EPA Lead Paint Methodology Questioned By Commercial Properties Coalition

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Does the EPA’s own framework for determining potential lead paint hazards in commercial buildings skip Congressional directives?

The Real Estate Roundtable and real estate trade groups in the Commercial Properties Coalition last week filed the latest in a series of comment letters relating to efforts by the U.S. Environmental Protection Agency (EPA) to regulate purported lead paint hazards that may arise from renovation and remodeling activities in public and commercial buildings.

The real estate coalition also raised questions about the methodology behind the EPA framework, calling it a “novel approach that has not been independently peer reviewed, validated, or even explained.” Additionally, the coalition asserted, the framework “does not identify what underlying exposure data would be used in running the proposed models, and without reliable data, the models cannot be expected to produce useful results.”The June 30 comment letter focuses on EPA’s proposed “framework” for determining whether renovation and remodeling activities in public and commercial buildings — such as new tenant build-outs — actually cause lead-based paint hazards. On the basis of such a determination, EPA could then move forward with proposed regulations affecting commercial real estate.

Although EPA’s framework correctly acknowledges that public and commercial (P&C) buildings “vary greatly” (with respect to sizes, shapes, configurations, uses, occupancies and cleaning frequencies) — and that a “one-size-fits-all” approach is not appropriate for renovation, repair and painting (RRP) activities in such buildings — it appears to circumvent a series of steps set forth by Congress in Subchapter IV of the Toxic Substances Control Act (TSCA) in developing new regulations.

“. . . EPA must not skip over key steps in the Subchapter IV process in issuing final RRP rules for P&C buildings,” the coalition stated in its letter. “At a minimum, the failure. . . to first identify LBP [lead-based paint] hazards in P&C buildings — by rule as the statute requires under section 403 — would undermine the soundness of any ultimate RRP regulations for those structures …. From the Coalition’s vantage point, the Framework at issue appears to collapse and avoid discrete steps in the subchapter IV chronology” for rulemaking.

The coalition emphasized that its members “have a strong interest in constructing, owning, and managing healthy, safe, and desirable commercial buildings,” noting that their “reputations depend on it, and they must be vigilant in responding to ever increasing demands of tenants and investors seeking socially and environmentally responsible leasing and investment opportunities.”

The June 30 comments on EPA’s proposed framework follows on a June 19 letter raising concerns that the agency’s plans this summer to convene a federally-mandated small business impact review panel are premature. “With only generalized statements and hypotheticals of possible means by which EPA may determine the presence of lead-based paint hazards in P&C buildings … the Coalition respectfully believes that the Agency is not ready to convene” a panel to assess alternate forms of RRP regulations as the Small Business Regulatory Enforcement Fairness Act (SBREFA) requires, according to the June 18 letter.In the coalition’s view, “EPA should proceed by identifying whether a P&C RRP hazard exists, subjecting its proposed Framework methodology to peer review, satisfying other prerequisites established in TSCA Subchapter IV, and only after completion of these essential steps move to develop proposed regulations to address any P&C RRP hazards that have been found to exist.”

Since EPA enacted RRP rules for pre-1978 residential buildings in 2008, the agency has considered whether to adopt similar rules for P&C buildings for a number of years (particularly as a result of litigation filed by environmental organizations). Through the Coalition, The Roundtable has supplied comments and input to EPA throughout the rulemaking process. [See RW – June 28, 2013 and RW – Dec. 10, 2010]

What Is The Real Estate Roundtable?

The Real Estate Roundtable brings together leaders of the nation’s top publicly-held and privately-owned real estate 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.

In addition to The Roundtable, the Commercial Properties Coalition presently includes: the American Hotel & Lodging Association (AH&LA) ; Building Owners and Managers Association (BOMA) International; International Council of Shopping Centers (ICSC); National Multifamily Housing Council (NMHC); NAIOP, the Commercial Real Estate Development Association; National Association of Home Builders (NAHB); National Association of Real Estate Investment Trusts (NAREIT); and the National Association of REALTORS®.