EPA Roils the Water with Possible Stormwater Regulations

July 30, 2010
Existing buildings could be affected by stormwater and lead paint regulations

The EPA has opened dockets on two issues – stormwater management and lead-based paint – that have enormous importance to our industry.

On May 10, the EPA released a notice that it is embarking on the process to collect information from developed sites, via questionnaires to be sent out randomly to owners and developers, as the first phase along a path that may eventually lead to new stormwater regulations on existing buildings – which would be a step far beyond the EPA’s current regulatory reach.

Under the Clean Water Act, the EPA presently regulates point sources, including active construction sites. By sending the proposed information collection request (ICR) to owners of already developed properties, BOMA believes that the EPA is expanding its authority beyond those given to it in the Clean Water Act. In addition, the questionnaire itself is problematic. It would take considerable time and resources to complete and it requests information the owner may not have (such as permit plans), especially if the owner was not the developer of the project. By the EPA’s own estimate, the questionnaire would take 30 hours to complete, but we estimate it would take much, much longer – and that’s if it could even be done using only in-house staff without having to incur the expense of consultant and/or engineering support that may be needed.

To add to this already overly burdensome process, the questionnaire asks for financial information that seems to have no bearing on the issues at hand and that we believe most would consider confidential or proprietary. Since the questionnaire would ask for information over the five years, any "big picture" the EPA hopes to piece together on the health/wealth of the industry would be wildly skewed, at best, since the past five years have been anything but typical.

BOMA believes that the EPA is overstepping its bounds. Developed land, as a category, is not a point source under the Clean Water Act; the EPA has no authority to regulate impervious surfaces; releases into municipal separate storm sewer systems (MS4s) are not discharges into waters of the U.S.; and for properties where runoff is channelized and discharged into a water of the U.S., the EPA has not met the statutory prerequisites necessary to exercise any regulatory authority over such discharges.

BOMA, in conjunction with the Real Estate Roundtable, International Council of Shopping Centers, National Multi Housing Council, National Apartment Association, NAIOP, the Commercial Real Estate Development Association, and the National Association of Real Estate Investment Trusts, filed comments on the EPA’s information collection request and plans to continue to work to educate the EPA, the Small Business Administration, the Office of Management and Budget (OMB) and Congress that this is an expansion of the EPA’s authority and the EPA should not be allowed to proceed without first following the process legislated by Congress under the Clean Water Act.

And the bad news doesn’t stop there. On May 6, the EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) titled "Lead: Renovation, Repair, and Painting Program for Public and Commercial Buildings." This is the first step in the EPA’s plans to promulgate regulations on both internal and external building renovations.

The EPA and HUD have a long legislative and regulatory history addressing lead-based paint activities and hazards in "target housing" and "child-occupied facilities." Studies to date have been undertaken almost exclusively in residential settings. The EPA itself acknowledges that issuance of the ANPRM derives from a litigation settlement agreement with advocacy groups and not any imminent public health emergency or crisis.

BOMA believes that the EPA must not move forward to issue regulations on lead-based paint in commercial buildings absent credible health studies, undertaken in commercial building settings, which determine there is a known or imminent public health emergency. We further believe that the EPA must also consider the impact that any lead-based paint regulations will have regarding energy efficiency and water conservation retrofits in commercial buildings.

Though lead has long been prohibited in wall paints, it is still commonly used in commercial and industrial applications, such as metal doors, equipment, and handrails. As such, the EPA is not expected to limit its regulatory scope to older buildings, as it has in residential settings (pre-1978).

BOMA International and our real estate coalition partners will be weighing in and stressing that the EPA is overstepping its authority. On both the lead and stormwater issues, we are also loudly making Congress aware of the EPA’s actions. However, it’s highly unlikely that our current congressional leaders will make a stand against the Obama administration.

Karen Penafiel is vice president of advocacy for BOMA International. She can be reached at [email protected].

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