The U.S. Environmental Protection Agency (EPA) has decided against expanding its Lead Renovation, Repair and Painting (LRRP) rule to include lead-dust sampling and clearance testing requirements, the Agency announced on July 15. AGC played a key role in communicating the construction industry’s concerns with the proposed “clearance testing” requirements. AGC worked alongside a coalition of real estate and development groups to present a collective industry voice that has led EPA to refrain from straddling contractors with costly and unnecessary dust wipe sampling and laboratory analysis requirements.
After reviewing AGC’s and other public comments and available science, EPA has abandoned its plan to require contractors to test dust to prove the absence of lead following construction projects covered by the federal LRRP rule. According to EPA estimates, the cost of its proposed additional testing requirements would have come at a price of $300 million per year (2010$). AGC praised EPA for rightly recognizing that the existing lead-safe work practices and clean up requirements under the LRRP rule — which just became fully implemented in April 2010 — will protect people from any lead dust created during renovation jobs, without the need for additional costly clearance requirements.
EPA had agreed to complete a final rule addressing the “clearance testing” issue by July 15 as part of an agreement to settlement litigation with the Sierra Club and other petitioners over certain post-renovation cleaning requirements of the current LRRP rule.
The current LRRP rule requires businesses that repair or renovate older buildings — specifically homes, schools and daycare centers built prior to 1978 — to adhere to strict lead-safe work practices. Contractors currently are required to wipe down disturbed surfaces after the work is complete and match the result to an EPA-approved card to determine whether lead paint dust is present. The proposal shot down this month would have required contractors to take additional steps to demonstrate that dust-lead levels remaining in the work area are below regulatory levels.
Excessive, Costly Clearance Testing Rejected
Specifically, under EPA’s “clearance testing” proposal , the remodeler would have been required to collect several dust samples from surfaces both in the work area and immediately outside it, send them to an EPA-accredited lab for lead testing (or hire a certified testing specialist to examine the work area), and then provide the results to the building owner and occupants to document numeric lead levels. What is more, for some renovations, EPA’s proposal went so far as to consider that lead dust levels after the renovation must be below the regulatory dust-lead hazard standards. These provisions would have added significant liability to renovation and remodeling firms and their workers by potentially making them responsible for lead exposure issues that existed in the work area before the renovation work began, as well as outside the area where the work took place. Moreover, as the LRRP rule expands to public and commercial buildings, so would any new lead-dust testing or clearance requirements.
AGC’s Work to Block Clearance Testing Requirements
AGC worked closely with the Real Estate Roundtable, the National Association of Home Builders, National Association of Realtors®, Building Owners and Managers Association International and more than a dozen other groups to oppose to EPA’s “clearance testing” proposal. The coalition’s letter maintains that EPA has statutory authority only to suggest guidelines for the conduct of LRRP activities, not to impose work practice standards. Moreover, the coalition’s letter points out that EPA has not established that all LRRP activities being regulated create lead-based paint hazards and (as stated in AGC’s prior letter) EPA has not conducted a “study of certification” nor has the Agency convened a Small Business Advocacy Review Panel.
The coalition’s letter also stresses that the proposed “clearance testing” requirements are inconsistent with the enabling statute (the Toxic Substances Control Act) because they would eliminate the distinction between abatement and renovation and that EPA has acted in an “arbitrary and capricious” manner because it has failed to consider cost and liability factors in this rulemaking.
On Capitol Hill, AGC and its coalition partners leaned on lawmakers to carry industry’s message. Senator James Inhofe (R-Okla.) led a group of Republican senators in sending a letter to the EPA Administrator Lisa Jackson in April lobbying against the “clearance testing” mandate. In the House of Representatives, the coalition also worked with Rep. Denny Rehberg, a Montana Republican, who offered an amendment to the Department of the Interior’s appropriations bill that would restrict EPA funding until the agency “approves a test kit that meets the ‘false positive’ and ‘false negative’ criteria stated in the regulation.”
Minor LRRP Rule Revisions Finalized
Although EPA is not imposing clearance requirements, the final rule clarifies and strengthens the current lead-safe work practices. It states that uncertified workers should be trained by certified renovators in lead-safe work practices and that certified renovators should ensure their workers contain lead dust and debris. Other minor revisions to the LRRP rule include—
- A provision allowing a certified renovator to collect a paint chip sample and send it to a recognized laboratory for analysis in lieu of using a lead test kit;
- Minor changes to the training program accreditation application process;
- New standards for e-learning in accredited training programs;
- Minimum enforcement provisions for authorized state and tribal LRRP programs (authorization to charge higher penalties for noncompliance);
- Minor revisions to the training and certification requirements for renovators; and
- Clarification of requirements for vertical containment on exterior renovation projects, the prohibited or restricted work practice provisions, and the requirements for high-efficiency particulate air (HEPA) vacuums.