The EPA has turned down a request from several organizations that asked the Agency to issue a TSCA Section 8(d) rule that would force owners of public and commercial buildings (P&CBs) to provide the Agency with records related to OSHA’s construction standard for lead.  Section 8(d) authorizes the EPA to require the submission of unpublished health and safety studies initiated or conducted by, or known to or reasonably ascertainable by, manufacturers, processors, and distributors of chemical substances or mixtures. 

The Agency explained that the rule requested by the petitioners would not result in the EPA receiving much useful health and safety information regarding lead exposure in P&CBs.  However, the Agency does not disagree that more information of this type is of value and has now indicated that it will attempt to obtain it in a “more targeted, efficient, and less burdensome manner.”

Data requested

Received by the EPA on October 31, 2013, the petition—authorized by TSCA Section 21—from the International Union of Painters & Allied Trades, the Lead and Environmental Hazards Association, and the National Association of Lead and Healthy Homes requested that the EPA issue the Section 8(d) rule to require that property managers, building owners, and contractors disturbing lead-based paint in P&CBs provide the Agency with six types of “critical” information related to the OSHA construction standard for lead.  Specifically:

• Personal or area air sampling data;
• Employee medical surveillance data and resultant evaluation;
• Paint analysis results and any resultant studies that were used to determine whether initial exposure monitoring should be required;
• Data and studies considered in the development of a compliance plan;
• Air monitoring data that documents the source of lead emissions; and
• Data considered in the evaluation of the effectiveness of mechanical ventilation in controlling exposure. 

Record retention not required

In denying the petition, the EPA stated that the petitioners did not “set forth sufficient facts established that it is necessary to initiate a TSCA section 8(d) reporting rule.”  Also, after consulting with OSHA, the EPA found that a number of the records named in the petition do not need to be maintained by employers under the construction standard for lead.  For example, construction employers performing renovation involving lead-based paint may not need to keep all the records in question if their employees are not exposed above the standard’s permissible exposure limit (PEL) or action level.  Thus, the EPA believes the amount and type of information the Agency could realistically expect to receive under a reporting rule would be significantly limited.

The EPA also says it has reservations regarding the potential for this information to inform the P&CB rulemaking analysis.  For example, as indicated by OSHA, air sampling records are most commonly found in the form of a simple report indicating whether samples are above or below an applicable PEL.  Information contextualizing this exposure data is not likely to be ascertainable from employers’ OSHA records.

Enforcement records and survey

The Agency says it is taking several steps to obtain the type of information requested in the petition.  Specifically, the EPA says it is already working with OSHA to determine the availability of lead sampling and exposure data in OSHA enforcement records.  Also, pursuant to its authority under TSCA, the EPA will issue information request letters to a smaller, targeted group of entities.  In addition, the Agency is preparing to conduct an industry survey to collect various types of information from the P&CB industry. 

The EPA notice denying the petition was published in the March 12, 2014, FR.