Ramifications of State-Run RRP Programs

EPA has the authority to authorize states, tribes and territories to administer their own RRP program that would operate in lieu of the EPA regulations. When a state, tribe or territory becomes authorized, contractors and training providers working in these areas and consumers living there should contact the appropriate state, tribal or territorial program office. Currently the following states have been authorized by EPA: Alabama, Georgia, Iowa, Kansas, Massachusetts, Mississippi, North Carolina, Oregon, Rhode Island, Utah, Washington, and Wisconsin. These states lobby for the control and are aggressively solicited by the EPA as well. There are a couple of reasons why states want control. 1. States often have their own initiatives for healthy homes in general, and lead specifically - as do many municipalities. States like Massachusetts, Rhode Island, and Wisconsin have had strong lead containment programs in their states for years before RRP ever became law, and in many ways the EPA RRP Rule is behind in organization, funding, and enforcement from the in-place state run programs. 2. Individual states have their own building codes, and contractor licensing requirements. Control of building permits, building inspections and product and work standards are easier when rules such as OSHA’s and EPA’s are under control of the state or municipality. OSHA is state controlled in more than 23 states, as an example. 3. Certification is a source of income. Like much licensing and other standards and practices, the fees become a source of revenue. Recently, EPA was negotiating for Florida to assume control of the RRP rules and offered the nearly $1million training and certification fees collected (certifying firms and renovators for Florida contractors) as an incentive for them to take over the program. They didn’t. It’s not a one-way street. The EPA wants states to control RRP because of the shortage of budget and manpower to enforce the rules. If states and municipalities have permitting and inspection, it is far easier to have an eye on all compliances than from the bureaucratic perch of EPA. So why haven’t more states taken on their own RRP program? The answer may have been found and a solution offered in the recent July 15, 2011 ruling. It is the size of the fines. While EPA can levy fines of up to $37,500 per day per offense, most states do not have the authority to assess fines of that magnitude for environmental offenses, and because state programs must be equal to or more stringent than the national RRP Rule, states without the authority to sue or assess fines equal to or greater than EPA can not assume RRP programs. Dealing with that issue, EPA commented in their July 15 ruling that several states had argued that their legislatures had already created the authority to establish an RRP program, but the maximum penalty amount that could be levied was less than $10,000. Five States described their existing penalty authorities--one already has a minimum penalty authority of $10,000, one has $5,000, and the other three have $1,000. These States did not believe that they would be able to increase the maximum penalty authority, because it was comparable to other programs administered by the State, or that it would take several years to get an increase through the legislature, during which time EPA would have to administer the program in their jurisdictions. EPA’s response was to establish a minimum penalty authority for State and Tribal programs of $5,000. Because it is especially important to deter multiple violations and continuing violations, this final rule retains the “per violation, per day” requirement. EPA believes that States and Tribes may legitimately consider any of the factors that EPA typically considers, such as nature, circumstances, and extent of the violation, the culpability of the violator, history of prior violations, ability to pay or continue in business, voluntary disclosure, and attitude of the violator, but will not require consideration of any of these factors. Finally, EPA made the explicit requirement that States and Tribes have the ability to sue violators to collect penalties and that the burden of proof for enforcement be no more rigorous than the EPA standard under TSCA. EPA believes that these two elements are important elements of an effective enforcement program. Having states administer RRP is not without its downside. National training for renovator certification may or may not suffice for a particular state program, and even if it does, there can be many different nuances to the required work practices. Plus, if you are a contractor who works across state lines, your methods of doing business and RRP work may not conform in each area. Imagine a contractor who works in Massachusetts, Connecticut and Rhode Island; he or she would need to be sure they conform to three different programs. Most will tell you it’s tough enough complying with one. Resource: Read EPA’s comments on state and tribal programs

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