NARI ON THE HILL: FEBRUARY 2016
Join NARI in Its Lobbying Efforts in Washington, D.C.
NARI is coordinating a "Lobby Day on the Hill" on Wed., March 16 in Washington, D.C. All interested NARI members are invited to attend as we meet with several key legislators to discuss issues of importance to our industry, such as workforce development, taxes and regulations. In addition, those arriving on Tues., March 15 will have the opportunity to participate in an evening tour of Congress facilitated by our lobbyist, Sen. Tim Hutchinson.
Lead Renovation Repair and Painting Rule
On Feb. 17, the Environmental Protection Agency (EPA) released its final rule on revisions to the Lead Renovation, Repair, and Painting (RRP) rule, and the Lead-based
Paint (LBP) Activities rule. According to the EPA, “The revisions are intended to improve the day-to-day function of these programs by reducing burdens to industry and EPA, and by clarifying language for training providers, while retaining the protections provided by the original rules.” The new rule makes three major changes:
- First, EPA is modifying the requirement that the renovator refresher training for individuals have a hands-on component. EPA will allow renovators to take a refresher course without hands-on training once every other certification. Once a renovator takes the refresher course without the hands-on training, their next refresher training must include hands-on training. The certification from the refresher course without hands-on training will last for 3 years. Taking the course without hands-on training is optional but once a renovator takes the course, their next refresher course must include hands-on training and be taken within 3 years of their previous certification. The certification from taking a course with hands-on training will last for 5 years.
- Second, the Agency is removing jurisdiction-specific certification and accreditation requirements under the LBP Activities program in States where EPA administers the program. Previously, this program required that training providers, firms and individuals seek certification in each jurisdiction (e.g., a State) where the organization or person wanted to work. After years of implementing the LBP Activities Program, the Agency believes that separate certifications for each EPA administered State jurisdiction are not necessary. In particular, EPA does not believe it is necessary for the Agency to certify or accredit the same applicant multiple times; certification in one EPA administered State jurisdiction should be sufficient to perform work in any other EPA-administered State. Accordingly, the Agency is eliminating the requirement for separate certifications in each EPA-administered State jurisdiction in the LBP Activities Program. Regulated entities will no longer have to send an application and fees to EPA for the purpose of adding additional EPA-administered State jurisdictions to their certification or accreditation. Now when a regulated entity applies to EPA and receives certification in the LBP Activities Program, they will be able to work in any EPA-administered State.
- Third, EPA is adding clarifying language to the requirements for training providers under both the RRP and LBP Activities program. EPA is clarifying the application regulations for accredited training providers under the RRP rule and LBP Activities rule. It was brought to the Agency’s attention that the regulations did not specifically state what constituted a violation of the regulations at 40 CFR 745.225. For example, some other regulatory provisions, such as 40 CFR 745.87, specifically list various activities that are considered a violation of TSCA. Accordingly, the Agency proposed to add clarifying language explaining that training providers must follow the requirements in that section. EPA believes that accredited training providers already understand this, but EPA proposed to add the clarifying language to ensure understanding of the requirements—similar to what has been done in other regulations. This clarifying language does not change any requirements for accredited training providers.
The new rule became effective on Feb. 17, 2016.
Lead Test Kits
On Feb. 18, NARI submitted a second round of comments to EPA on Lead Test Kits. In 2008, EPA published the Lead Renovation, Repair, and Painting rule, which included criteria by which the Agency could certify a test kit that contractors could use onsite to test to for the presence of lead. Lead test kits recognized before Sept. 1, 2010, had to only meet the negative response criterion outlined in the regulation, while those recognized after Sept. 1, 2010 had to meet both the negative and positive criterion. The problem has been that there is no technology available that would meet both criterions. There are only two EPA-recognized lead test kits commercial available and they only meet the negative test criterion. After five years of the RRP program, Congress directed EPA to go back and look at this issue. Specifically, the EPA was instructed to “identify solutions that would allow for a test kit to meet the criteria within the 2008 rule to reduce costs for consumers, remodelers and families to comply with the rule. If no solution is reached by the end of the fiscal year, EPA should revisit the test kit criteria in the 2008 rule and solicit public comment on alternatives.”
Last year, EPA began soliciting input from the public and interested stakeholders. NARI submitted comments in 2015 and the agency came back, again, this year asking for additional public input. EPA was specifically interested in comments on:
1) Eliminating the positive response criterion for lead test kits.
2) Modify the positive response criterion.
3) Maintaining the status quo of current positive and negative criterion.
4) Reducing RRP certification training requirements for XRF technicians.
5) Exploring any other lead-based paint field testing technology.
Since no technology exists that could adequately measure the positive response criterion, NARI recommended eliminating this requirement. NARI also recommended that EPA look at reducing the RRP certification training requirements for XRF technicians. XRF testing is one of the viable options to the use of lead test kits. However, this type of testing is generally more expensive and smaller operations are not always able to absorb the cost. If the certification requirements were to be reduced, it may help to make the testing more affordable and, thereby, more available to a larger percentage of remodelers and the families they serve. NARI would monitor any proposed EPA changes to help ensure that there is no negative impact on the quality of the work performed by XRF technicians. Finally NARI encouraged EPA to support efforts to continue research on other lead-based paint field testing technology. Technology is constantly evolving and EPA should be open to looking for new alternatives. The Agency can support these efforts through (a) monetary support for specific research and; (b) through flexible programmatic and regulatory guidelines that would allow for new technology to be tested and implemented as quickly as possible.
In Dec. 2015, the Occupational Safety and Health Administration (OSHA) sent its final proposed silica rule over to the Office of Information and Regulatory Affairs (OIRA) in the White House (Office of Management and Budget/OMB) for review. It is the job of OIRA to review the costs and benefits of the rule and determine if the rule fits the Administration's regulatory priorities. During this final review process the construction industry will have one last opportunity to impact the rule before it is finalized. Numerous members of the Construction Industry Safety Coalition (CISC), of which NARI is a member, have been going in to meet with OIRA. The message being given to the White House is that we all support regulations that protect the health of employees and clients. However, the Silica Rule, as proposed by OSHA, is neither technologically nor economically feasible. The CISC is asking OIRA and OSHA to go back and rework the proposal.
In addition to working with the White House and OSHA, on Feb. 18 NARI’s Washington lobbyist joined with a number of CISC members in meeting with the majority staff of the House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies. This is the subcommittee that provides funding for OSHA. Last year CISC members worked to get compromise language by Senator Hoeven into the Senate Labor, HHS appropriations bill but the language was ultimately stripped out of the omnibus funding bill that passed Congress in December. The Hoeven language was a good compromise. It did not prevent OSHA from undertaking the silica rule but instead required the agency to answer a number of questions before moving forward.
Now with the final silica rule at the White House, CISC members wanted to know if Subcommittee Chairman Tom Cole of Oklahoma would support similar compromise language in this year’s House of Representatives OSHA funding bill. Unfortunately, staff indicated that the Chairman was not inclined to fight for Hoeven language. That means that the construction industry community is going to have to weigh in with Congress and let Senators and Representatives know how important this issue is to their constituents. Next month on March 16 there will be a Fly-In for NARI members to come to the nation’s capital and talk with their representatives. The Silica Rule is going to be one of the top issues for discussion. NARI members are encouraged to take this opportunity to come to Washington, DC, get involved and make a difference.