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Comments of the National Apartment Association and

The Apartment Association of Pennsylvania

At the Environmental Protection Agency Public Meeting

June 26, 2013

Lead: RRP Program for Public and Commercial Buildings

EPA-HQ-OPPT-2010-0173

Thank you for this time to discuss the concerns of the members of the National 

Apartment Association regarding EPA’s proposed rulemaking for renovation, repair and 

painting activities (RRP) on and in public and commercial buildings. My name is 

Christine Young-Gertz. I am the Government Affairs Director for the Apartment 

Association of Pennsylvania, which is an affiliate of the National Apartment Association 

(NAA).

NAA is a federation of 170 state and local apartment associations comprised of 

more than 60,000 members, representing more than 6.6 million apartment homes 

throughout the United States and Canada. Our members engage in all aspects of the 

apartment industry, including ownership, development, management and finance.

NAA members are apartment industry leaders who provide the quality rental 

housing that is vital to every community. We stress professionalism and industry 

advancement through education and compliance with all pertinent rules and regulations. 

NAA members know delivering a good product -quality rental housing- is possible only 

by running their businesses according to the highest operational and service standards. 

That includes providing safe housing and a hazard free environment for their residents.

Lead exposure to children has been dramatically reduced through a combination 

of responsible government intervention and industry cooperation. We’ve eliminated lead 

in gasoline, plumbing, food cans, children’s toys, household paint, and from use in many 

manufacturing processes. 

NAA’s longstanding commitment to educating our members about lead paint 

regulations pre-dates the RRP rules that took effect in 2010. Several years ago we 

developed extensive training for workers in lead safe practices, and education to meet 

EPA certification requirements. We are proud of our enduring partnership with EPA and 

will continue our efforts to raise awareness about lead paint hazards. Going forward, 

NAA will continue to be a part of the solution. 
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Many NAA members throughout the country have a significant number of mixeduse properties, with both residential and commercial space. Therefore the EPA proposal 

to address renovations in public and commercial buildings by expanding the RRP rules 

directly affects our members. 

EPA is required to first determine whether RRP activities in public and commercial 

buildings create lead based paint hazards. According to their settlement agreement in 

several lawsuits, the EPA must either sign a proposed rule covering RRP activities in 

public and commercial buildings by July 1, 2015, or determine that those activities do not 

create lead based paint hazards. 77 Fed. Reg. 76997 (December 31, 2012). Today most 

reasonable property managers would certainly conclude the latter to be the case, based on 

their experiences with the prevalent industry practices for renovation repair and painting 

in commercial buildings. OSHA regulations are already in place to guide renovation 

activities in these buildings. And a study of RRP activities, such as contemplated by the 

EPA’s mandate from Congress, in my opinion, will most likely support the fact that 

property owners and managers follow the OSHA rules. 

But my opinion aside, the EPA must start from the beginning, and devote the 

necessary time and resources to conduct such a study. I appreciate the EPA’s efforts to 

gather information from pertinent stakeholders, and this important information will surely 

point them in the right direction. But a well crafted empirical study to investigate the 

current presence of lead paint in commercial buildings, the nature of the practices used to 

renovate and repair commercial buildings, and the vast, diverse uses and occupancies of 

the country’s commercial properties is the kind of fact based objective examination 

congress contemplated and mandated as the starting point in any effort to develop 

regulations. 

Commercial is not the same as residential. That seems rather obvious when 

simply stated. But it is a crucial fact. Any regulation contemplated for commercial 

structures must be fine-tuned for commercial structures. Notions about residential

settings simply do not apply to commercial. Their size, use, occupancies and renovation 

work practices are vastly different. EPA must recognize those differences and collect 

pertinent data before moving forward with RRP rules for commercial buildings. 
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Commercial in itself is not a generic term. It includes box stores, school buildings, 

heath care facilities, shopping malls, meeting halls, convention centers, churches and 

other religious buildings, industrial buildings, warehouses, the list is nearly endless. And 

with that nearly endless variety of building is a nearly endless variety and number of 

renovation, repair and painting activities that most assuredly occur routinely and 

frequently. According to the Commercial Building Energy Consumption Summary from 

the Energy Information Administration, there are nearly 4.9 million commercial buildings 

in the United States, comprising more almost 72 billion square feet of floorspace. Any 

new RRP rules for commercial buildings must account for all of it. One size of 

regulations will simply not fit all. And we must remember child occupied facilities are 

already covered under current residential rules. So commercial buildings that house child 

care facilities, for example, churches, schools, office buildings, recreation centers and the 

like are already covered. 

Admittedly, EPA has a herculean task before them, but you must tailor future 

proposals for RRP regulations in commercial buildings to the facts. 

The EPA must start with reliable and valid information about commercial 

buildings and limit any new regulations so they do not overlap existing rules and 

industry practices. The EPA must obtain reliable and valid facts about renovation and 

repair activities in public and commercial buildings. EPA was directed by Congress to 

study this issue, and must not simply default to studies that were performed in older 

residential housing that have no bearing on public or commercial building settings. 

Before proceeding with regulations, the EPA must first see if there is a relationship 

between RRP activities in public and commercial buildings and the creation of lead 

hazards. 

There are important differences in maintenance activities between single family 

structures and public and commercial buildings. There are existing regulatory programs 

at the local, state and federal levels that guide renovation work to protect the general 

environment and worker health. 

EPA must also account for the huge diversity among the building types that 

would be covered by this potential proposed rule. EPA must give particularized 

consideration to each type of building in making its assessment. 
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EPA has indicated that it may use the definition of commercial building that is 

contained in the asbestos rule, which includes residential buildings with 10 or more units.

 Over fourteen million apartments, or roughly 73% of all apartments in the US are 

located in buildings that contain 10 or more apartments. 53% of those apartments were 

built before 1980 and are therefore already subject to highly detailed regulations 

regarding the potential presence of lead based paint. Over 6.5 million of the apartments 

in 10+ unit buildings were constructed after 1980. For EPA to consider including those

six and a half million post 1978 constructed apartments in a new lead based paint 

regulatory program without first verifying information regarding the lead status of those 

properties strains credulity. 

Including post 1978 apartment buildings in RRP rules intended to prevent 

exposure to lead hazards with no basis for doing so is at odds with HUD’s survey data 

that has identified a steep decline in the presence of lead based paint in housing built after 

1960. HUD relied on this date as a cut off mark for establishing a tiered approach to 

addressing lead in federally-assisted housing. Moreover, 1978 is the year that the 

Consumer Product Safety Commission banned the sale of leaded paint for use in 

residential structures. It makes no sense to include post 1978 commercial buildings in

expanded RRP rules without clear objective evidence that a lead hazard exists in these 

buildings. 

 Any new rule predicated along these lines will have a significant negative impact 

on the cost of rental housing and exacerbate the current shortage of safe, affordable and 

accessible housing without likely addressing lead from other sources (beyond paint) that 

are present in the general environment. Any new rule must therefore be as narrowly 

crafted as possible, to address any problem uncovered by proper inquiry without 

overreaching and causing more harm than good. 

The use of lead-based paint has been dramatically limited since 1978, and EPA must 

consider industry practices in commercial buildings that have further reduced the 

chances of exposure to lead hazards. EPA has acknowledged the prevalence of leadbased paint in commercial and public buildings is an important factor in determining 

whether RRP activities create a hazard. 75 Fed. Reg. 24858 (May 6, 2010). EPA must 
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also consider how likely it is that today’s commercial buildings have lead-based paint 

hazards. Office and retail settings are renovated very frequently and are therefore perhaps

less likely to have lead-based paint, even if the building was built before 1978. Part of the 

work ahead is to gather information on the likelihood of exposure to lead paint or the 

presence of lead paint in pre-1978 buildings that have undergone repeated renovation 

through the years. Commercial tenants commonly sign leases with “build out” provisions. 

That is, the tenant is responsible for renovation costs. Retail establishments especially are 

known to renovate their leased spaces at the start of the tenancy and frequently 

throughout the tenancy. It is an established practice geared to business growth. The need 

to collect data on the frequency of renovations conducted in commercial buildings since 

1978 has not been seen as necessary until now. EPA must objectively collect data on this 

important factor of commercial rental practices. Reliable data about the assuredly huge 

number of renovation, repair and painting activities that occur daily in commercial 

buildings is sorely needed. 

Along with the frequency of renovations, EPA must gather reliable data on the 

practices in commercial buildings when renovations, repairs and painting are performed. 

For example, businesses typically remodel or renovate using practices that include 

cordoning off the area to the public – because of liability, OSHA requirements, local 

ordinances, or other considerations. The workers involved in the project are usually the

only ones present. RRP rules to reduce lead hazard exposure, if needed at all, would 

clearly be different than those needed for projects undertaken in occupied residential 

buildings. 

Additional costs for RRP rules have a direct and significant impact on any 

building’s net operating income (NOI). A property’s operating expenses are subtracted 

from the gross income to arrive at the NOI – the measure of its ability to produce income. 

Expenses include management, payroll, maintenance and janitorial, supplies, legal, 

accounting, insurance, supplies, utilities, and all other expenses. It is a gauge of a 

businesses performance and has a direct bearing on the property’s value, which in turn 

has a bearing on the owner’s ability to raise capital. Improvements, expansion, the very 

health of the business are therefore tied to its net operating income. The regulatory 
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requirements the property faces can have a great effect on its NOI. Costs for complying 

for RRP as well as other regulations quickly add up. The cost to test a property for the 

presence of lead-based paint is considerable, to say the least. A test for a typical 

apartment property, both interior and exterior, is about 20,000 dollars. EPA’s study of 

the need for additional RRP rules for commercial buildings must include a hard look at 

the costs it will mean to commercial building enterprises. 

Currently anecdotal estimates of the added costs for RRP compliance when 

performing renovations or repairs in multi-family residential buildings, including work 

practices, notifications and record keeping requirements, and worker certification, can be 

as much as 40%. RRP activities include a massive variety of undertakings, from a 

minimal re-painting to more significant building changes. Staff training, certification, 

record keeping and a host of administrative expenses must be factored in for every kind 

or RRP activity, no matter how big or small the job. A study of the costs must therefore 

be all encompassing. Before any additional RRP rules are contemplated, EPA must 

conduct a reliable study among the various commercial building owners and operators to 

verify the costs associated with compliance.

Even if RRP costs are borne by the commercial tenant, and not the owner, the 

costs add to the burdens of the one who performs the RRP activity. That will in turn 

influence how much rent the tenant can pay, or the type of tenant the owner can attract. 

The health of the commercial property is in any case directly affected. These costs must 

be considered in tandem with any need further study might establish for RRP rules in 

commercial buildings. The costs must be weighed against the benefits.

In conclusion: In contemplating applying RRP rules to commercial and public buildings, 

EPA is so far simply guessing there is a problem, and they’re guessing at a possible 

solution to fit the would-be problem. They must first do their homework, and then tightly 

tailor their regulations to fit the actual problem, if one exists. We look forward to 

continued discussions to clarify the problems and fine tune the solutions. Thank you 

again for your time.