U.S. Environmental Protection Agency May 2013

1 

### Discussion Guide: Background and Discussion Areas for Public Meeting on EPA’s Proposed Renovation , Repair and Painting Rule for Public and Commercial Buildings

T his discussion guide is intended to assist the public and other stakeholders in preparing for the June 26, 2013 public meeting regarding the potential regulation of renovation, repair and painting (RRP) activities in p ublic and c ommercial b uildings (P&CBs)

.

The discussion guide provides the following information:

• Purpose Statement

• B ackground Information

• S ummary of C omments R eceived

• Discussion Areas

• Next Steps

Purpose Statement

The U.S. Environmental Protection Agency ( EPA ) is convening a public meeting to allow interested parties to present relevant information that the EPA may use to develop a n RRP program for P&CBs

. On May 13 , 2013 the EPA published an announcement in the Federal Register including details on how potential participants can register to attend [ http://www.regulations.gov/#!documentDetail;D=EPA

- HQ

- OPPT

- 2010

- 0173

- 0162 ]. The meeting will be held on June 26, 2013, from 8:30 a.m. to 12:30 p.m. at the EPA head quarters , Room 1153 EPA East, 120 1 Constitution Ave., N.W., Washington, DC 20 004

. In anticipation of this meeting, the EPA published a Federal Register Notice on December 31, 2012, request ing information from the public on any relevant data or other information that the EPA may use in making its regulatory determinations. The EPA is issuing this discussion guide to provide a
summary of information received in response to th e December 31, 2012 Federal Register Notice and to help structure pu blic input during the meeting.

Background Information

Congress enacted Title IV of t he Toxic Substances Control Act (TSCA) as part of the Lead

Based Paint Hazard Reduction Act of 1992 to reduce the public’s exposure to lead , particularly from lead

- based paint. The Act directs the EPA to promulgate regulations addressing renovation activities in target housing, public buil dings constructed before 1978, and commercial buildings that create lead

- based paint hazards

. In doing so, Congress also imposed a statutory deadline

. In April 2008, the EPA issued a final RRP Rule under TSCA section 402(c)(3)

. The 2008 RRP Rule regulated renovation, repair, and painting activities in target housing, which is most pre

1978 housing, and child

- occupied facilities (COFs)

- defined in the rule as a subset of P&CBs in which young children spend a significant amount of time.U.S. Environmental Protection Agency May 2013

2 The EPA was sued on the 2008 RRP R ule fo r , among other things, failing to address P&CBs by the statutory deadline. The EPA entered into a settlement agreement that, among other things, establishes a timeline for action on P&CB renovations. Under the terms of the agreement, as subsequently amended, the EPA agreed to sign a proposed rule covering RRP activities in P&CBs by July 15, 2015, unless the agency determines that these activities do not create lead

based paint hazards. The agreement further calls for the EPA to hold a public meeting on or befo re July 31, 2013, and offer an opportunity for stakeholders and other interested members of the public to provide d ata and other information that the EPA may use in making its regulatory determinations.

The EPA has already taken several actions to facilit ate public input and gather information . On May 6, 2010, the EPA issued an Advanced Notice of Proposed Rulemaking (ANPR) in the Federal Register on renovations of P&CBs. a The ANPR reviewed relevant information already collected by the agency that can inform regulatory decision making , and invited the public to provide any available information that the EPA should consider . Commenters expressed concerns that the EPA lacked enough information to make a hazard determination for P&CBs

, and that a ny regulations would be costly and duplicative in light of the existing Occupational Safety and Health Administration (OSHA) L ead

- I n

- C onstruction S tandard. Commenters also indicated that use of lead

- based paints and coatings may have decreased substantiall y on P&CBs after a 1978 Consumer Product Safety Commission (CPSC) ban on consumer lead

- based paint. (16 C

. F

. R

. § 1303.1, 47 Fed. Reg. 44193 (September 1, 1977 )). The CPSC ban applies to all consumer lead

- based paint and the use of lead

- based paint on build ings where the public could access the paint , but exempts lead

- based paint on structural steel, steel doors and windows, and maintenance coatings used o n commercial and industrial buildings. ((16 C

. F

. R

. § 1303.1, 47 Fed. Reg. 44196 (September 1, 1977)).

As noted above, the agency already has information that can inform rulemaking decisions. Nonetheless, the EPA issued a Federal Register Notice o n December 31, 2012, announcing its plan to hold a public meeting on June 26, 2013 to accept and discuss any ot her available information that the EPA may use in developing its regulatory determinations. In particular , the EPA requested stakeholders and other interested members of the public to submit any relevant data and information pertaining to five topics :

1. The manufacture, sale, and uses of lead

- based paint after 1978. 2. The use of lead

- based paint on public and commercial buildings. 3. The frequency and extent of renovations of public and commercial buildings. 4. Work practices used to renovat e public and commercial buildings. 5. Dust generation and transpor t from exterior and interior renovations of public and commercial buildings.

a The ANPR and other information related to the “Lead; Renovation, Repair, and Painting Program for Public and Commercial Buildings” action are available electronically at www.regulations.gov , docket ID # EPA

– HQ

– OPPT

– 2010

– 0173; FRL

– 8823

– 6; http://www.regulations.gov/#!docketDetail;D=EPA

- HQ

- OPPT

- 2010

- 0173.U.S. Environmental Protection Agency May 2013

3 In addition to the request for information in the December 31, 2012 Federal Register Notice, the E PA directly notified potential stakeholders and interested parties, including government agencies, businesses, individuals, interest groups and trade organizations.

Summary of Comments Received

The EPA received seventy

- two public comments in response to t he December 31, 2012 Federal Register Notice

.

General comments supporting P&CB regulations

. Thirty commenters supported development of regulations required under the statute. For example, one commenter mentioned that the “playing field ” would be leveled if lead safe work practices were required for all pre

- 19 78 buildings and there would be less confusion regarding work practices and bidding on jobs. They also state that

a ll businesses that disturb lead

- based paint should be trained and follow the minimum requirements of the 2008 RRP Rule. One commenter suggested that the EPA should base any decision to eliminate work practice requirements on compelling evidence from industry , and that

a n absence of evidence should be understood as confirmation that the work is unsafe given Congre ss ’ and the EPA ’ s previous findings . This commenter also stated that the EPA should style its language to fit model codes and provide model code language. Of those who supported the regulations

, seventeen are environment al consultants or provide environmental training services, four are contractors, one is an inspector, two are trade associations, four are environmental groups, one consists of law students and the affiliation for one commenter is unknown.

General comments opposing P&CB regulations

. Twenty

- one commenters opposed any additional regulation, with several commenters expressing their concern that it would increase costs and time to complete projects. For example, numerous commenters expressed a general

c oncern that additional RRP requirements will be a significant financial burden on the renovation industry. One commenter suggested that the cost of compliance with additional rules will discourage consumers from hiring appropriately certified individuals a nd businesses. Another
commenter s uggested that the EPA review the costs of an RRP rule for P&CBs versus the benefits of encouraging renovations to improve energy efficiency. Of those opposing the regulation

, eleven are contractors , three are trade associations, one is a consultant and the affiliation s for six commenters are unknown.

Neutral comments. Nine commenters did not express support for or opposition to and/or asked questions regarding the rulemaking. For example, commenters asked if children frequent public and commercial buildings, offered to “partner” with the EPA to perform additional studies, and offered to review additional data or studies should th ey become available. Four commenters were from trade associations, three were training providers, one was from a city government and the affiliation for one commenter was unknown.

Comments related to the EPA ’ s requests for information

. A number of commenters provided information or comment s related to one or more of the EPA’s requested topic areas: (1) t he manufacture, sale, and uses of lead

- based paint after 1978

, (2) the use of lead

- based paint on public and commercial buildings, (3) the frequency and extent of renovations of public andU.S. Environmental Protection Agency May 2013

4 commercial buildings, (4) w ork practices used to renovat e public and commercial buildings , and (5) d ust generation and transport from exterior and interior renovations of public and commercial buildings. These commen ts, as well as relevant comments received in response to the 2010 ANPR, are summarized in the applicable section below.

Comments related to the EPA ’ s authority and obligations under TSCA. Several commenters question ed or affirmed the EPA ’s authority under TSCA to promulgate regulations for P&CBs. Some commenters suggested that the EPA’s previous finding s for the 2008 RRP Rule that all RRP activities involving lead

- based paint create a hazard is sufficient to support the hazard finding under TSCA for P&CBs

. Other commenters suggested that the EPA cannot rely on data gathered for the 2008 RRP Rule because of the fundamental differences between use, occupancies and work practices for residential buildings and P&CBs

. Some commenters mentioned th at if industry seeks exemptions from regulation they should present clear evidence that supports this assertion and that further study of renovation projects is not necessary. Other commenters stated that the EPA is obligated to find a hazard under TSCA Se ction 403 before proposing any P&CB regulations

. One commenter suggested that because seven years separated the hazard finding for residenc es and the 2008 RRP Rule, a similar schedule should be implemented for P&CBs.

Information on adverse human health effects . Some commenters provided or referenced government and peer

- reviewed research that may be relevant to identifying adver se human health effects

. 1 Some commenters suggested that the 2008 RRP Rule has not reduced blood lead levels in children. Some co mmenters stated that the dangers of lead exposure are well established for children and adults

, and that al l people, adults and children, are impacted by lead exposure ; a single exposure can poison a child or adult. One commenter also suggested that the 2008 RRP R ule hazard finding should apply to public and commercial buildings as well.

Offers and suggestions for additional information gathering

. Several commenters offered to assist the EPA in collecting relevant information. These commenters claimed that the information requested by the EPA in its December 30, 2012, Federal Register request is largely unknown or has not been previously collected. Some commenters suggested that the EPA work with industry to collect this data and to identify additional research needs. Other c ommenters also suggested that the EPA consider working with other federal agencies to gather the necessary information.

Miscellane ous comments. One commenter posed questions on t he timeline for any rulemaking. One commenter stated that the EPA should explore its authority to address lead

- based paint hazards in P&CBs under RCRA and CERCLA.

Comments inapplicable to P&CBs. Eleven commenters provid ed comments about the RRP Program for residential buildings or provided information that was not applicable to the Federal Register Notice

.U.S. Environmental Protection Agency May 2013

5 Discussion Areas

The public meeting will center on the five topics referenced in the December 31, 2012, Federal Register Notice. These topics reflect the questions posed and types of information the EPA requested in the May 6, 2010 ANPR

. The EPA strongly encourages meeting participants to share
any substantive data or stu dies , or citable sources rel a t ed to these five discussion areas, or otherwise relevant to the renovation of P&CBs, as they will be the most informative to the EPA’s regulatory determinations. The EPA will also accept anecdotal information, comments, and op inions related to renovations in P&CBs. Information can be provided either at the public meeting or by submitting comments in the Federal Register docket. The EPA expects that submitted information could be used to inform hazard and exposure determinations

, risk determinations, baseline work and cleaning practice assumptions

, cost

- benefit analyses, and, if a regulation is proposed, the requirements and scope of the regulation.

(1) The manufacture, sale, and uses of lead

- based paint after 1978.

Congress directed the EPA to promulgate regulations for renovation and remodeling activities in “public buildings built before 1978, and commercial buildings” that create lead

- based paint hazards. 2 Notably, the statutory directive does not provide an age qualifier for commercial buildings as it does for public buildings. W hether post

- 1978 commercial buildings contain lead

based paint, and whether certain renovations therein would create a lead

- based paint hazard are significant questions . The EPA welcomes any a vaila ble information or data that would help clarify the post

- 1978 market (manufacture, sale, and use) for paint and other coatings that contain lead. This information may ultimately help the EPA determine the extent to which post

1978 commercial buildings may contain lead

- based paint (or other lead

- containing coatings), and whether the renovation of buildings built after 1978 may create a lead

- based paint hazard.

The EPA continues to accept data and information on the manufacture, sale, and use of lead

based paint after 1978, but has gathered or received the following information relevant to this topic:

• In 1978, t he CPSC banned paint and similar surface

- coating materials for consumer use that contain lead or lead compounds

. 3 The ban eliminated all consume r paint containing more than 0.06% lead (0.009% lead as of August 14, 2009 )

. b Although the ban mainly applied to household consumer paints, CPSC did extend the ban to “products which are used or enjoyed by consumers after sale, such as paints used in residen ces, schools, hospitals, parks, playgrounds, and public buildings or other areas where consumers will have direct access to the painted surface.” 4

• The ban does not extend to commercial and industrial maintenance coatings. In its 1978 rule, CPSC acknowledge d that most industrial and commercial maintenance coatings are not available to consumers and therefore are likely not “consumer products.” 5 The
p reamble to the final rule described examples of exempted industrial paints, described as

b The 1978 CPSC consumer ban, 16 C.F.R. § 1303.1, was broader than an earlier 1973 ban under the Federal Hazardous Substances Act on all household lead

- based paint shipped in interstate commerce and composed of over 0.5% lead between 1973 and 1974, and 0.06% thereafter. 38 Fed.Reg. 27012, 27017 (September 27, 1973). 16 C.F.R. § 1500.17(6)(i); Consumer Product Safety Act, 15 U.S.C. §§ 2507, 2508.U.S. Environmental Protection Agency May 2013

6 glossy enamels and re d lead primers used on machinery, equipment, steel doors and frames, and steel structural members as safety marking paint (yellow lead chromate). 6 The summary also stated that commercial building maintenance coatings used on plumbing, electrical conduits a nd equipment, steel doors and exposed steel structural members are exempt. 7 Notwithstanding the exemption, lead paint and coatings packaging must contain a warning label that the product contains lead. 8

• Since the 1978 ban, use of lead paint appears to have decreased substantially. The U.S. Geological Survey (USGS) estimates that the quantity of lead consumed by the paint industry declined from approximately 55,000 short tons (110,000 pounds) in 1972 to less than 9,000 short tons (18,000 pounds) in 1993. 9 USGS estimated that lead paint consumption levels would not decline any further because the paint industry had already eliminated most of its lead

- based paint by 1993. 10

• According to industry estimates, the U.S. consumed twenty

- two million pounds of chr ome yellow and orange pigments in 1991. 11 Consumption data after 1991 for chrome yellow is not publically available from the USGS or other sources. However, data indicates that chrome yellow imports continued after 1991 until at least 2003 . Chrome yellow pigment imports increased between 1991 and 2003, from approximately 7,685,000 pounds 12 to 12,247,265 pounds. 13

• According to industry estimates, t he U.S. consumed approximately five million pounds of molybdate orange in 1991. 14 Consumption data after 1991 fo r molybdate orange is not publically available from the USGS or other sources. However, data indicates that

m olybdate orange imports continued after 1991 until at least 2003

. Molybdate orange pigment imports increased from 1,790,065 pounds in 1991 15 to a pe ak of 4,514,703 pounds in 1998; 16 imports decreased to 2,174,972 pounds in 2003. 17

• According to an industry source , in 1991, the U.S. consumed six million pounds of corrosion inhibiting lead pigments, such as red lead, basic lead

- silico chromate, basic whit e lead (lead carbonate), and other specialty corrosion

- inhibiting lead pigments (including diabasic lead phosphate, lead salicylate, di

- and tribasic lead phosphosiclicate, and flake metallic lead)

. 18

• White lead consumption in the U.S. declined from 18,549 short tons (37,098,000 pounds) in 1952 to 4,412 short tons (8,824,000 pounds ) in 1977. After 1977, government reports no longer differentiated among different lead pigment types (e.g.

, white lead, red lead and litharge, and other lead pigments). Although white lead use declined after the 1978 ban, basic white lead was used as a corrosion inhibiting lead pigment into the 1980s. 19 In 1983, less than one million pounds of white lead (5% of white lead’s total consumption) was added to lead paints and coatings. 20

• O verall imports of lead carbonate have declined from 175,181 pounds in 1991 21 to 0 pounds in 2000 and 2002 ; imports increased to 1,102 pounds in 2003. 22 Lead carbonate is used in paint, but has other uses as well. The import data do not allow the EPA to distinguish its use.

• Lead

- based driers

, such as lead napthenate, lead octanoate, and lead tallates , can also be added to paint and coatings to accelerate or control paint hardening. 23 From the 1970s until at least the mid

- 1980s, commercial lead driers contained approximately 30% lead. 24 In 1982, the U.S. consumed approximately 1,180,000 pounds of lead based

- driers. 25U.S. Environmental Protection Agency May 2013

7 The EPA encourages submission of addition al data and information on the manufacture, sale, and uses of lead

- based paint after 1978. Such information may be available from the following

sources:

• Paint industry market research or records.

• Building design or construction specifications, both pre

- and post

- 1978.

• Building industry management standards or records

.

• Maintenance records

.

• Information on p roducts that contain lead , including usage and composition data

.

• Information on products that used to contain lead, including usage and composition

data, and replacement ingredient timing.

In response to the December 31, 2012 Federal Register N otice, the EPA received the following comments related to this discussion area:

• O ne commenter stated that lead paint use was not “consequential” in P&CBs after 1960

.

• A nother commenter stated that the EPA should follow the statutory language and assume that all P&CBs contain lead

- based paint unless evidence to the contrary is presented by industry.

(2) The use of lead

- based paint on public and commercial buildings

The use of lead

- based paint and other surface coatings , both past and present, is a n important

co nsideration for the EPA in determining the scope of buildings that might contain lead

- based paint /coatings , the age of those buildings, what components might be coated with lead

- based paint /coatings , where those components are typically located within or o n the building, and the types of renovation activities that might disturb those components. Information on the use of lead

- based paint /coatings on P&CBs could help the EPA focus any regulation on those buildings, building ages and specific renovation activities that may create lead

- based paint hazards.

The EPA continues to accept additional information on the use of lead

- based paint on P&CBs, but has gathered or recei ved the following information:

• Lead

- based pigments, chromium yellow and molybdate orange, were applied to automobiles, to signs, as machinery and equipment finishes, and as traffic paints, 26 but may have also been used on P&CBs.

• Red lead, basic lead

- sili co chromate, basic white lead, and other specialty corrosion

inhibiting lead pigments (diabasic lead phosphate, lead salicylate, di

- and tribasic lead phosphosiclicate, and flake metallic lead) 27 were used as primers and/or paint additives to prevent corros ion on steel surfaces

, 28 and may have been applied to steel doors, steel frames, 29 and other areas of P&CBs.

• Paint with l ead

- based driers w as likely used on P&CBs, as they were mainly used as architectural coatings and in industrial systems. 30U.S. Environmental Protection Agency May 2013

8 The EPA encourages submission of additional data and information on the use of lead

- based paint. Such information may be available from the following sources:

• P&CB design specifications, both pre

- and post

- 1978.

• P&CB construction contracts, both pre

- and post

- 197 8.

• Industry standards, both pre

- and post

- 1978.

• Market data on use, including manufacture, import or sale, of lead

- based paint or similar surface coatings used on P&CBs.

• Federal, state and local laws, regulations, standards, etc., that could affect the p revalence of paint or other surface coatings that contain lead on P&CBs.

In response to the December 31, 2012 Federal Register Notice, the EPA received the following comments related to this discussion area:

• One commenter suggested that the International Building Code (IBC) might be a source of information on when and where lead

- based paint might be used

.

• O n e commenter suggested that lead paint continues to be used on bridges, railways, ships, lighthouses and other steel structures.

• C ommenters disagreed on whether the CPSC 1978 lead

- based paint ban impacted the use of lead

- based paint in non

- residential buildings. For example, some commenters suggest ed that the CPSC ban in residential buildings set a de facto standard for paint use in all building types . Other commenters cautioned that the EPA should assume that lead

based paint continued to be used. One commenter stated that the Department of Defense ( D O D ) used lead

- based paint on its buildings until the end of 1988

.

• One commenter advised that the OSHA standards for lead require employers to undertake worker exposure assessment s. Therefore, industry should have records regarding the presence of lead

- based paint on P&CBs . Th is commenter further suggested that the failure to comply wi th OSHA or for industry to provide this data to the EPA should not delay any regulation of P&CB s

.

• One commenter stated that building use pattern s var y more widely in mixed use neighborhoods possibly blurring the distinction between where lead

- based paint use is allowed under the CPSC ban.

(3) The frequency and extent of renovations o f public and commercial buildings.

The EPA is accepting additional information regarding the frequency and extent of renovations of P&CBs, including but not limited to how often P&CBs are renovated or repainted and the typical size or magnitude of those renovations. This information could , among other things, help further inform exposure scenarios that are a component of the analyses to determine whether or not renovations of P&CBs create lead

- based paint hazards.U.S. Environmental Protection Agency May 2013

9 The EPA continues to accept data and information regarding the frequen cy and extent of renovations of P&CBs, but has gathered or received the following information:

• The G eneral Services A dministration (GSA) S tandard L ease, GSA FORM L201C, Section 6. 12 provides information on paint maintenance practices and a repainting schedule for the over 8,100 leases in GSA’s portfolio.

The frequency and extent of renovations of P&CBs may vary based on t he type of renovation activity or t he type and vintage of building

. The EPA encourages submission of additional data and informatio n on the frequency and extent of renovations of P&CBs. Such information may be available from the following sources:

• Building or management records

.

• Maintenance records

.

• Best management practices

.

• Corporate or agency guidelines.

In response to the December 31, 2012 Federal Register Notice, EPA received the following comments related to this discussion area:

• O ne commenter stated that estimating the frequency and extent of renovations in P&CBs would be difficult to determine . However, “ renovations ”

– as defined for the 2008 RRP Rule

- are routine and likely occur everyday in commercial buildings

. This commenter urged the EPA to define “ renovation ” in a way that would exclude routine maintenance, repair and cleaning.

• One commenter s uggested that the EPA modify the methodology used by the Harvard Joint Center on Housing Studies for non

- residential buildings.

• Commenters also provided anecdotal evidence that c ommercial buildings undergo more frequent renovations than residential buildings.

In additi on, s everal commenters on the 2010 ANPR offered similar anecdotal information on the frequency and extent of renovations of various P&CB sectors. One stated that, in the electric energy sector, most renovations are small

- scale modifications and large renovations are rare. Another stated that P&CBs are typically repainted every five years, although this may occur more frequently in retail b usinesses. One commenter estimated that major remodels can take a year to complete, while minor renovations are more typically performed within a week. This commenter noted that hospitals will have continuous minor renovations in process, while schools typ ically conduct minor renovations during breaks in the school year. This commenter also stated that major remodels in P&CBs occur every 15 years, on average.

(4) Work practices used to renovate public and commercial buildings.

In determining whether or not renovations of P&CBs create lead

- based paint hazards, understand ing what work practices are currently being implemented, including but not limited to dust and debris containment and cleanup , is desirable . Current work practices will also informU.S. Environmental Protection Agency May 2013

10 the starting point, or baseline, for an analysis of what, if any, additional work practices are necessary to reduce or eliminate lead

- based paint hazards in P&CBs , should they be identified

. The EPA continues to accept additional data and information on work practices that are currently implemented for P&CBs, but has gathered or received the following information:

• The GSA S tandard L ease, GSA FORM L201C, Section 6.07 provides information on required cleaning practices and cleaning schedule for the over 8,100 leases in GSA’s portfolio.

• The OSHA Lead

- In

- Construction Industry Standard applies to all construction work where an employee may be exposed to “lead.” 31

• Unlike residential household lead

- based paint waste, commercial lead

- based paint waste must be managed under the Resource Conservation and Recovery Act. 32

• F ederal military guidelines strongly recommend that waste determinations be made before a project begins , by either analytical means or knowledge of the waste

. 33 This may involve testing multiple paint sam ples. 34

Current work practices for dust and debris containment and cleanup during and after renovations of P&CBs might vary based on the type of renovation activity, the type of building, and the location of renovation activity in the building. The EPA enc ourages submission of a dditional data and information on work practices . Such information may be available from the following

sources:

• V oluntary industry standards

.

• G eneral standards of care for renovating P&CBs with lead

- based paint

.

• F ederal, state, or local laws and regulations.

In response to the December 31, 2012 Federal Register Notice, the EPA received the following comments related to this discussion area:

• One commenter provided several voluntary industry standards that may address work practices in P&CBs, including the National Institute of Building Sciences’ ( NIBS ) Whole Building Design Guide (WBDG); the U

. S

. G reen B uilding C ouncil’s (USGBC) Leadership in Energy and Environmental Design ( LEED ) work practices for new construction and maj or renovations; LEED Existing Buildings Operations and Maintenance (EBOM); LEED Commercial Interiors (CI); National Green Building Standard / International Code Council ( ICC ) 700; and Green Globe s

.

• Other commenters pointed out that the EPA should consider the relevant (ICC) codes

– the model IBC, International Existing Building Code (IEBC), and the International Prop erty Maintenance Code (IPMC).

• One commenter suggested that compliance with some OSHA requirements can protect the public as well as re novation workers.

• A few commenters indicated t hat compliance with the OSHA stand ard s may be low and suggested that the EPA should regulate P&CBs rather than rely on OSHA standards. For example, one commenter suggested that some workers have not taken necessary OSHAU.S. Environmental Protection Agency May 2013

11 precautions to protect themselves or other individuals in work areas containing lead

based paint.

• Several c ommenters highlighted the fact that an “ EPA stand ard ” would protect occupants of P & C B s , and therefore not conflict with OSHA standards for lead

- exposed workers. One commenter suggested that because OSHA housekeeping standards (29 CFR § 1910.1025(h)) may be inadequate in light of more recent research, 35 the EPA should address containment and cleanu p in all P&CBs.

• Some c ommenters n oted that other environmental laws may not protect vulnerable populations. For example, s tudies show that families of LBP workers may b e exposed to "take

- home" lead, and the EPA should take steps to protect them . One commenter noted that some regulations require containment to reduce lead releases into waterways or into the ground , but these practices may increase the level of lead dust to which employees may be exposed.

• Some c ommenters were generally supportive of ad ditional regulations for P&CB, with some stating that the EPA should establish work practice requirements consistent with the 2008 RRP Rule requirements

.

• Several c ommenters suggested that the EPA consider the proximity of commercial buildings to resident ial property. In addition, some commenters requested that the EPA require adjacent properties to be notified when renovations occur. For interior renovations in commercial buildings, the EPA should distinguish between work done where the public does and does not have regular access.

• Other commenters suggested work practice s for future regulations, including: requiring dust clearance testing for all renovation s of P&CBs above the de minimis; requiring dust clearance tes ting when property has twic e failed cleaning verification; requiring third

party dust clearance testing ; prohibiting r andom dust clearance sampling; requiring that building owners and tenants be provided with clearance results; requiring occupants to stay out of work area and prohibiting re

- occupancy until clearance passes; requiring exterior containment, including vertical containment; providing instructional video on how to construct vertical containment properly; requiring lead safe demolition practices; and requiring a minimum penalty to incentiv ize compliance.

• On e commenter s upports the use of lead safe work practices to reduce the creation of hazards and states that new technology, such as HEPA vac u ums, and the new work practices required under the 2008 RRP Rule are much more effective at reducing dust than those of the past

.

• One commenter states that P&CBs are not always closed to non

- renovation workers or visitors during construction

. I n some instances the work area is only delineated w ith scaffolding or signs that indicate a renovation is underway ; access is not restricted . The commenter also states that although commercial building tenants are often given notice of a renovation ( pursuant to lease agreement s )

, visiting members of the public are generally not given such notice. Despite this, th e comment er notes that interior renovations might occur in vacant spaces not currently used by building tenants and visitors.

• In response to both the 2010 ANPR and the December 31, 2012

, Feder al Register Notice

, several commenters provide d personal accounts or other anecdotal evidence of work practices

. For example, s everal commenters highlighted potential gaps in existing mitigation measures and regulatory programs. Some c ommenter indicate d that common renovation techniques for P&CBs may leave behind lead dust or that typical clean

- upU.S. Environmental Protection Agency May 2013

12 after P&CB renovations consisted of only sweeping with a broom. One commenter also noted that survey techniques do not always include lead dust wipe samples.

• H owever, o ne commenter noted that, in hospitals, renovation firms are generally required to separate renovation work areas due to infectious control issues. In those cases, an environmental contractor is brought in to establish containment and provide HEPA air filtration devices.

• Several commenters on the 2010 ANPR stated that P&CB owners conduct testing for lead

- based paint and other hazards before soliciting bids for renovations, although one thought that this was more common before major renovations.

(5) Dust generation and transport from exterior and interior renovations of public and commercial buildings.

Information related to dust generation and transport from renovations of P&CBs is likely to inform the EPA’s determination on lead

- based paint hazards : (1) whether specific renovation activities generate dust, (2) the extent of dust created by specific renovation activities, (3) whether and where a hazard exist s , and (4 ) the analyses of whether work practice or other regulatory requirements would reduce or eliminate hazards. In addition to information and data on dust generated and transport ed from renovations of P&CBs, the EPA is interested in any relevant information, data, or studies that inf orm whether renovations of P&CBs, particularly exterior renovations, can create hazards inside nearby residential housing, COFs, or other buildings

. The EPA is also interested in information, data, or studies regarding lead dust contamination of exterior h ard surfaces where children could be exposed, including

, but no t limited to porches, stoops, stairs, driveways, paved play areas, and play structures.

The EPA continues to accept additional data and information on dust generation and transport from reno vations of P&CBs, but has gathered or received the following information:

• In 2007, the EPA issued results from a field study entitled “Characterization of Dust Lead Levels after Renovation, Repair, and Painting Activities” (Dust Study). 36 This study was

c onducted to characterize dust

- lead levels resulting from renovations by comparing environmental lead levels at appropriate stag es after various types of interior and exterior renovation, repair, and painting activities at both target housing units and child

- occupied facilities. Specifically, the Dust Study evaluated the dust

- lead and soil

- lead levels generated by the following act ivities at an unoccupied school building (one type of public or commercial building) and/or unoccupied target housing:

o Making cut

- outs in the walls.

o Replacing a window from the inside.

o Removing paint with high and low temperature heat guns.

o Removing paint by dry scraping.

o Removing paint with a power planer.

o Removing kitchen cabinets.

• The Dust Study supported the EPA’s finding in the 2008 RRP Rule that typical renovation and remodeling activities that disturb lead

- based paint create exceedances of the residential hazard standards

.U.S. Environmental Protection Agency May 2013

13 • Data from the D ust S tudy indicate that lead

- based paint hazards may be created inside contiguous, adjacent, and nearby residential and COF buildings as a result of exterior renovations on P&CBs . Dust generated during exterior renovations has the potential to create a hazardous level of interior floor lead dust through various pathways such as make

- up air for HVAC systems, air exchange between the inside of the building and the exterior environment, open doors and windows

, and d ust tracked into the residences and COFs.

• Another study used by the EPA to support the 2008 RRP Rule was the Environmental Field Sampling Study (EFSS). 37 This study, Phase I of the study conducted under TSCA section 402(c)( 2), evaluated the amount of leaded dust generated by the activities below. Note that t he dust

- lead levels generated by abrasive sanding were evaluated through a literature survey, the results of which included both residential buildings and P&CBs. The rest of the evaluated activities were performed in residential buildings as part of the study.

o Paint removal by abrasive sanding.

o Removal of large structures, including demolition of interior plaster walls.

o Window replacement.

o Carpet removal.

o HVAC repair or replacement, including duct work.

o Repairs resulting in isolated small surface disruptions, including drilling and sawing into wood and plaster.

• Phase II of the EFSS study conducted under TSCA section 402(c)(2), the Worker Characterization and Blood Lead Study

, 38 is also relevant to the assessment of lead

- based paint hazards associated with renovations of public and commercial buildings. This study involved collecting data on blood lead and renovation and remodeling activities from workers. Half of the reno vations studied occurred in commercial buildings and half occurred in residential housing. This study provides evidence of a relationship between commercial building renovation activities and worker blood lead levels. Phase IV of the study, the Worker Char acterization and Blood

- Lead Study of R&R (Renovation and Remodeling) Workers Who Specialize in Renovations of Old or Historic Homes, was similar to Phase II, but focused on individuals who worked primarily in old historic buildings.

• In response to the 2010 ANPR, the National Institute of Occupational Safety and Health (NIOSH) submitted several studies that assessed worker exposure and transport of lead dust from renovation activities

. 39 One study assessed lead

- based paint exposures of workers during exterior renovation work on several building types, including a multipurpose building that had been used as a daycare center.

The EPA encourages submission of additional data and informatio n on dust generation and transport from exterior and interior renovations of public and commercial buildings. Such information may be available from the following sources:

• Air, dust, or soil sampling data from specific P&CB renovation projects that may be held by contractors, building owners, environmental sampling firms, and/or state and local enforcement authorities.U.S. Environmental Protection Agency May 2013

14 • Renovation s tudies conducted by private or public institutions or entities, not publicly available

In response to the December 31, 2012 Federal Register Notice, the EPA received the following comments related to this discussion area:

• S ome commenters cautioned against relying on studies used to support the 2008 RRP Rule, al though they acknowledged that some P&CBs were assessed in these studies. Other commenters suggested that dust generation in P&CBs is different from dust generation in residential buildings.

• Some commenters requested that the EPA perfor m new studies of current renovation and remodelin g projects in P&CBs

. Other commenters suggested that the EPA use research done by NCHH on dust generation from demolition.

• Two commenters mentioned that renovation workers can put their children and families

a t risk by bringing lead

- dust home on their person and clothing resulting in elevated blood lead levels and that lead

- based paint hazards can be created in all building types.

• One com menter expressed concern that exterior renovations can create hazards at nearby residences in mixed use neighborhoods and that wo rk practice requirements should prevent dust migration and worker tracking of dust to these public spaces. The commenter mentioned that the HUD G uidelines for the Evaluation and Control of Lead

Based Paint Hazards in Housing 40 recom mend cleaning of these adjacent surfaces and also recommends protection of adjacent properties when setting up the work area and that the work practices from the 2008 RRP R ule as a starting place for this rule.

In addition, in response to the 2010 ANPR, one commenter suggested that bridge renovation studies were relevant to the question of the transport of lead from renovations. This commenter suggested that these studies and anecdotal evidence from the commenter’s members demonstrate that full negative

- air containment is needed to prevent lead contamination from abrasive blasting.

Next Steps

On June 26, 2013, the EPA will hold a public meeting to provide an opportunity for stakeholders and other interested parties to provide the EPA with additional information that could help inform the EPA’s regulatory determinations. The EPA invites any and all interested parties to
par ticipate in the public meeting. A dditionally

, the EPA has reopen ed the comment period from May 13 , 2013 to July 26, 2013, so that r elevant data and information can be submitted electronically to the d ocket for this action

, available at www.regulations.gov , docket ID # EPA

– HQ

– OPPT

– 2010

– 0173.U.S. Environmental Protection Agency May 2013

15 REFERENCE S

1 Richard L. Canfield et al., Intellectual Impairment in Children with Blood Lead Concentrations below 10 ug per Deciliter , 345 New Eng. J. Med. 1517, 1521 (2003)); 1995 NIOSH report on construction industry workers, specifically during maintenance or repainting of steel structures coated with LBP, which have been among those workers with the highest BLL; Sussell, A

. Protecti ng Workers Exposed to Lead

- Based Paint Hazard

– A Report to Congress. U.S. Dept. of Health and Human Services, Public Health Service , CDC, NIOSH, January 1997.
2 15 U.S.C. § 2683
3 16 C

. F

. R

. § 1303.1, 47 Fed. Reg. 44193 (September 1, 1977).
4 16 C

. F

. R

. § 1303.1, 47 Fed. Reg. 44193 (September 1, 1977).
5 42 Fed . Reg. 44193, 44196 (September 1, 1977).
6 Id.
7 Id.
8 16 C

. F

. R

. § 1303.3(a).
9 U.S. G eological S urvey, Total Materials Consumption

- An Estimation Methodology and Example Using Lead

—

A Materials Flow Analysis , April 30, 1999, available at http://pubs.usgs.gov/circ/1999/c1183/c1183.pdf
10 Id.
11 National Paint and Coatings Association, U.S. Paint Industry Data Base, 113 (1992).
12 U.S. Department of Commerce

, Foreign Trade Division, Historical Summary 1989

- 1993 for Chrome Yellow (3206200010), U.S. Imports History: International Harmonized System Commodity Classification by Country by Customs District (June 1998); see also National Paint and Coatings Association, U.S. Paint Industry Data Base, 11 1 (1992)
13 U.S. Department of Commerce, Foreign Trade Division, Historical Summary 1999

- 2003 for Chrome Yellow (3206200010), U.S. Imports History: International Harmonized System Commodity Classification by Country by Customs District (June 1998)

. 14 Nation al Paint and Coatings Association, U.S. Paint Industry Data Base at 113

. 15 U.S. Department of Commerce, Foreign Trade Division, Historical Summary 1989

- 1993 for Molybdenum Orange (3206200020), U.S. Imports History: International Harmonized System Commodity Classification by Country by Customs District (June 1998); see also National Paint and Coatings Association, U.S. Paint Industry Data Base, 111 (1992)

. 16 U.S. Department of Commerce, Foreign Trade Division, Historical Summary 1997

- 2001 for Molybdenum Ora nge (3206200020), U.S. Imports History: International Harmonized System Commodity Classification by Country by Customs District (June 2002).
17 U.S. Department of Commerce, Foreign Trade Division, Historical Summary 1999

- 2003 for Molybdenum Orange (32062000 20), U.S. Imports History: International Harmonized System Commodity Classification by Country by Customs District (June 2004).
18 SRI International, The U.S. Paint Industry: Technology Trends, Markets, Raw Materials , 126. Prepared for the National Paint an d Coatings Association (1984).
19 SRI International, The U.S. Paint Industry: Technology Trends, Markets, Raw Materials , 128. Prepared for the National Paint and Coatings Association (1984).
20 Id.
21 U.S. Department of Commerce, Foreign Trade Division, Hi storical Summary 1989

- 1993 for Lead Carbonate (2836700000), U.S. Imports History: International Harmonized System Commodity Classification by Country by Customs District (June 1998 ).
22 Id.
23 SRI International, The U.S. Paint Industry: Technology Trends, Markets, Raw Materials , 168. Prepared for the National Paint and Coatings Association (1984).
24 Id. at 169.
25 Id. at 1 70.
26 National Paint and Coatings Association, U.S. Paint Industry Data Base at 113.
27 SRI International, The U.S. Paint Industry: Technology Trends, Markets, Raw Materials , 126. Prepared for the National Paint and Coatings Association (1984).
28 National Paint and Coatings Association, U.S. Paint Industry Data Base at 137

- 1 38.
29 16 C

. F

. R

. § 1303.1, 47 Fed. Reg. 44193 (September 1, 1977).U.S. Environmental Protection Agency May 2013

16 30 SRI International, The U.S. Paint Industry: Technology Trends, Markets, Raw Materials , 170. Prepared for the N ational Paint and Coatings Association (1984).
31 29 C.F.R. § 1926.62.
32 42 U.S.C. § 6901, et . seq. 33 Navy Lead Hazard Reduction Steering Committee, NAFAC TSCA Workgroup, Naval Facilities Engineering Command. Facilities Management Guide for Asbestos and Lead . 2004.
34 Id. 35 S.A. Grinshpun, et al., Efficiency of Final Cleaning for Lead

- Based Paint Abatement in Indoor Environments , 17 Applied Occupational Envt. Hygiene 222 (2002).
36 See Docket ID # EPA

– HQ

– OPPT

– 2010

– 0173.
37 Id

. 38 I d.
39 Id.
40 U.S. Department of Housing and Urban Development, Guidelines for the Evaluation and Control of Lead

- Based Paint Hazards in Housing (2012).