But the state Department of Environment and Conservation (DEC) was not sure that these activities could be legally conducted by some contractors.
DEC was specifically concerned that EPA’s 2008 Renovation, Repair, and Paining (RRP) rule would prohibit emergency response action unless it was conducted in accordance with the RRP rule. The rule, which took full effect about one week before the Tennessee flooding occurred, requires that contractors performing renovation, repair, and painting projects that disturb paint surfaces in homes and child-occupied facilities built before 1978 be certified and follow lead-safe practices.
Many contractors intending to provide the needed work were not certified. The rule does indeed contain an exemption from requirements when emergencies occur. But since this was the first instance that triggered the exemption, EPA wrote quickly to DEC to provide further guidance.
The RRP rule’s emergency exemption at 40 CFR 745.82(b) states, somewhat ambiguously, that “the information distribution requirements in section 745.84 do not apply to emergency renovations, which are renovation activities that were not planned but result from a sudden, unexpected event (such as non-routine failures of equipment) that, if not immediately attended to, presents a safety or public health hazard, or threatens equipment and/or property with significant damage.”
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Finding no mention in the exemption language of how the exemption applies when natural disasters strike, DEC was justifiably worried that massive noncompliance with RRP rule was a possibility as the population recovered from flooding.
In a May 13, 2010, letter, Kenneth R. Lapierre, Acting Director of the Air, Pesticides, and Toxic Management Division of EPA’s Atlanta office, stated that EPA believed the scope and magnitude of the flooding presented a situation where the emergency exemption is likely to apply. Lapierre elaborates:
“Specifically, when structures are significantly impacted by flood waters, there is a need to quickly remove wet construction and home debris from the structure. This ensures that the main structure can adequately dry, which will avoid warping of structural components and other public health impacts such as the growth of mold.
EPA believes that indicators of significant impacts from flood waters include housing constructed before 1978 (with some exceptions for zero-bedroom dwellings and housing for the elderly) and child-occupied facilities significantly impacted by the floods. In this case, significantly impacted means flooding to the extent that there is evidence of water flooding the entire structure or an appreciable amount of water damage visible on walls.”
In such cases, says EPA, the exemption would apply provided action is taken as soon as practicable after the water recedes in a structure. In the context of the Tennessee flooding, Lapierre said that EPA anticipated that this time period would extend from May 2, 2010 through June 30, 2010. “For housing significantly impacted by the floods, renovation activities that disturb painted surfaces during this timeframe would generally be exempt from the information distribution requirements as well as, to the extent necessary, the training and certification requirements of the rule.”
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The exact timeframe for the Tennessee exemption probably relates both to the extent of the flooding and the fact that the RRP had become fully effective very recently. EPA was willing to accept that a large number of contractors would not yet be properly certified. But the Agency’s willingness to make generous time concessions has likely diminished.
Since the RRP has now been fully effective for over two years, the Agency probably believes that all contractors who engage in RRP of covered structures should be certified. Since catastrophes such as the Tennessee flooding may require the services of contractors who would normally not engage in RRP-covered activities, the exemption will likely remain an important provision of the rule. But how EPA decides to apply the exemption may very well become incident-specific.
EPA adds that once the portion of the RRP rule addressing the source of the emergency is completed, the remaining activities are subject to all requirements of the RRP rule. Specifically, firms are not exempt from the RRP’s rule requirements related to cleaning, cleaning verification, and recordkeeping.