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Lead

Buildings and Structures Public Meeting Summary

SUMMARY OF PUBLIC COMMENTS

IN PUBLIC BUILDINGS, COMMERCIAL BUILDINGS AND STEEL STRUCTURES I. PURPOSE OF THE MEETING

The purpose of this public meeting was to afford stakeholders an opportunity to comment in response to the Federal Register announcement on August 22, 1997, page 44621 (40 CFR Part 745). EPA intends to use the oral input as well as written comments to develop its regulations. The regulations are intended to fulfill the mandates of Title IV of TSCA without unduly burdening industry. The target date for issuing a proposal is the end of 1998.

II. RESPONSES FROM MEMBERS OF THE PUBLIC

After opening remarks from EPA staff, the remainder of the meeting was devoted to taking public comments.

Below is a summary of the comments that were provided at the public meeting. Individual commenters are not identified. Where several commenters repeated a recommendation or when comments were generally similar, those comments are integrated into a single summary statement.

A. Issue 1 -- Coverage of lead-based paint activities, in particular clarification of the term "deleading"

1. Intentional lead removal vs. maintenance activities

The comments on this issue focused on the interpretation of deleading activities, distinguishing between whether there is an intent to delead as part of a project or activity or whether the effect of the activity can constitute deleading.

a) There is a tendency to get bogged down in the minutia of a definition and forget the purpose of the legislation, which is the protection of the environment and the public. In focusing on intent vs effect, we may lose sight of this purpose . If lead is released into the environment, the effect is the same regardless of the intent of a given project. A strict intent standard therefore may miss activities that should be controlled. This argues for EPA to use an effect-based standard as is the approach for the regulation of asbestos.

b) The intent of most projects that are contemplated in this industry is building or structure maintenance, not the elimination of a lead-based paint hazard. If intent is used as the standard, e.g. what is stated in the contract for services, then this loophole effectively will result in no controls. One could utilize the intent standard, however, if one argues that there is an intent in these types of projects to disturb paint and therefore activities that disturb lead should be covered.

c) The statute specifically uses the term "intent" and accordingly, EPA has no authority or justification to look at effects. If Congress had meant to include the effects of maintenance projects, then they would have used that term in the statute.

d) One solution may be to use indicia of intent which would protect the regulation from judicial scrutiny.

e) A clarification was requested for the term "lead-based paint hazard." If the paint is not disturbed, is there a hazard, for example, lead paint on a bridge is not a hazard per se. Does the elimination of a hazard always indicate removing the paint? Can the hazard be removed by applying a new coat of paint?

f) When determining exposure to lead, different risk categories should be established taking into consideration both the individual (adult non-workers and children) and the status of the property -- public or private, plus environmental concerns, such as wetlands. Recent blood lead studies in Massachusetts documented high lead levels in 700-900 adults and 300 children. This indicates that there is a high potential for public harm from lead exposures.

g) For residential structures, de-leading is required under other public health regulations to address the problem of lead exposures. This is not true for commercial buildings and steel structures such as bridges, since there isn't a hazard per se.

2. The need for a de minimis cutoff

Commenters provided a number of criteria that might be considered in establishing a de minimis level. There were no comments in opposition to the concept.

a) Base the cutoff at a level where there is no considerable harm to the environment. EPA cannot leave the decision re what is de minimis to the owners to define. A study to set the threshold may be appropriate.

b) De minimus standard should look at the size of the project, concentration of the activity in a particular area, volume of lead particles removed per unit of time, i.e., there may be different risks associated with the same amount of lead removed depending on whether the disturbance occurs over a day versus over several weeks. The use of 1000 sq.ft. of work surface needs to be revisited. Is it 1000 sq.ft. per unit of time or a given volume of "lead" released per unit of time?

c) A de minimis level should be tied to the method of removal. For example torch cutting and blasting involves enormous exposure and there may be different de minimis cutoffs for this method as compared to a method that results in less exposure.

d) Tie the cutoff to the concentration of lead in the paint. Many lead-containing paints are used as dryers in oil-based paint and in coloring of several pigments. One has to look at all of these factors in setting a de minimis cutoff.

3. Coverage of outside contractors vs. in-house employees

a) A number of commenters agreed that coverage should apply to both in-house personnel and outside contractors. This assumes in-house personnel are either involved in planning the work or in performing some of the tasks and could be at risk.

b) For some organizations, requiring training for in-house personnel, who have minimal or no direct involvement in a project, would be an economic burden and unnecessary. The OSHA training should suffice.

4. Prohibited activities

a) Activities such as open-flame burning of painted surfaces, cutting torches and the use of heat guns on painted surfaces should not be prohibited outright. Some may be safe with the proper controls. Open flame burning is on the "maybe" list for prohibition, because of very well documented problems, but should still be revisited. Cutting torches are a problem, but there is no alternative technology and this deserves some study re appropriate practices to reduce hazards.

b) No activity should be prohibited if the appropriate full protection of the workers, public and environment are provided. Industry can comply with limits and controls that are set.

c) Silica should be prohibited as an abrasive, because of the potential to cause silicosis. Currently, those companies that use non-silica products because they have voluntarily responded to avoid these potential risks, are at a competitive disadvantage with companies that continue to use silica.

5. Identification of lead-based paint

a) There does not need to be certification for the performance of "identification" tasks, since most of the workers to whom this might apply already have adequate OSHA training. This is not a routine function; when performed, it is more likely to be done under the supervision of a supervisor who may have broader safety training than would be necessary in this context.

b) The State of Virginia was concerned about the confusion between abatement activities versus remodeling. Accordingly, in their statute, if an area is tested and it contains lead that will be disturbed, then the project is considered abatement and is covered by the appropriate regulations. A copy of the Virginia statute will be sent to EPA.

B. Issue 2 -- The interface between OSHA's lead standards and EPA's TSCA section 402 regulations

a) The term "persons" which appears on pg. 44625 of EPA's Federal Register notice refers to both individuals and firms. There were suggestions that EPA clarify the distinction between contractors, firms or individuals employed by a firm. Do the requirements apply to individuals hired by a contractor or only to the contractor? It was suggested by some commenters that it would be easier to oversee the application of the rule with respect to firms, rather than individuals. The regulation needs to distinguish short-term maintenance workers from contractors.

b) The rules should not duplicate OSHA, but fill in the gaps. EPA could make it a requirement of certification that the person meet OSHA requirements, and to obtain certification, one would have to demonstrate that he or she took an OSHA training course. One could follow the same approach for state or local training programs, that is, demonstrate that one has taken these courses and fulfilled requirements. EPA might replicate the approach utilized for the regulation of asbestos removal with respect to OSHA.

c) There were concerns about an approach that allowed another regulation to substitute for EPA's. One needs to be clear about where one regulation ends and the other picks up. One could incorporate the specifications of the other agency's regulation into the EPA regulation, rather than incorporating that regulation by reference only.

d) Workers protect themselves and their families. The contractor has responsibility for protecting everything else, and the training should therefore target field supervisors or contractors who often have insufficient knowledge of how to conduct a safe lead-based paint removal activity

e) OSHA 1926.62 standards are not equivalent to the standards that EPA is proposing. There is no specific length of training or requirement for competency of the instructor or by the trainee. OSHA is not specific enough to accomplish the protection that Congress intended. Elevated blood lead levels in adult workers are indicative of the need for worker protection in addition to what OSHA requires.

C. Issue 3 -- Distinguishing among building and structure types

1. Defining buildings/different requirements for different building types

a) Buildings should be defined by public accessibility. However, the term "public access" is "fuzzy." There is a big difference between buildings that the public utilizes occasionally versus when they work in the building every day.

b) There should be separate requirements for public and commercial buildings, and steel structures. The distinction is especially important in training, because different abatement methods are used for each of these building and structure types.

c) Regulations should focus on demonstrable problems. Target the regulation to actual threats. Lead is not typically a hazard except in buildings built before 1978.

d) Determine public access in each building type and set the regulations accordingly, e.g. Type of Building - Government. Two categories of access: "few" (CIA) and "many" (Smithsonian).

e) Clarify responsibility for complying with regulations between building owners and tenants.

2. Terminology

a) Avoid the term "superstructure"; "steel structure" is a better term

b) The term "steel structure" may be inadequate, because wood and concrete structures can also be coated with lead-based paint.

D. Issue 4 -- Use of pre-existing courses

Note: There was some overlap in comments on this issue and Issue 2 described above.

a) EPA needs to develop a process for updating courses.

b) There is a 32-hour course which meets the requirements of the New Jersey Dept. of Health. It is undergoing some changes but is available as a model. Virginia has used the SSPC course as a model.

c) Use an industry consensus standard instead of an EPA standard. The American Industrial Hygiene Association has successfully utilized this process in the past.

d) Exams need to be conducted by a third party. There should be standard nation-wide exams.

e) There needs to be a mechanism to permit qualified professionals to demonstrate their competency by taking an exam without having to take a training course. There should also be some refresher courses of shorter length that might be an option.

f) The Federal Highway Administration, which has extensive involvement in the repair and maintenance of bridges, will share with EPA a training course it is setting up for supervisory personnel. It is a four-day course and is offered through the National Highways Institute.

E. General Comments

a) EPA should consider a negotiated rulemaking process that would enable the Agency to benefit from the full participation by industry, both from a technical perspective and from the perspective of crafting a consensus on a regulation.

b) It is critical to industry that EPA promote reciprocity among the states. Concern was expressed that a delay in publication of a final EPA rule will result in states developing individual regulations and increase the reciprocity problems.

III. MEETING FOLLOW-UP

Participants requested copies of the summary of the comments from the public meeting. They also requested a copy of the overhead transparencies that outlined the issues described in the Federal Register notice. These products were requested to help commenters in the preparation of any subsequent written responses that would be prepared and submitted. The original October 3 deadline for comments was extended to November 3, 1997.

REQUIREMENTS FOR LEAD-BASED PAINT ACTIVITIES SEPTEMBER 3, 1997 EPA OFFICE OF POLLUTION PREVENTION AND TOXICS PUBLIC MEETING