major national real estate trade associations to jointly address key national policy issues relating to real estate and the overall economy. Collectively, Roundtable members’ portfolios contain over 5 billion square feet of office, retail and industrial properties valued at more than $1 trillion; over 1.5 million apartment units; and in excess of 1.3 million hotel rooms. Participati ng trade associations represent more than 1.5 million people involved in virtually every aspect of the real estate business.

Window and Door Manufactur ers Association (WDMA) defines the standards of

excellence in the residential and commercial window, door and sk ylight industry and advances these standards among industry members wh ile providing resources, education and professional programs designed to advance industry businesses and provide greater value for

their customers.P a ge 5 February 4, 2014

Document Control Office (7407M) Office of Pollution Prevention and Toxics (OPPT) Environmental Protection Agency 1200 Pennsylvania Ave, NW Washington, DC 20460-0001

Re: Docket ID EPA-HQ-OPPT-2013-0715

Dear Sir or Madam:

As an employer representative of electrical cont ractors in the construction industry, I am writing in response to the Environmental Protection Ag ency’s (EPA) Identification of the Information Collection posted in the Fede ral Register, December 6, 2013, Federal Register Number 2013-

29192.

Thank you for the opportunity to comment on EPA’s re quest regarding a Survey of the Public and Commercial Building Industry. The survey deals with lead-based paint renovation, repair, and painting.

The Independent Electrical Contra ctors, Inc. (IEC) is a nationa l trade association representing nearly 3,000 member companies an d 55 chapters nationwid e. With over $14 billi on in annual sales, IEC members are a driving force in the electrical and systems contracting industry. IEC serves as the voice of the industry on policies affecting our membership and attempts to further our economy through skilled manpower and the pr inciple of free enterprise.

While many of IEC’s members are among th e top 50 electrical contractors (ranked by EC&M Magazine ), more than 50 percent of members are sm all businesses. IEC members perform work in the following industry sectors: Residential, commercial, indus trial, municipal, hospitals, airports, schools, defense, and both public and private power generation and distribution. IEC members frequently perform work on state and federal projects includ ing work conducted in support of the federal government’s Defense Base Closure and Realignmen t (BRAC) initiative.P a ge 6 Please accept IEC’s comments below:

1. It is the opinion of IEC that questions rais ed by EPA’s Information Collection Request is premature. EPA should first determine if a lead hazard exists in public and commercial buildings.

2. Also, the EPA should minimize the burden to building an d service contractors by first gathering information dealing with the hazard s of lead-based paint by coordination with federal government building owners and manage rs. These entities will likely have the information the EPA seeks to collect regard ing renovation, repair, a nd painting activities. Obtaining such information from federal sources will allow for a more refined and less burdensome Information Collection Request that may be sent to non- governmental entities.

3. It is our opinion that worker s and the public are presently protected on the jobsite by regulation CFR 1926.62 of the Occupational Safe ty and Health Administration (OSHA). The OSHA regulation deals with construction as well as repairs and improvements. Many procedures in the OSHA regulation prot ect the public as well as workers.

Conclusion:

The EPA should minimize the burden to the contra cting industry by first determining if a lead hazard exists from the renovation of governme nt buildings. Only then should additional information be gathered also from federal gove rnment building owners and managers during the removal of lead-based paint. The EPA should caref ully evaluate OSHA regul ations to see if any additional requirements are needed to protect th e public prior to creati ng a new EPA regulation. Redundant regulations require addi tional training and may be expensive to implement for small

business construction contractors.

IEC appreciates the opportunity to share our pe rspective on Renovation, Repair, and Painting of

Lead-Based Paint in Public & Commercial Buildi ngs. We would like to participate in any future development of a new rule.

Respectfully,

John Masarick VP of Codes & Safety1 A. EPA Responses to Comments from the Commercial Properties Coalition

Comment 1: In framing the ICR, EPA is asking the wrong qu estions at this juncture. As a threshold matter, EPA must determine whether a lead hazard exists in P&C buildings. Without a predicate

determination from EPA as to whether RRP activiti es in P&C buildings cause a lead-based paint hazard in the first place, the proposed ICR cannot be relie d upon to produce useful information and therefore does not comport with the PRA’s “pr actical utility” requirement. According to the Supporting Statement:

“ If EPA determines that a [P&C LRRP] regulation is n eeded the Agency will use [any ICR] data ...” That is, if the agency determines no regulation is needed, then the agency would not use the data – and any data thus collected through the ICR will have no pr actical utility. The public will have been burdened in responding to the ICR for no lawfully recognized purpose. The Supporting Statement acknowledges: “The primary purposes of this survey include estimati ng the baseline usage of particular work practices, and how this usage varies with the type of RRP job; determining the number of firms that perform RRP activities in [P&C buildings]; and determining th e types and numbers of RRP activities that are performed.” For paperwork reduction purposes, however , there is no practical utility to collect “baseline data” on work practices and trained residential contr actors if no lead-based paint hazard in P&C buildings is found to exist – because no work practice regulations will be necessary (or lawful) in the absence of a

TSCA section 403 hazard determination.

Response 1: If, prior to conducting the survey, EPA de termines that no lead-based paint hazards are created in P&CBs due to RRP activities, then EPA will not put the survey in the field, irrespective of having an approved ICR. But due to the time requi red for public comment on the ICR and OMB review of the ICR, it is not appropriate for EPA to wait until after it determines whether there is a hazard before receiving approval of the ICR from OMB. Therefore, EPA is requesting that OMB approve the survey (which has a total estimated burden of only 564 hours) at this time.

Comment 2: The Supporting Statement and questionnaire instruments themselves evidence that EPA

would collect data on RRP activities disconnected from any possible lead-based paint hazard. The Supporting Statement sets forth 14 “key” pieces of information that the ICR would collect. The 11th listed “variable” is “LBP Testing,” where “Respondents will be asked about whether they tested for LBP and if so, whether or not the test indicated the presence of LBP.” Similarly, Question 10 (second to last) of the “Manager/Lessor Survey Questionnaire” ask s the respondent: “To your knowledge, has the building we’ve been discussing ever been tested for the presence of lead-based paint?” If a building tested positive for the presence of lead paint, or ifa respondent otherwise believes or knows that leadbased paint exists in the building, it would be useful to gather information on RRP practices. However, if a respondent states that lead-based paint does not exist in the commercial structure or is otherwise unsure of its presence, then any interview or questionnaire response should stop there. Subsequent questioning would gather information on RRP activities that lack practical utility – because EPA lacks authority to regulate such activities without a section 403 showing th at they create lead-based paint hazards. At a minimum, EPA should restructure the survey to begi n with a question on whether a property is known to contain lead paint; if the response indicates the an swer is no, the survey should be terminated.

Response 2: The survey should not be limited to respondents that know that the building tested positive for lead-based paint. The survey co llects data such as the size, frequency, and duration of different job types, all of which can influence exposure to l ead from renovations. Respondents can provide such information – which has practical utility – whethe r or not LBP is known to have been present.

Information from respondents who are unsure about the presence of lead-based paint are clearly relevant to EPA’s analysis of the risks from RRP activities in P&CBs. Some fraction of the jobs where2 respondents are unsure of the presence of lead-based paint will result in lead-based paint being disturbed. EPA can use data on the general prevalence of lead -based paint to estimate how many of these jobs disturb lead-based paint. Therefore, data from thes e respondents has practical utility. In fact, since renovators may not be using lead-safe work practices if they are unaware of the presence of lead-based paint, these may be among the most important renovations on which to collect data. And according to the Painting and Decorating Contractors of America, commercial project specifications generally do not direct lead testing, so the lead status will be unknown in many cases.

Even respondents who state that they worked in P&CBs where lead-based paint was not present will provide responses that have practical utility. In formation on the sizes, frequencies, and durations of such jobs is still relevant, as there is no data to i ndicate that these factors differ significantly between jobs where lead-based paint is known to be present, known to be absent, or unknown. As with jobs where the presence of lead-based paint is unknown, EPA can use these responses in estimating the sizes, frequencies, and durations of different types of jobs irrespective of the presen ce of lead-based paint. Given the challenges in locating entities that c onduct RRP activities disturbing LBP in P&CBs, the approach that is both least burdensome for the r espondent pool and least costly for the Federal government is to ask these questions even if the resp ondent believes that lead-based paint was not present at any of their jobs.

EPA disagrees with the commenter’s presumption th at the order that variables are described in the Supporting Statement or a questionnaire determ ines the relevance of that information in EPA’s analysis, or the degree of practical utility. And gi ven the importance of collecting data from respondents whether or not they have tested for lead-based paint, there is no need to start the questionnaire by asking whether the building has been tested fo r lead-based paint. This is particularly true since the majority of buildings have probably not been tested.

Nonetheless, EPA has revised how the survey asks respondents about lead-based paint. Respondents are asked about the types of RRP activities they performed that disturb painted surfaces, and a single activity type reported for each respondent will be randomly selected for a more detailed series of questions. In the revised questionnaire, the respondent will be asked to recall the most recent job of that type they performed that is eith er known to have disturbed lead-based paint, or disturbed surfaces that may contain paint that was applied before 1978. If none of the recent jobs for the randomly selected activity type meet these criteria, the respondent will still be asked questions about the recent job. (As described above, this provides important informati on about the sizes, frequencies, and durations of different types of RRP activities.) Thus, the survey w ill first attempt to collect information on jobs where LBP was or may have been disturbed. If the res pondent cannot provide that information they will be asked about other jobs, as their responses still have practical utility.

Comment 3: Federal agencies maintain P&C buildings of varying purposes, sizes, ages, and geographic distribution and thus form a reliable cohort to pr ovide a comprehensive catalogue of the RRP activities conducted in a range of P&C buildings. Before se nding an ICR to the public (including many small businesses), EPA should collect renovation and remode ling information from readily accessible federal government sources and thereby minimize the public’s response burden.

However, EPA has yet to explain what, if any, st eps it has taken to collect information sought by the ICR from the federal buildings community. As the U.S. government owns the most buildings in the country, and leases the most commercial space across the nation, fe deral agencies are the most logical and efficient first stop for EPA to gather lead paint and work practices information before the public is screened, surveyed, and questioned. Considering the breadth and diversity of the federal government’s commercial real estate stock, gathering lead-based pa int information from federal owners and occupants3 would minimize the public’s burden to provide the same information. Surprisingly, EPA’s Supporting Statement does not mention any efforts whatsoever to obtain RRP information from federal departments.

Among other suggestions, the Coalition recommends that EPA contact the Architect of the Capitol with regard to solicit information regard ing the rehabilitation of the Capitol Dome and the imminent top-to-bottom renewal of the U.S. House Cannon Building. Certainly, these renovation, repair, and painting projects on Capitol Hill can provide EPA w ith work practices information sought by the ICR – without burdening the public. The Coalition is not persuaded that info rmation on commercial LLRP activities “is not available from any readily accessible sour ce.” The federal government is such a source. With the General Services Administration’s portfo lio totaling 1,500 government-owned buildings, EPA would obtain a far better statistical sample if it just focused on federal government buildings and

facilities.

EPA should coordinate with the National In stitute of Building Sciences (“NIBS”), which manages the federal “Whole Building Design Guide (“WBDG”). If the WDBG and collaboration among its participating agencies cannot provide relevant l ead-based paint information then the Coalition wonders

whether any group or organization could practicably or f easibly supply the information sought by EPA.

The Coalition encourages EPA to leverage the w ealth of experience and depth of knowledge of federal entities as a fair and practicable step to mi nimize the public’s burdens from an ICR that would duplicate the information that could be obtained from the federal building community. Indeed, the federal buildings community is an ideal source for the data EPA seeks to provide “specificity and level of detail ... in order to estimate the potential risks, the industr y baseline, and the costs and benefits of potential regulatory requirements.”

Response 3: Despite the commenter’s claim that Federal buildings are an “ideal source” and that limiting

the data collection to Federal build ings “would obtain a far better sta tistical sample” than conducting a random sample of entities that conduct RRP activiti es in P&CBs, EPA’s proposed probabilistic method for survey sampling allows a sampling error to be calcu lated, so it is a better approach from a statistical standpoint.

Federal buildings represent only part of the universe of P&CBs, and of RRP activities in P&CBs. While the Federal government maintains a large numbe r of buildings, administering the survey to a random sample of entities will better characterize the range of P&CBs, P&CB contractors, RRP activities in P&CBs, and baseline work practices in P&CBs. Th erefore, EPA’s survey will not duplicate available information. It is in the public’s interest that EPA act without delay to collect a robust data set based on a survey of randomly selected entities, including non-Federal entities.

EPA has already collected information about lead-based paint and RRP practices from various Federal entities. The Supporting Statement does not discuss this data because EPA does not need ICR approval to conduct such discussions within the Federal government. 1 Nor is it necessary to document all

of the data that has been obtained from Federal en tities (or any other sources) in order to justify the information collection requested in the Supporting Stat ement. EPA is interested in work practices in Federal buildings because, as the commenter points out, the Federal government owns and leases P&CB space. However, this does not mean that EPA’s in formation collection should be limited to Federal entities. The unique nature of Federal projects su ch as the Capitol Dome renovation means that EPA’s survey is not duplicative of available in formation about Federal buildings.

1 Although the ICR Supporting Statement did note that “EPA has investigated various sources of data on RRP firms and practices, including ... gov ernment reports, and information provided to EPA...”4 Federal building renovations costi ng of tens or hundreds of milli ons of dollars with multi-year timeframes may differ from the RRP activities that other entities (including small businesses) more commonly undertake in P&CBs such as preparing surf aces for repainting in a motel, creating an opening in a wall to perform electrical work in a doctor’s offi ce, or removing a section of a wall in order to repair a broken water pipe in a shopping mall. As shown in Table B2.1 of the ICR Supporting Statement, 76% of entities have 1 to 4 employees, 9% have 5 to 9 employees, 8% have 10 to 49 employees, and just 2% have more than 50 employees. Over 99% of the entiti es in the U.S. qualify as small entities. By contrast the Federal government, with over 2 million civilian employees alone, is not a small entity. As a result, the AOC and other Federal entities may have more tim e and money to address LBP in the absence of any requirement to do so. Thus, the prevalence of wo rk practices to control lead exposures from RRP activities may differ between the Federal government a nd other entities. Conducting a survey (instead of relying solely on data collected from Federal en tities), will allow EPA to make a more in-depth

characterization of the risks from common RRP events , and (if needed) to better estimate the potential costs and benefits of controlling exposures.

Before proposing a survey, EPA tried other mean s of gathering information about RRP activities in P&CBs. EPA has requested info rmation, such as the frequency and extent of renovations in or on public and commercial buildings, the work practices used, and other related questions, on multiple

occasions. 2 To the extent that the RRP industry respo nded to the questions in these Federal Register notices, the answers were not specific enough to be u seful as the basis for EPA’s analysis. For example, one of the questions in the 2010 ANPR was “What typ es of renovations are typically performed in and on public and commercial buildings, and how often is each type of renovation performed? What is the span or range, both typical and extreme, in size and dur ation of each type of renovation job?” A typical response was “Interesting questions, renovations de pend on specific project work scope, building use function, or function change. The span may encompa ss simple, basic maintenance to complete re-use.” Such a response does not provide the type of concrete data that EPA seeks for an analysis to determine whether lead hazards are created by RRP activities in P&CBs. Therefore, EPA concluded that it should conduct a survey to gather this information.

While the commenter is concerned that it will be difficult for non-Federal entities to complete the survey and “wonders whether any group or organi zation could practicably or feasibly supply the information sought by EPA,” the actual evidence indicates that non-Federal respondents can readily complete the survey. EPA conducted a pretest of th e survey with 6 private sector respondents, and the pretesters did not have difficulty completing the questionnaire or supplying the information sought by

EPA.

OMB’s guidelines indicate that agencies should ensu re that “survey results are representative of the target population.” While the commenter asserts that Federal buildings are representative of P&CBs, in Comment #4 this same commenter compared EPA’s survey to the Energy Information Administration’s Commercial Building Energy Consumption Survey (CBECS). EIA did not limit CBECS to Federal buildings, although that would have significantly reduced reporting burden for the private sector. Like EIA, EPA is proposing to collect data from a representative random sample instead of only surveying the Federal government.

2 See “Lead; Renovation, Repair, and Painting Program fo r Public and Commercial Bu ildings” (advance notice of proposed rulemaking [ANPR]) (75 FR 24848, May 6, 2010); “Lead; Renovation, Repair, and Painting Program for Public and Commercial Buildings; Request for Information and Advance Notice of Public Meeting” (77 FR 76996, December 31, 2012); and “Lead; Renova tion, Repair, and Painting Program fo r Public and Commercial Buildings; Notice of Public Meeting and Reopening of Comment Period” (78 FR 27906, May 13, 2013).5 Comment 4: The Coalition submits that the sampli ng methodologies and questionnaire instruments proposed in the ICR do not appear likely to yield data of “practical utility.” EPA intends to pose brief screening questions to 10,650 entities and plans to have 402 respondents comp lete a questionnaire. Without additional information on the methodology to be used in such a survey, we are concerned that the respondent pool of 402 surveys will be insufficient to reflect the diversity of the public and commercial building stock.

The 2003 Commercial Buildings Energy Consumption Survey (CBECS) conducted by the Energy Information Administration relied on 5,215 completed surveys to characterize 4.9 million commercial buildings in the U.S. Given the si milarities between the ICR and the CBECS survey populations (i.e., the U.S. commercial building stock) it is unclear whether 402 completed lead ICR surveys will be sufficient. If each su rveyed entity is considered a “bu ilding” then 402 responses represent only 0.008% of the commercial building stock. By comparison, the CBECS survey relied upon a sample size of 0.1% of the building stock.

Nonetheless, EPA states that the ICR will “use a probability sample to calculate nationally representative parameter estimates” and will “produce statistically valid estimates” of RRP jobs in commercial buildings. EPA provides no information or background materials to explain whether the “screening” sample or the “survey” sample will prod uce statistically valid es timates on lead-based paint and work practices information to justify an expansive new regulatory program.

According to Census Bureau data there were approximately 740,000 construction firms in the U.S. in 2012, including 212,000 firms engaged in th e construction of buildings, 39,000 firms engaged in heavy and civil engineering construction, and 478,000 fi rms engaged in specialty trade contractors. Even if all of the responses EPA ultimately collects were to come from the building and specialty trade segments of the contractor community, this is not likely to produce “statistically valid” data or data that is representative of standard industry practices.

Moreover, the likelihood that the exceedingly low number of sampled buildings and contractors will not result in data of “practical utility” is exacer bated by the diversity of the U.S. commercial building stock in terms of size, age, geography, uses, and occupancy types. The “practical utility” of any information gathered from the 10,650 “screened”/402 “fully surveyed” respondents is thus further diminished, because the number of surveyed jobs w ill be so low as to preclude reasonable estimates regarding lead-based paint presence, RRP practices, a nd dust exposure across the widely diverse U.S. stock of commercial buildings.

EPA made a bald conclusion with no articulated reasons, justifications, or back-up documentation to conclude that the ICR will allow it to produce statisti cally valid estimates. For that matter, neither the Supporting Statement nor any other document provides an explanation as to why EPA believes the ICR meets the Office of Management and Budget’s “Sta ndards and Guidelines for Statistical Surveys” (September 2006). Among other things, OMB’s guide lines states that agencies must “select[ ] samples using generally accepted statistical methods,” such that “[t]he size and design of the sample must reflect

the level of detail needed in tabulations and ot her data products, and the precision required of key estimates.” Further, agencies must “ensure that survey results are representative of the target population so that they can be used with confidence to inform d ecisions.” It is not apparent to the Coalition that EPA has taken such steps to assure the statistical reliab ility of any information that may be gathered through

the ICR at issue.

Response 4: If it is not apparent to the commenter that EPA has taken steps to assure the statistical reliability of the information to be gathered throu gh the survey then the commenter apparently overlooked6 the information in the ICR supporting statement about the survey methodology and the precision of the estimates that will be derived from the survey data , because the ICR documents this information.

In response to the commenter’s question about whether the “screening” sample or the “survey” sample will produce statistically valid estimates on lead-based paint and work practices, the screening questions in the survey are designed to determine whether the respondent disturbs painted surfaces in P&CBs, which is relevant to determ ining how many entities engage in that activity. As noted in Table 4.2 of the ICR Supporting Statement, “Responses from th e screening and scope questions will be used to estimate the universe of relevant firms.” Since only the respondents that complete the full survey are asked about work practices and lead-based paint, th e estimates for those parameters will be based on the “full completes.” The screening questions and the re maining survey questions are shown in the survey questionnaires, which were included as attachme nts to the ICR Supporting Statement.

Contrary to the commenter’s contention that EPA made a “bald conclusion” that it can produce statistically valid estimates based on the survey data, the ICR Supporting Statement provides the documentation and justifications for EPA’s conclusi ons. EPA’s survey complies with OMB’s guidelines that agencies must select samples using generally accepted statistical methods, and that the size and design of the sample must reflect the level of detail n eeded in tabulations and ot her data products and the precision required of key estimates. EPA has proposed using a random stratified sample, which is an accepted statistical method. The sampling frame is described in section (B)(2)(b)(i) of the Supporting Statement, and the stratification of the survey is described in Section (B)(2)(b)(iii) of the Supporting Statement, as well as in Table B2.2. The parameter ma rgins of error are described in Table B2.2 of the ICR Supporting Statement, and in sections (B)(2)(b)(ii) and (B)(2)(c)(i). These margins of error, which

were calculated based on the total number of re levant entities in Table B2.1 and the number of respondents in Table B2.2, specifically address the pr ecision of the estimates. These precision rates will be adequate to characterize the number of regulated activities and the extent to which renovators currently use certain containment and cleaning practices.

The commenter’s comparisons between EPA’s survey and CBECS are invalid because the commenter’s premise (that the survey population fo r EPA’s ICR is the commercial building stock) is incorrect. Despite the commenter’s claims that ther e are “similarities” between the survey populations in CBECS and EPA’s survey, there are significant differe nces between the two survey populations. CBECS is a study of the commercial building stock, while EPA’ s survey is of entities that conduct RRP activities. Renovators can work in multiple buildings over the cour se of a year, so a survey of renovators may reflect work in a much larger number of buildings. Seve ral hundred renovation firms could work in several thousand buildings over the course of a year.

There are numerous additional reasons why CBECS uses a larger sample than EPA’s survey. The commenter notes that the U.S. commercial building stock is diverse in terms of size, age, geography, uses, and occupancy types. Energy consumption can vary with these factors, and the CBECS sample frame has to be large enough to account for this variability. For example, buildings in northern zones may require more energy for heating while buildings in southern zones may use more energy for cooling, which is why the CBECS sampling plan has an area plan as well as a list frame. Building square footage is highly correlated with energy consumption, which is why the CBECS list frame is designed to sample large buildings at a higher rate than sma ll buildings. Similarly, older buildings tend to be less energy-efficient than newer ones, which justifies gathering data on mo re buildings in CBECS in order to reflect a wide range of building vintages. The reasons for the rela tively large size of the CBECS sample do not apply to EPA’s survey. The commenter has not demonstrated, for example, that containment or cleaning practices for RRP activities depend on the geography, building size, or specific age of the building where the work is conducted. The commenter is wrong that CBECS is a “similar type of survey” as EPA’s survey, so the comparisons to the CBECS sampling plan are not ge rmane. EPA’s survey is designed to collect7 information about RRP activities and work practices among entities performing non-residential work. Since EPA’s target universe is renovators wh ile the commercial building stock is the focus of CBECS, CBECS is not an appropriate comparison with EPA’s survey.

The difference in the target universes for EPA’s su rvey and CBECS is not the only reason that the commenter’s claims about the validity of EPA’s estim ates are inapt. More fundamentally, the precision

of a statistic estimated from a random sample is determined by the sample size, not the population size. According to Moore, McCabe, & Craig’s Introduction to the Practice of Statistics (6th ed.) this is true as long as the population is at least 100 times larger than the sample, which is the case for EPA’s survey. The formula used for the estimated margin of error,

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ఈ ሾ ට ቀ ௣௤

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, is based on the size of the sample, not the size of the universe being sampled.

EPA is proposing a sample size and sampling st rategy that produces statistically valid results, yet limits the number of respondents to an appropriate number for this analysis in order to impose the least burden that is necessary for the proper perform ance of the Agency’s function. EPA has documented the sampling plan and the precision in the ICR Supporti ng Statement, and the data to be collected have practical utility. Therefore, the survey and the ICR comply with the guidelines for information collection and statistical surveys.8 B. EPA Responses to Comments from the Independent Electrical Contractors

Comment 1: It is the opinion of IEC that questions ra ised by EPA’s Information Collection Request is premature. EPA should first determine if a lead hazard exists in public and commercial buildings.

Response 1: See the response above to Comment #1 by the Commercial Properties Coalition

Comment 2: Also, the EPA should minimize the burden to building and service contractors by first gathering information dealing with the hazards of lead-based paint by coordination with federal government building owners and managers. These enti ties will likely have the information the EPA seeks to collect regarding renovation, repair, and painting activities. Obtaining such information from federal

sources will allow for a more refined and less burdens ome Information Collection Request that may be sent to non-governmental entities.

Response 2: See the response above to Comment #3 by the Commercial Properties Coalition

Comment 3: It is our opinion that workers and the p ublic are presently protected on the jobsite by regulation CFR 1926.62 of the Occupational Safety and Health Administration (OSHA). The OSHA regulation deals with construction as well as repair s and improvements. Many procedures in the OSHA regulation protect the public as well as workers.

Response 3: This comment does not directly address the survey or the ICR. EPA notes that the OSHA regulations at 29 CFR 1926.62 do not apply to all RRP activities in P&CBs. Also, since the OSHA regulations are designed to protect workers, they do they necessarily protect the public from all lead hazards resulting from RRP activities in P&CBs. Theref ore, it is important that EPA conduct a survey in order to better understand the work practices that are commonly used during RRP activities in P&CBs and the potential for lead-based paint hazards to be created.