EPA Withdraws Significant Portion of Storm Water Regulations in Court Case

Posted on August 23, 2010 by Timothy R. Hughes

broken silt fenceThe US EPA was forced to withdraw a portion of its proposed storm water management regulations in the context of a pending court challenge by the National Association of Homebuilders (NAHB) and other parties.  In the pending appeal to the United States Court of Appeals for the Seventh Circuit, the EPA filed an unopposed motion to vacate part of its final rule regarding "Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category".

The rule proposed to establish a numeric effluent limitation on pollutants from construction and development.  The rule limited turbidity to an average daily level of 280 "nephelometric turbidity units" (NTUs).  EPA concedes in its motion that, "[T]he Agency has concluded that it improperly interpreted the data and, as a result, the calculations in the existing administrative record are no longer adequate to support ..." the rule.

While we are not in a technical position to evaluate engineering and cost impacts of these regulations, NAHB has quoted, and ABC has supported, an estimate of up to $10 billion in cost annually to meet the overall national regulations as proposed by EPA.  We just commented on the regulations generally last week and we believe this is a very significant issue for the construction and development industry.  Ann Cosby at Sand Anderson's Environmental Law blog has a nice summary post of the negotiations in Virginia over sediment limits for the Chesapeake Bay Watershed.

By agreement, the motion requested that the case be held in abeyance for 18 months until February 15, 2012, to allow EPA to address the flaw.  It will be quite interested to see whether the partial retreat by EPA sets off a chain reaction of challenges or delays in other aspects of the pending regulations.

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Lead Paint Regulations Changing: Owner Exception Going Away, Commercial Structures Coming Soon??

Posted on April 30, 2010 by Timothy R. Hughes

Bug eyedThe EPA's new lead regulations officially went into effect on April 22.  As expected, EPA has promptly issued notice that it intends to change the regulations to remove the "opt out" provision.  The opt-out created an exemption from the regulations where a home owner certified that no child under 6 or pregnant woman occupied the home and that the home was not a child-occupied facility.  The new change will take effect 60 days after publication in the Federal Register.

The removal of the opt out provision was expected and followed a litigation challenge from various advocacy groups.  That litigation resulted in a consent settlement with EPA whereby EPA committed to propose several changes including removal of the opt-out provision.

The bigger news may be that EPA also announced its "intention to regulate the renovation, repair, and painting of public and commercial buildings[.]"   Hopefully the next wave of this roll-out will be less chaotic than the first but the track record thus far is not promising.

A special thanks for our friend Sean Lintow of SLS Construction.  Sean knows this issue inside and out and his blog has tremendous detailed technical information for those looking to delve deeper into the regulations.

Earlier posts:

Lead Paint Regulations April 22: Are You Ready?  Is Anyone??

Renovators Beware: Lead Paint Regulations Change in April

Image by endora57

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Lead Paint Regulations April 22: Are You Ready? Is Anyone??

Posted on March 12, 2010 by Timothy R. Hughes

lead paintThe next wave of the EPA's lead paint regulations take effect on April 22.  These regulations will impose new training, certification, work practice and record keeping requirements on contractors performing renovations on structures built prior to 1978.

Reports that we are hearing indicate that the EPA's roll-out of the program has been less than clear.  Some people have struggled to find sufficient openings or available training classes.  Our friend Sean Lintow (@slsconstruction on twitter) reports that in some states, the state governments are taking over the certification process with EPA's blessing, throwing the validity of currently issued certifications into question.

A number of people have asked me specific, important questions which I would like to give my take on, which can be viewed below the break: 

I would also invite our readers to chime in because this is uncharted territory here so feel free to debate if you think my take is wrong!

  1. Do the regulations apply to projects that are underway?  Yes -  I see no exception or grandfathering in the regulations for existing projects.  745.81 provides that no firm may perform or offer to perform renovations without a certification.
  2. Can I simply use certified subcontractors as a general contractor? No - 745.80(b) requires that firms performing renovations be certified, and the renovation definition is very broad.  You may be able to delegate some of the specific on-site responsibilities to another certified renovator, but it looks to me like all the general contractors require the certification.
  3. What is the testing exception?  You can demonstrate through testing that the structure is free of paint over specific lead concentration levels (745.82).
  4. What about the owner's residence?  The training requirements (745.90) and work practice standards (745.85) do not apply to renovation of the owner's residence where it is not a child-occupied facility, no pregnant woman lives there, and the owner signs off that the firm will not be required to follow the work practices.  This exception does not appear to remove the certification requirements under 745.89, so arguably general contractors on these projects still need certification.
  5. How should I be handling documentation of renovations?  You need to follow the record keeping requirements of 745.86 for 3 years.  These include documentation of all required tests, notices and acknowledgments.  For the work itself, you need to document compliance with the work practices, assignment of a certified renovator to the project, provision of required training to workers, and post-renovation cleaning.

All of this is coming in the next several weeks and contractors absolutely must take this regulation very seriously.  I would recommend several steps, by no means exhaustive:

  1. Establish a checklist for verifying the construction date of every structure you are renovating.
  2. For structures built prior to 1978, create a check-list of all required notices, documents, acknowledgments and steps (SLS has a good general timeline to start from).
  3. Update your contracts and subcontracts accordingly to establish certification requirements, disclosure requirements, and clear indemnification provisions where appropriate to address lead paint and regulatory compliance.
  4. Ensure internal compliance with training requirements for the job, namely that the certified renovator provides training for all personnel working on the job and proper procedures.
  5. Document, preferably photographically, compliance with all work standards.  For example, take pictures of the required containment and sealing of vents.  Keep the pictures!
  6. If you have not signed up for classes or certification, do so immediately!  The EPA has 90 days to process, so you run the risk of having a lag time after the regulations take effect April 22.

More info:

Renovators Beware: Lead Paint Regulations Change in April 

EPA Lead Paint Regulations

 
 
Image by wayneandwax

 
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Va. Stormwater Regulations: Suspended or Killed?

Posted on February 4, 2010 by Timothy R. Hughes

Football PuntAfter much back and forth, the Soil and Water Conservation Board announced on January 14th that they voted to suspend their hotly debated changes to stormwater regulations to permit an additional 30-day comment period.  The stage was formally suspended on January 26, 2010 which means that the status will be stuck in suspension until a new round of comments opens from February 15 through March 17.

We reported on the both the initial regulations and later changes to the proposed regulations which eased some of their impacts on the home building industry.  The Home Builders Association of Virginia indicates that they mobilized significant response and opposition to even the later round of regulations.

In addition to the underlying technical tug-of-war, there are two interesting political subtexts which may sweep this issue off the table.  First, in the intervening time since the regulations were first proposed, the Republican former Attorney General, Bob McDonnell, has won the Governor's race, Governor Tim Kaine has left office,  and Governor McDonnell has been sworn in.  The impact of the new Governor on these regulations is unknown at this point, but the suspension may be a significant indicator of future direction.

The import of state regulation may be swept away by federal intervention.  The US Environmental Protection Agency has sought comments and then transmitted a second notice on specific stormwater management regulations.  Chesapeake Bay run-off continues to generate active press and political reaction, so the states may ultimately be preempted by federal action in this arena.

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Renovators Beware: Lead Paint Regulations Change in April

Posted on January 22, 2010 by Timothy R. Hughes

EPA Renovate Right Brochure

Owners, developers and builders working in the renovation arena beware: the EPA's new regulations on lead paint take effect on April 22, 2010.  The regulations are contained at Title 40, Part 745 of the Code of Federal Regulations.  There are some very important highlights:

Effective April 21, no firm may offer or perform renovations in "target housing" without certification (40 CFR 745.81). Target housing means any housing constructed prior to 1978, so renovators working in homes, apartments or condominiums built prior to 1978 need to take this seriously.

There are only very limited exceptions, such as where a certified inspector has determined the project is free of lead paint beyond permitted levels (40 CFR 745.82). Projects with no children or pregnant woman that are owner occupied can also qualify for excluding coverage, but only if the owner signs off that the firm is not required to meet the regulatory practices (40 CFR 745.82).

  • Firm's performing renovations have extensive obligations to give disclosure and notice to building occupants in writing prior to renovation, including providing mandating EPA publications (40 CFR 745.84)
  • The regulations further include specific work practice standards, so watch out for potential employee personal injury claims and OSHA inspections and violations as well (40 CFR 745.85)
  • Even relatively minor work is swept up in the requirements: generally work disrupting more than 6 square feet of painted area is regulated (40 CFR 745.80, 745.83)
  • Persons and firms performing work in this arena must provide their customers the EPA's brochure, Renovate Right (40 CFR 745.81)(please note: the publication requirement is already in effect, so if you are not doing that now, you need to start immediately!).

On a final note, there is an entire training and certification regime established by the EPA.  In a down economy, this may be a good area to jump in and develop expertise and a market niche.

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