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51����, Industry Partners Ask Agency for More Time to Comment

UPDATE:  In response to 51���� and its industry partners’ request, EPA has extended an additional 30 days the public comment period on its “Section 610 Review” of the 2008 Lead Renovation, Repair and Painting Program (RRP) rule – .  51���� is preparing to comment by the new Sept. 7, 2016, deadline.

The U.S. Environmental Protection Agency (EPA) recently announced that it is reviewing its 2008 , which has been the subject of much debate and controversy since all the requirements took full effect in April 2010.  Due to the Lead RRP rule’s significant economic impact on small entities, EPA is legally required to review it, within ten years of promulgation, to explore options for reducing the compliance costs (e.g., rescission or amendments – in whole or in part).  51���� and other construction partners have on this notice; the current deadline is Aug. 8.

explains that the agency will formally examine the Lead RRP rule under Section 610 of the Regulatory Flexibility Act RFA ().  Although EPA is required to review only the Lead RRP rule as finalized in 2008 (), the notice states that it will also consider comments to the 2010 () and 2011 () amendments to eliminate a provision for contractors to “opt-out” of prescribed work practices and to affirm the qualitative clearance of renovated or repaired spaces (EPA decided not to require dust wipe and clearance requirements), respectively.

The federal Lead RRP rule requires that any person performing renovation, repair, and painting activities that disturb lead-based paint in homes, child care facilities and pre-schools built before 1978 have their firm certified by EPA (or an EPA-authorized state), use certified renovators who are trained by approved training providers and follow lead-safe work practices, among other things.  NOTE: More than a dozen states have received EPA approval to carry out their own programs in lieu of the federal program – . 

As part of EPA’s so-called “Section 610 Review,” it will consider and solicit comments on the following factors:  1) The continued need for the rule; 2) the nature of complaints or comments received concerning the rule; 3) the complexity of the rule; 4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal, State, or local government rules; and 5) the degree to which the technology, economic conditions or other factors have changed in the area affected by the rule. This review will also serve as an additional opportunity to provide comments on lead test kits, field testing alternatives and other broader Lead RRP rule concerns. 

51���� Efforts

As stated above, EPA initiated this Section 610 Review in order to determine if the provisions of a rule that are related to small entities should be continued without change, rescinded, or amended to minimize adverse economic impacts on small entities.  51���� joined with several industry partners to to solicit feedback from industry and provide meaningful input. EPA has yet to respond to industry’s request to extend the comment deadline beyond August 8.

Some of the most contentious aspects of the Lead RRP rule that 51���� remains focused on include:

• The lack of an accurate lead test kit and the frequent false positives have lead to millions of dollars in extra compliance costs for contractors. According to EPA’s own data, “approved” test kits for the Lead RRP rule have a failure rate of between 22.5 percent and 84 percent. 
• The eight-hour initial training course and the required re-certification (refresher four-hour training) every five years have proven to be burdensome and expensive for many contractors, even with the 51����-supported cost-saving reforms finalized in January 2016 that now allows for online training in most states.
• The apparent overlap with OSHA’s Lead in Construction Standard (Title 29 Code of Federal Regulations Section 1926.62), which is more protective and more comprehensive than EPA’s Lead RRP rule. 

The promulgation of the 2008 Lead RRP rule involved a Small Business Advocacy Review (SBAR) Panel – to access that information.

To submit comments or access materials related to EPA’s Section 610 Review, visit the online docket at (Docket ID EPA-HQ-OPPT-2016-0126).  If you have questions, please contact 51����’s Leah Pilconis at pilconisl@agc.org.