Monday, July 18, 2011

Final LRRP Rule Says Lead-Dust Clearance Testing Unnecessary

Jul 15: As part of a settlement of litigation over certain post-renovation cleaning requirements of the 2008 Lead Renovation, Repair, and Painting Program (LRRP) rule, U.S. EPA agreed to propose a number of revisions to the 2008 LRRP rule that established accreditation, training, certification, and recordkeeping requirements as well as work practice standards for persons performing renovations for compensation in most pre-1978 housing and child-occupied facilities and to subsequently take final action on the proposed rule by July 15, 2011. The action is EPA's final action on all aspects of the May 6, 2010 proposal and will become effective 60-days after publication in the Federal Register which is currently expected to occur in the week of July 24, 2011. EPA said, "The Agency is not imposing additional "clearance" requirements because existing LRRP work practices and cleaning protocols effectively reduce lead hazards."
    EPA indicated it has decided not to promulgate dust wipe testing and clearance requirements as proposed. However, EPA is promulgating several other revisions to the LRRP rule, including 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, standards for e-learning in accredited training programs, minimum enforcement provisions for authorized state and tribal renovation programs, and minor revisions to the training and certification requirements for renovators. EPA is also promulgating clarifications to the 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.
    In further explanation EPA said, "After carefully weighing the issues at stake and considering the concerns raised by commenters, and as explained in greater detail below, EPA has concluded that, on balance, the information before the Agency does not support imposing a dust wipe testing or clearance requirement on renovations. In particular, EPA is convinced that the work practices established in the 2008 LRRP rule are reliable, effective, and safe, and that imposing a dust wipe testing or clearance requirement is unwarranted."
    Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works (EPW) issued a release welcoming the announcement which he said recognizes "that current lead-safe work practices and clean up requirements will protect people from lead dust hazards and it is not necessary to impose lead-dust clearance testing requirements in the Lead Renovation, Repair and Painting Rule (LRRP)." He said the decision addresses the concerns voiced in an April 15 letter to EPA Administrator Lisa Jackson in which Senator Inhofe, along with eleven other senators, expressed deep concerns about the Agency's proposed amendments to LRRP, which would have required "clearance testing" to prove the presence or absence of lead following a project's completion. He said, "These additional requirements would have created confusion and complications for renovators who have already completed their lead-based paint training and imposed significant additional costs."
    In the release Senator Inhofe indicated he supports the intent of the rule, which is to protect pregnant women and children from lead dust hazards, he has been a staunch critic of EPA's implementation. On April 22, 2010, LRRP went into effect even though EPA only had 204 training providers nationwide. This meant that contractors did not have enough access to the training programs required to achieve compliance with the rule. In response, Senator Inhofe and Senator Collins (R-ME) introduced an amendment to the supplemental appropriations bill, which blocks funds from being used to "levy against any person any fine, or to hold any person liable for construction or renovation work performed by the person."  He said the amendment, which passed by a vote of 60 to 37, sent a clear bipartisan message to EPA that it must alleviate the widespread confusion over the rule's implementation. By May 2010, EPA announced a memorandum extending the LRRP deadline for renovators to enroll in training classes to September 30, 2010; it also extended the deadline for contractors to complete training to December 31, 2010. Most importantly, the Agency agreed to work to provide additional trainers in areas of need.
    Senator Inhofe said, "I am pleased that common-sense has once again prevailed at the EPA regarding the lead-based paint rule. The intent of the rule, public health protection especially for children and pregnant women, is something everyone supports, but it needs to happen in a way that does not place costly or confusing burdens on those trying to implement it. I applaud the Agency for responding to our concerns and making the right decision, which will provide maximum benefits for all. " 
    Senator Snowe (R-ME) said, "Today's ruling is a major victory for small business owners nationwide saddled with needlessly onerous regulations that are stifling their ability to grow and prosper during these difficult economic times. As we learned during its initial implementation back in 2009, this well-intentioned effort to protect pregnant women and children from lead exposure presented significant unintended consequences and undue burdens for renovators and homeowners alike. It is essential that agencies account for the impact new federal regulations will have on the economy, families and small businesses before rules are promulgated. I am pleased that, in this instance, EPA has withdrawn a proposed regulation deemed unnecessary and urge the agency to continue its stringent evaluations to mitigate the effects of rules that impose government costs and burdens where they are not necessary."
    Access the prepublication copy of the EPA final rule (click here). Access EPA's LRRP website for extensive background and documents (click here). Access a lengthy release from Senator Inhofe with links to related information (click here). [*Toxics]