EPA has denied a January 28, 2014, petition by various housing industry groups, requesting EPA to develop a new Toxic Substances Control Act (TSCA) section 8(d) recordkeeping rule aimed at building managers, building owners, and contractors that have or may need to disturb lead based paint in public and commercial buildings. 79 Fed. Reg. 13968 (March 12, 2014).

On March 12, 2014, EPA published its reasons for denying the petition. It is important to note that in its justification, EPA announced, as an alternative to the TSCA rulemaking, it will seek the information not under TSCA section 8(d) but in the form of information request letters. The letters will be sent to public and commercial buildings and their owners, management companies, and contractors and will seek records and data related to the Occupational Safety and Health Administration’s (OSHA’s) construction standard for lead.

EPA indicated that it will “issue information request letters to a smaller, targeted group of entities.” EPA believes that this approach will allow it to collect and assess the utility of available OSHA records and potentially relevant information for regulating lead in buildings, without being limited in scope to “health and safety studies” that are allowed to be collected under a TSCA section 8(d) rule.

In addition, EPA noted it is preparing an industry survey to collect various types of information from the public and commercial building industry. This survey, “Survey of the Public and Commercial Building Industry,” is to be designed to target additional information EPA expects may be useful to its  public and commercial buildings analysis. 78 Fed. Reg. 73520 (December 6, 2013).

In light of EPA’s announcement, building managers, building owners, and contractors that have or may need to disturb lead based paint in public and commercial buildings may wish to review their safety policies, procedures, and training programs to ensure OSHA compliance. Also check your records that they are up-to-date — in the event you receive one of EPA’s information request letters.