Sanity in Washington?

July 19, 2011 -- Perhaps the most significant news from last Friday's EPA ruling on RRP was not the Agency's decision to adhere to the status quo (reject the proposed dust wipe sampling and clearance requirements), but the news of its solid support of RRP, its techniques, and its effectiveness.

They emphasized in the July 15th ruling, “In the absence of the final 2008 RRP rule, adequate work practices are not likely to be employed during renovation, repair, and painting activities. EPA’s analysis indicates that there will be approximately 1.4 million children under age 6 affected by the RRP rule. These children are projected to receive considerable benefits due to the RRP rule. In addition, older children will also benefit from the protections afforded by the RRP rule.” Most interpret this statement as a firm endorsement that should settle the debate as to whether RRP will stay or eventually go.

What Was Contained in the Announcement
There were several decisions encased in the July 15 announcement that will permanently affect RRP going forward. According to the EPA's pre-publication ( document, the most important announcements were as follows:

The EPA announced it is convinced that the work practices established in the 2008 RRP rule are reliable, effective, and safe, and that imposing a dust wipe testing or clearance requirement is unwarranted. They cite three reasons:

  1. Imposing a clearance requirement would be a departure from the balance struck in the RRP rule with respect to the distinction between abatement and renovations.
  2. The best evidence that EPA has of the effectiveness of the work practice standards is the Dust Study, and it demonstrates that overall the full suite of RRP work practices is effective at minimizing exposure to dust-lead hazards created by renovations. The EPA Dust Study demonstrates that with respect to these very activities, the suite of RRP work practices reliably addressed the hazards created by the renovation activity.
  3. EPA was cautious not to hold renovation firms responsible for abating pre-existing dust-lead hazards. EPA stressed their concern about the potential of firms having to clean up pre-existing dust-lead hazards.

Addressing the problem of the two accepted pre-testing methods (Lead Check swabs and Esca-Tech’s D-Lead kit) producing reliable positives below the acceptable false rate of 16%, EPA is now allowing certified renovators to collect paint chip samples from painted components that will be disturbed by a renovation and submit those samples to an NLLAP- recognized entity for analysis.

EPA will modify the model certified-renovator training course to add the necessary information on sample collection, chain-of-custody, and laboratory submission procedures. In order to allow those who are already certified to learn of this option and acquire the necessary information and skills, the EPA will post the information developed for the renovator training course on its website. EPA will also e-mail this information to certified renovation firms that provided an e-mail address on their certification applications.

EPA believes that certified renovators who have already been trained in how to properly use a test kit will be able to learn how to properly collect a paint chip sample and submit it to an NLLAP-recognized entity from the material EPA posts on its website.

EPA will modify the record-keeping requirements to accommodate this option and include information specific to paint chip sample collection, such as component and location tested, identity of the NLLAP entity analyzing the samples, and the sample results.

EPA is also modifying the record keeping requirements to include a certification by the certified renovator that, if paint chip samples were collected, that they were collected from the components in the locations specified, that the samples were submitted for analysis to the identified NLLAP-recognized entity, and that the sample results were as specified.

A report regarding the EPA's Scientific Advisory Board regarding the non-residential Interior Decision will be made public on or before September 30, 2011.  The Notice of Proposed Rulemaking for the Exterior Proposal will be made public on or before December 15, 2011.  The EPA has the flexibility to combine the two into one proposal.

This is perhaps the biggest change and it will not be easy for those who fall under the requirement. Even the EPA admits it is not easy and offers alternatives rather than firm solutions to the requirement. Their willingness to impose the requirement is based on their estimate that only approximately 2% of exterior jobs would use exterior containment, and the incremental cost of vertical containment varies from $330 per wall to $1,640 per wall, depending on the size of the job.

EPA is now requiring that vertical containment (or equivalent extra precautions in containing the work area) be used on exterior renovations performed within 10 feet of the property line. The new requirement states “… if the renovation will affect surfaces within 10 feet of the property line, the renovation firm must erect vertical containment or equivalent extra precautions in containing the work area to ensure that dust and debris from the renovation does not contaminate adjacent buildings or migrate to adjacent properties. Vertical containment or equivalent extra precautions in containing the work area may also be necessary in other situations in order to prevent contamination of other buildings, other areas of the property, or adjacent buildings or properties.”

To ensure that renovation firms understand that the requirement refers to a wide variety of work area containment systems, EPA is including the phrase “or equivalent extra precautions in containing the work area” in this requirement.

EPA realized that it might be costly or impracticable to deploy an elaborate vertical containment system, for example, in high-rise multi-story buildings. Also they did not wish to create hazardous situations for workers that would outweigh the benefit of capturing the dust with scaffolding-based vertical containment systems. EPA believes that equally effective systems may exist. Thus, EPA added language indicating that “equivalent extra precautions in containing the work area” will also satisfy the requirement to contain dust on the worksite of exterior renovations performed within 10 feet of the property line.

In a concession to the difficulty for renovators, EPA is also amending the containment provisions for both interior and exterior renovations to permit renovation firms to erect vertical containment closer to the renovation activity than the minimum floor or ground containment distance specified in the RRP rule to give renovation firms more flexibility in designing effective containment strategies for particular work sites. For exterior renovations, this amendment would allow a renovation firm to construct vertical containment less than 10 feet from the renovation activity. If a renovation firm chooses to take advantage of this provision, the ground containment may extend less than 10 feet, stopping just outside the edge of the vertical containment, as long as the distance is sufficient to contain all dust and debris during the renovation and post-renovation cleanup.

The EPA ruling calls for more rigorous enforcement, starting with information programs directed towards homeowners, and asking the various states and tribes that operate their own programs to be more aggressive. State and Tribal programs must be at least as tough as the federal program, and that has caused some problems with relation to fines and enforcement. The EPA responded to the complaints that the federal fine of $37,500 per offense and per day was not always feasible by each state or tribe by establishing a minimum penalty authority for State and Tribal programs of $5,000. Because they feel it is especially important to deter multiple violations and continuing violations, this final rule retains the “per violation, per day” requirement.

The EPA has prohibited the use of machines designed to remove paint through high speed operation such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblasting, on painted surfaces unless such machines are used shrouded and equipped with a HEPA vacuum attachment to collect dust and debris at the point of generation. Machines must be operated so that no visible dust or release of air occurs outside the shroud or containment system.

EPA agrees with the requirement that HEPA vacuums be operated in accordance with manufacturer’s instructions, but not the requirement that compliant vacuums be rated at a MERV value of 17 or higher. This means more frequent filter changes per manufacturer’s instructions

EPA agrees with the clarification as proposed and amending 40 CFR 745.90(b)(2) and (b)(4) to refer specifically to the work practice requirements in 40 CFR 745.85(a).

EPA is retaining the provision that allows the cleaning verification step to be skipped if the renovation firm must also achieve clearance. However, the EPA believes that renovation firms whose projects are subject to clearance only, as a result of contractual requirements, are less likely to gain the repetitive experience of cleaning sufficiently so as to meet clearance with few cleaning cycles, so EPA encourages property owners who include clearance in their renovation contracts to also require renovation firms to perform cleaning verification.

The EPA will now require training providers to submit documentation regarding the qualifications of the education, training and work experience of training managers and principal instructors with their applications for accreditation.

Required training materials that must be submitted along with an accreditation application. Further clarification of the training requirements centered on the "hands on" requirement and this ruling spelled it out: Renovator trainees must receive hands-on training in using test kits, renovation methods that minimize creation of dust and lead-based paint hazards, containment and cleanup methods, and cleaning verification. Dust sampling technician trainees must receive hands-on training in dust sampling methodologies and report preparation.