Challenges in Environmental Regulations: Lead Exposure Issues and Advocacy

There Ought To Be A Law! EE538 A1 Research for Environmental Agencies and Organizations 2 (Spring 2024) Presentation By Michael Sharp Janus Corporation Senior Safety Officer mikes@januscorp.com Not a Scientist, Not an MD, Not a PhD, Not a Researcher, Not even a Scholar However: As of 4/4/24 it has been 40 years that I have been in the Hazardous Materials Remediation Industry! 1

There Ought To Be A Law! When you start thinking about an issue like lead, it is easy to look and find things that need to be changed. The OSHA regulations have not been significantly revised since 1979! The numbers used for health-related issues have never been health-based: CDC s Blood Lead Level for a lead poisoned child. OSHA s Blood Lead Level for Medical Removal from projects exposing workers to lead. OSHA s Action Level (increases in air monitoring, blood monitoring, and training). OSHA s Permissible Exposure Level (level above which which respirators, suits and showers are required). EPA s Lead In Dust hazard (during a risk assessment) and clearance (after an abatement action) levels. EPA s Soil Hazard levels for adults and children. EPA s Lead-Based Paint level. EPA s allowable level of lead in paints (and coatings for residential and public buildings) 2

There Ought To Be A Law! When you look at regulations, it is not hard to find things that do not comply with logic or common sense. When it comes to construction, this is often due to the fact that those who write the laws have never conducted the work they are trying to control. 3

There Ought To Be A Law! Money talks, and Bean Counters often get in the way of good work practices and safety! OSHA openly admits that they are not allowed to write regulations that would increase the cost of construction to the point where costs become impracticable. There is controversy over how OSHA calculates this!. Regulators are lazy (often stealing from one regulations to help write another) For example, using regulatory language from a General Industry Standard to justify a requirement in the construction standard. OEHHA claims that a PEL of 0.5 is necessary in order to prevent a worker s blood lead level from exceeding 5 ug/dl. But they base their study only on workers using lead in the manufacturing industry.. 4

There Ought To Be A Law! Regulations often conflict. Example EPA s waste rules are not as Strict as California Waste rules. EPA is fine with waste from CA being taken to other states and being disposed of per the receiving state s rules and regulations. Many contractors do this, despite the fact that California prohibits this practice.. Science often gets in the way of health-related issues. Science will claim that you can t justify spending money on things science can not measure.. With the coming EPA Changes to lead in dust levels, we could comply with the new hazard and clearance levels while reducing costs but it is hard to get people to listen to this.. 5

There Ought To Be A Law! GATHER YOUR FORCES! How to make changes to regulations or introduce new regulations: Once you have a rule you d like altered or a rule you d like to introduce there are a few ways you can move forward let s look at two of these options: Political Process Find a politician that is willing to help.. You may need to hire a lobbyist, and you may need to work with the Politician s staff not the politician directly. Never trust that the politician understands what you are trying to do, and never trust that they won t make a deal with another politician that undermines what you are trying to do, or drop your issue at the last minute (didn t have the votes!) 6

There Ought To Be A Law! Brining RRP into CA - Political Process: Attempt 1 Brought the idea of bringing the Federal EPA RRP rule into CA jurisdiction to a California State Senator. Senator would not talk to us until we got a lobbyist involved.. As time to vote came up on the bill he realized he did not have the votes to get it passed, and changed the bill to a taxation bill instead of addressing the intake of the RRP rule into CA jurisdiction. Attempt 2 Brought the idea of bringing the Federal EPA RRP rule into CA jurisdiction to the same California State Senator. Senator, never read the regulation, never listened to us talk about the regulation, but thought the bill would enhance his reputation for protecting CA workers (Unions are a big supporter).. Effort failed due to lack of support.. 7

There Ought To Be A Law! Brining RRP into CA - Political Process Continued: Attempt 3 Again brought the idea to the CA Senate, but to a different Senator, this time we played on the heart strings of those who had heard of how bad lead is to children.. The bill flew through the committee process, passed in both the CA Senate and the CA Assembly with minimal resistance (no one actually voted against it) and it was signed by the Governor. However, those opposed to this bill have used the bureaucracy in CA politics, to block its implementation for two to four years at this point. 8

There Ought To Be A Law! Regulatory Process Cal/OSHA Changes to Lead in Construction and General Industry Anyone can petition a regulatory agency to modify a regulation or create a new regulation. The regulatory agency will likely take several months to consider the proposed changes, or newly proposed rule. Then they will interview and discuss the potential changes with those involved in the industry every aspect of the industry.. Once potential changes are decided on by the regulatory agency three public comment periods will be held.. 9

There Ought To Be A Law! Be sure what you are asking for is enforceable! The new RRP rule for CA has an enforcement process all planed out.. Lack of enforcement undermines those that are following the law! This was the issue with initial RRP rule from the EPA. I Initially conducted RRP training 5 to 6 days a week (certification took 8 hours and passage of a 25-question test). When refreshers came around 5 years later refresher classes were held two or three times a month.. 10

There Ought To Be A Law! Watch out for those that will try to eliminate their sites from the requirements of the new rule: With construction: You can t protect the site, nor the family back home, without protecting the workers while they do the work.. Workers can get efficient at things they do every day.. Having rules that change depending on type, age, or use of the building(s) often prevents this efficiency from developing.. 11

There Ought To Be A Law! Integrated Hazard Management HMS, Inc and Janus Corporation have been working on this for decades.. Next step is to get Cal/OSHA and California Department of Public Health to approve the training for this trade.. Once the training is approved we will work with California State License Board to create a prevailing wage, and a new trade license for this type of work.. Mike Ely, my boss, and I, with a little help from some others, created the CA CSLB C-22 trade license which is the asbestos abatement contractor s license which went into effect in 2015.. 12

There Ought To Be A Law! Be careful of those that will conflict with you some may not be obvious! Some will oppose you because they don t have the field experience to understand what you are trying to do.. Some misinterpret what you say. Occasionally this is on purpose. Unfortunately, these conflicts can come from your own side of the discussion. 13

In response to a letter I wrote to the Cities and Counties in CA that are receiving LBP Manufacturer monies, telling them when they remove LBP they need to be concerned with asbestos, a Scientist, that helped author the 1995 HUD Guidelines wrote a letter stating: No guideline, regulation, or law requires asbestos or testing for other substances in the context of lead hazard control work. In short, (Mike Sharp s) position is not supported by anyone else in the field. 14

A local quote included in the paper I wrote: Following up with our phone conversation and until I receive further clarification from the remaining California Air Districts, The Bay Area Air Quality Management District (BAAQMD) position on the subject matter is the following. Paint is a category 2 non friable material (11-2-209). If the material contains >1% asbestos and is made friable by crushing, sanding, sawing, etc... (11-2-222.3) then it is regulated under Air District Regulation 11 Rule 2. 15

A State quote included in the paper I wrote: From a conversation with Max Weintraub, Director of Lead Related Construction for CDPH (California Department of Public Health): I would be interested in understanding why they believe they are not subject to oversight by other state and federal agencies and departments. That is (to put it mildly) incorrect. 16

A Federal Federal quote included in the paper I wrote: Quoted from an email conversation with Federal EPA Region IX: You are absolutely correct in your understanding of the requirement to follow all federal and local Lead and Asbestos regulations when conducting work that disturbs lead and asbestos. There are no exceptions. In the case of any work disturbing lead in California, CDPH and EPA regulations would apply. AND I don't understand the rationale that doing lead abatement exempts them from asbestos regulations. Ronald Tsuchiya, EPA Region IX.. 17

There Ought To Be A Law! The process requires baby steps (at least at first), persistence, and a tough outer skin. I often told my employees, when arguing a point with them, If I can t beat you with logic, I will beat you with volume. You d be surprised to find out how effective that is with politicians and regulators (though the volume part needs to come from additional people raising their voice with yours not one person actually yelling at them). Michael Sharp Senior Safety Officer, Janus Corporation (209) 993-6123 mikes@januscorp.com Thank You For Your Time 18