Senators Say EPA Continues to Botch Lead-Based Paint Rule

Washington, D.C. - U.S. Senator James Inhofe (R-Okla.), Ranking Member of the Senate Committee on Environment and Public Works, today called for EPW Committee oversight hearings on EPA's Lead-Based Paint rule. On Friday, April 15, 2011, Senator Inhofe joined several Senators who sent two letters to EPA Administrator Lisa Jackson identifying additional problems surrounding EPA's implementation of the rule. The first letter questions proposed new amendments to the lead rule that would require "clearance testing" to prove the presence or absence of lead following a project's completion. This would impose significant confusion and complication for renovators and remodelers who have already completed their lead-based paint training and will also result in additional costs for homeowners and renovators to pay for the clearance testing. The second letter criticizes EPA's rulemaking for commercial buildings and public buildings--specifically noting that the agency lacks sufficient data on which to promulgate such a rule. "EPA's latest proposal governing how renovators and remodelers handle lead-based paint is impractical, confusing, costly, and not based on the best available science," Senator Inhofe said. "Once again, EPA is fumbling implementation of this rule, to the point that it will cost jobs and fall far short of fully realizing the rule's laudable public health goals. "When EPA mismanaged implementation of the first phase of this rule, more than 60 Senators--Democrats and Republicans--voted to hold EPA accountable to fix its mistakes. The agency, unfortunately, appears to be heading down a similar path. I hope in due course the agency will heed the Senate's concern and ensure the rule is carried out efficiently and effectively to protect public health. "I also think EPW Committee Chairman Boxer should hold an oversight hearing on EPA's flawed implementation, so we can identify the agency's errors, correct them immediately, and realize the full public health benefits of this rule."

Full Text of Letter on Clearance Testing

April 15, 2011 Lisa Jackson Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460 Dear Administrator Jackson: We are writing to express concerns about additional regulatory actions that the Environmental Protection Agency is planning to take regarding the "Lead: Renovation, Repair and Painting Rule" (LRRP). We first contacted you with our concerns about the implementation of this rule in May 2009. Though implementation was difficult, the rule is now fully in place and, thanks to the June 2010 enforcement guidance, EPA has trained significantly more contractors than it initially estimated it would need for compliance. However, we now understand that, as a result of a legal settlement, EPA has already proposed new amendments to the LRRP rule. These amendments would require renovators to conduct "clearance testing" following a project's completion to prove the presence or absence of lead in homes. We are concerned about this amendment for a number of reasons. First, poor planning for the initial LRRP resulted in the rule taking effect without having enough opportunities for renovators to become certified, massive confusion among homeowners about the necessity of paying extra for the LRRP compliance measures, and an inadequate amount of lead test kits. Additionally, EPA significantly underestimated the cost of compliance for small businesses and individuals. Dramatic changes to the program, such as the requirement for clearance testing, will likely impose significant confusion and complication for renovators and remodelers who have already completed their LRRP training and will also result in additional costs for homeowners and renovators to pay for the clearance testing. We have heard from a number of our constituents that the higher costs from current LRRP renovators have pushed homeowners to either hire uncertified individuals or to perform renovation work themselves. This is absolutely counter to the intent of the rule, which is to protect people from the potential dangers of lead dust. Second, this new requirement is a clear violation of congressional intent under the Toxic Substances Control Act (TSCA). Congress made clear that renovation activity and abatement activity are separate. Renovation work is governed by section 402 of TSCA and abatement work is under section 405. Additionally, EPA's own definitions make it clear that abatement and remodeling are different activities. The regulatory definition of abatement not only excludes remodeling activities, but defines abatement as the identification and permanent elimination of lead hazards. Remodeling activities, on the other hand, are not required to eliminate lead hazards but instead to repair, restore, or remodel the existing structure. By requiring remodelers to comply with the same lead hazards as the abatement firms will blur the lines between renovators and abatement firms, potentially harming both. Finally, the identification of a lead hazard in rooms where the renovations have not occurred by remodelers will make renovators liable for existing lead in the home. Many of the homes where this work will be done may already have lead levels exceeding EPA's federal hazard level prior to renovation work. Regardless of whether the lead levels were cleared or not, renovators must leave documentation that confirms the presence of lead in the home that must be disclosed to future buyers or tenants. This amendment raises some serious questions for us:

• Previous EPA studies have found that LRRP work practices and training requirements provide protection of public health. Has EPA received additional data regarding LRRP work practices and their health protections? We would be interested to review any new health or exposure data justifying an expansion of regulation to cover renovation work.
• Additionally, please provide us with the authority EPA has under TSCA to require remodelers to use clearance testing or dust wipe testing.
• Finally, it appears that EPA's initial cost estimate included a lower number of renovations requiring lead safe work practices due to approval of "next generation" testing kits. Unfortunately, none of those kits were approved. With the test's false positives, will EPA be revising its economic analysis of this rule, given the unavailability of new testing kits, and the higher number of jobs that require lead safe work practices?

Protecting pregnant women and children from lead exposure is important to all of us and we continue to support the intent of the LRRP rule. However, these amendments could have the unintended consequence of driving people away from using LRRP certified renovators and missing the clear benefits that come from employing LRRP renovators. Thank you for your consideration of this important matter. Sincerely, James Inhofe David Vitter Tom Coburn Lamar Alexander Chuck Grassley Roy Blunt John Hoeven John Barrasso Mike Enzi Susan Collins Mike Johanns Olympia Snowe

Full Text of Letter on Commercial and Public Buildings

April 15, 2011 Lisa Jackson Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460 Dear Administrator Jackson: We are writing to express our concerns about additional regulatory actions that the Environmental Protection Agency is planning to take regarding the "Lead: Renovation, Repair and Painting Rule" (LRRP). Following the finalization of EPA's LRRP Rule, several lawsuits were filed and on August 24, 2009, EPA entered into a settlement agreement with some of the petitioners. In the settlement agreement, EPA agreed to commence rulemaking to address renovations in public and commercial buildings to the extent those renovations create lead-based paint hazards. As a result of this agreement, by December 15, 2011, EPA must issue a proposal to regulate renovations on the exteriors of commercial buildings and public buildings built before 1978. EPA must take final action on that proposal and propose regulations for the interior of buildings by July 15, 2013. The Residential Lead-Based Paint Hazard Reduction Act of 1992 gave EPA authority in the Toxic Substances Control Act (TSCA) to "apply the regulations to renovation or remodeling activities in target housing, public buildings constructed before 1978, and commercial buildings that create lead-based paint hazards." We are concerned that EPA is assuming that the majority of commercial buildings create a lead hazard without having the data to support it. In a 2010 report, EPA recognized the "scarcity of data related to dust exposures in public and commercial buildings and other non-residential settings," and that an extensive literature search "revealed relatively little information concerning typical levels of floor and window sill dust lead in public and commercial buildings." Yet EPA is moving forward at a very rapid pace to issue proposed regulations. Additionally, under section 402(c)(2), EPA has an obligation to study "the extent to which persons engaged in various types of renovation and remodeling activities in target housing, public buildings constructed before 1978, and commercial buildings are exposed to lead in the conduct of such activities or disturb lead and create a lead-based paint hazard on a regular or occasional basis." Section 402(c)(3) says that EPA "shall utilize the results of the study under paragraph (2)" in determining what to regulate. Relying on the dust studies done in residential settings and schools is not sufficient for promulgating rules on all existing commercial buildings. If EPA does not currently have sufficient data on the lead hazards in commercial buildings, it must study those lead hazards and gather that data prior to issuing regulations. We are also concerned that the EPA seems to believe it can easily apply what it has done under residential LRRP to commercial buildings. Whereas a home owner or child care facility may only renovate a bathroom or kitchen once every 10 years, some commercial buildings are renovated continuously. Tenants move in and out of office buildings, requiring outfitting to meet their individual needs, mall shops move and change frequently, and many commercial and public buildings undergo upgrades to make them more energy efficient. Prior to issuing regulations, EPA must have a robust understanding of what renovation activities in public and commercial buildings entail, the frequency of these activities, and the relationship of these activities to ambient lead in the building. Without understanding what activities are likely to affect ambient lead levels in the building, EPA cannot write regulations and guidance that will actually create meaningful improvements to public health. At a time when the nation's building industry has been in a severe recession and faces an unemployment rate of nearly 21 percent, we need to make sure that the rules EPA is promulgating will not present additional barriers to economic recovery. We appreciate your attention to this letter. Sincerely, James Inhofe David Vitter Tom Coburn Chuck Grassley Roy Blunt John Hoeven John Barrasso Mike Enzi Susan Collins Olympia Snowe