By Philip L. Comella

In a just-issued Federal Register notice, EPA states that it is making available a proposed framework for identifying and evaluating lead-based paint hazards from renovation, repair and painting activities in public and commercial buildings.

This proposed framework, in contrast to the approach the agency took with regard to target housing (i.e., housing constructed before 1978) and child-occupied facilities (i.e., generally a building visited regularly by children under 6), will rely upon a scenario-specific approach for determining when renovations in particular types of public and commercial buildings create adverse health impacts. For target housing and child-occupied facilities, the agency concluded that all renovation activities that disturb lead-based paint create a lead-based paint hazard.

In a document referenced in the May 30, 2014 Federal Register Notice, entitled, “Framework for Identifying and Evaluating Lead-Based Paint Hazards from Renovation, Repair, and Painting Activities in Public and Commercial Buildings,” EPA outlines the methodology for developing the scenarios and explains why it is taking a different approach for public and commercial buildings (P&CBs). In sum, the agency states that coming up with a “one-size-fits-all” approach for P&CBs is likely inappropriate given the wide variety of different structures, room sizes, and uses. Moreover, both children and adults will likely spend less time in many P&CBs, and buildings where young children spend a lot of time are already regulated. In developing the scenarios, EPA will “assess elevations in lead exposure resulting from a broad range of scenarios, considering variation in type of renovations activities building types, sizes and configurations, use and occupancy pattern, cleaning frequencies, etc., which are designed to be reflective of factual P&CB settings.” Using a probabilistic approach, EPA would then promulgate regulations that would apply only to the modeled scenarios showing adverse health risks.

EPA’s current focus on lead-based paint hazards in public and commercial buildings grows out of settlement it entered into in 2009 of a petition for review brought by the Sierra Club and others in regard to EPA’s April 22, 2008 final rule entitled, “Lead; Renovation, Repair, and Painting Program; Final Rule.” EPA issued this rule under Section 402(c)(3) of the Toxic Substances Control Act, which required EPA, by October 28, 1996, to issue regulations that apply to “renovation or remodeling activities in target housing, public buildings constructed before 1978, and commercial buildings that create lead-based paint hazards.”

The 2008 rule, however, covered target housing and child-occupied facilities, but not public and commercial buildings. This omission led to the Sierra Club petition and the settlement. In a September 2012 amendment to the settlement, EPA agreed that by July 1, 2015, it would either notify petitioners that work practices related to public and commercial buildings do not create a lead-based hazard, or issue a proposed rule. If it does issue a proposed rule, then EPA must issue a final rule within 18 months after July 1, 2015. Thus, EPA’s May 30, 2014 notice shows the agency is considering regulating public and commercial buildings differently than target housing and child-occupied facilities.

Although the “scenario-specific” approach makes sense, the devil will be in the details. Considering the number of variables in developing the scenarios and the inevitable difficulty of applying them to real-world conditions, it is likely the agency is heading down another tortured path to regulating this potential hazard posed by renovation activities in public and commercial buildings.

Comments on this are due on June 30, 2014.