[Regulatory Update] Surprise! You might have to comply

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The EPA’s Lead Safety for Renovation, Repair and Painting Rule might snag pest control companies performing pest control services.

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February 28, 2011

The U.S. federal government, through the Environmental Protection Agency (EPA) and the Department of Housing and Urban Development (HUD), has long been interested in protecting residents from the hazards of lead. They are especially concerned about lead in paint or stains that still remain on many buildings.

Effective last year, extensive rules went into effect for any company that is involved in renovation, repair and painting. This rule can affect the structural pest management industry either when having to open walls for treatment or when repairing damage caused by pests. Companies in the add-on renovation business should also pay close attention. The concern is that lead paint, when disturbed, can cause particulates of lead in the air, which may then be breathed. The most susceptible groups to health effects from lead are children younger than 6 years of age and pregnant women.

EPA estimates that just fewer than a million children have abnormally high levels of lead in their blood as a result of exposure to lead hazards. According to EPA, these elevated levels can precipitate "lower intelligence, learning disabilities and behavior issues."

The Renovation, Repair and Painting Rule (RRP Rule), with a compliance deadline of April 22, 2010, covers any industry that disturbs lead-based paints in "target housing and child-occupied facilities." The rules are extensive and several states have petitioned the EPA (and have been granted authority) to administer their own programs that are more stringent that the EPA’s. As of January 2011, these states included: Wisconsin, Iowa, North Carolina, Mississippi, Kansas, Rhode Island, Utah, Oregon, Massachusetts and Alabama. If operating in these states, it is best to check the state lead control website. The remaining states and territories are subject to the EPA RRP. HUD has more stringent rules for its housing.

Scope of the Requirements. Companies that may disturb lead-based paint, either via renovations, repairs or painting activities, must comply. The type of work performed is not relevant; the trigger is whether lead-based paint might be disturbed. If so, there are special requirements that must be met to ensure the safety of the occupants and the workers. Companies are exempt from compliance on any jobsite if:

1. There is no lead in the paint (proof must be provided)

2. Minor repairs are on lead-based painted areas which cover:

a. Interior work disturbing less than 6 square feet of lead paint per room over a 30-day period.

b. Exterior work disturbing less than 20 square feet of painted surfaces over a 30-day period.

c. Emergency repairs, which are defined as repairs due to immediate safety threats which were not planned, or remediation due to elevated lead levels in a resident child.


Up to July 2010, owners of properties could opt-out of the program if there were no children under 6 or pregnant women present. This provision has been removed.

Companies that work on properties covered by the requirements must be Certified Firms using Certified Renovators and other workers trained by a Certified Renovator. Note that "certification" in this article is not in any way related to state pesticide agency certification. In order to become a Certified Firm, a company must submit an application and pay a fee that will cover the company for a five-year period. In order to become a Certified Renovator, individuals must attend an eight-hour course provided by an EPA-accredited training company approved by EPA under this rule and pass an exam.

Company Responsibilities. Keep in mind a pest control company that doesn’t perform remodeling work or renovations might be covered. Just performing termite jobs or a repair related to wildlife, for example, can put industry companies under this rule. Any pest control companies performing covered work must be designated a Certified Firm (fees start at about $300) and are responsible for overall compliance. Companies must ensure that each covered job complies with the rule and that all renovation personnel are Certified Renovators or have been trained on the job by a Certified Renovator. Each job must have a Certified Renovator in charge.

The Certified Firm also must provide specified educational materials to the customer prior to the start of the job and verification of delivery is required for records. Further, records of all lead tests conducted and employee training must be retained. When a Certified Renovator "clears" a job that proper cleaning was done on a covered jobsite, records of this too must be retained.

Certified Renovator Requirements. The Certified Renovator must perform the work onsite or provide on-the-job training to those working who are not Certified Renovators, as well as retain a copy of initial and any refresher training certificates onsite. In addition, the Certified Renovator must use EPA-accepted lead test kits for lead testing. They also must be onsite for posting signs, performing containment work, and cleaning after the job is completed and make sure that dust is contained while work is being done. There are companies that provide containment tools to make containment easier, such as ZipWall at www.zipwall.com.

If offsite, the Certified Renovator must be available by phone while work is being done. When the job is complete, the Certified Renovator must oversee the cleaning and perform cleaning verification via wipes compared to a cleaning verification card. Finally, the Certified Renovator must prepare and maintain EPA-required records, including what was done on the job and verification of cleaning.

Take the Requirements Seriously. Noncompliance can lead to federal penalties of suspension of the certification of the firm. A civil penalty may be levied up to $32,500 per violation. For firms that violate the rules in a manner considered knowingly or willfully, EPA can levy a fine of up to $65,000 per violation and imprison the persons responsible for the violations. States also may have a penalty scheme more stringent than the federal standards.

This rule must be taken seriously by anyone performing work which puts the job under the rule. This article is a quick summary of the rules. Company owners and managers should familiarize themselves with the rules in detail. EPA has additional information on their website at www.epa.gov and search "RRP."

The author is a technical services director with Orkin (www.orkin.com) and has more than 30 years of varied pest management experience. Find more on Facebook at www.facebook.com/OrkinPestControl or join the conversation at www.twitter.com/AskTheOrkinMan.
 

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Pesticide Use Restrictions

Will controversial endangered species litigation in California ultimately limit the industry’s product options?


ast summer, the U.S. District Court for the Northern District of California approved an Order and Stipulated Injunction restricting the use of 75 pesticides in eight San Francisco Bay area counties to protect 11 federally listed threatened or endangered species. As a PMP doing business in the Midwest or Southeast, why should you care about a little-known district court action in faraway California? Among the restricted pesticides listed in the Order are some of the industry’s most widely used rodenticides and termiticides.

The use restrictions for each active ingredient outlined in the Stipulated Injunction, including "no-use buffer zones" within certain geographic areas in the eight counties, will stay in place until EPA completes its review and any necessary consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service regarding the potential effects of the active ingredient on the subject species, according to a guidance document from the National Pest Management Association (NPMA) and Pest Control Operators of California (PCOC).

"The NPMA and PCOC expressed concerns about some of the restrictions included in the original proposal EPA issued for public comment last summer," the guidance document stated. "Some of the use restrictions outlined in the Stipulated Injunction adopted by the court, including the use of rodenticides and termiticides and public health vector control programs are greatly relaxed from the restrictions that were originally proposed.

"The use restrictions are now in effect and will remain in effect until further order of the court," according to the guidance document.

To learn more or download a copy of the complete guidance document visit, www.pctonline.com/guidancedocument. PCT magazine recently asked Bob Rosenberg, NPMA senior vice president, to share his thoughts about the potential implications of this court action. Excerpts of that interview appear below:


PCT: Why did NPMA and PCOC decide to distribute a Guidance Document on this topic to the pest management industry?

Rosenberg: The NPMA/PCOC guidance document is intended to make it relatively easy for PCOs to understand a very technical, highly legalistic 54-page court document. Appended below, for example, is a typical passage:

San Joaquin Kit Fox

EPA’s authorization of any use of Acephate, Aldicarb, Aluminum phosphide, Azinphosmethyl, Brodifacoum, Bromadiolone, Carbofuran, Chlorophacinone, Chlorpyrifos, Difenacoum, Difethialone, Diphacinone, Endosulfan, Magnesium phosphide, Naled, Phorate, Potassium nitrate, Sodium cyanide, Sodium nitrate, Strychnine, and Trufuralin is hereby ENJOINED, VACATED, and SET ASIDE in all areas within 600 feet of the habitat described below if applied by ground or air.

Applicable Habitat

For the San Joaquin kit fox, "habitat" means all denning areas, defined as the 100 foot circular radius around the set of holes in the ground forming the surface of the den, as depicted in the Department of Pesticide Regulation Endangered Species Project, San Joaquin kit fox, denning characteristics, attached hereto as Attachment B, but only to the extent that any such ecological features are found within the eight counties specifically identified in the Complaint (and in this Stipulated Injunction) in the following sections of California: M01N01E01, M01N01E02, M01N01E03, M01N01E04, M01N01E05, M01N01E34, M01N01E35, M01S01E02, M01S01E03, M01S01W25, M01S01W36, M01S02E16, M01S02E17, M01S02E21, M01S03E03, M01S03E04, M01S03E09, M01S03E10, M01S03E15, M01S03E16, M01S03E19, M01S03E21, M01S03E22, M01S03E23, M01S03E31, M01S03E32, M01S03E33, M01S03E35, M01S03E36, M01S04E31, M02N01E28, M02N01E32, M02N01E33, M02N01E35, M02N01E36, M02S01W01, M02S03E02, M02S03E03, M02S03E04, M02S03E05, M02S03E07, M02S03E10, M02S03E11, M02S04E07, M02S04E32, M03S03E04, M03S03E05, M03S04E06, M04S01E07, M04S01E18, M10S06E21, M10S06E22, M10S06E27, M10S06E28.


PCT: How do current use restrictions on pesticides used by PMPs compare to those that were originally outlined when this issue first arose?

Rosenberg: The original draft stipulated injunction posed two kinds of problems for PMPs; restrictions on certain uses would have made it difficult or impossible to do pest control. Secondly, understanding how to identify the relevant habitats where the restrictions were in place would be difficult. The original, for example, would have significantly restricted the use of imidacloprid, fipronil and most of the rodenticides, fumigants and pyrethroids typically used by PCOs, making it difficult to perform termite or rodent control. EPA has corrected this by creating exceptions for termite control, rodent control adjacent to structures, indoor applications and public health vector control applications. To address the compliance difficulty, EPA has created a fairly user-friendly, on-line mapping capability for applicators and has met with NPMA and California PCOs a number of times to further improve their mapping.


PCT: Have the NPMA and PCOC engaged product suppliers in defending the industry‘s interests? If so how?

Rosenberg: The joint NPMA/PCOC work group that handled this issue involved the associations, PCOs, attorneys, and product manufacturers, formulators and distributors. Many of the suppliers are also represented by RISE (Responsible Industry for a Sound Environment), which intervened in the case.


PCT: Why should PMPs outside of California care about this case?

Rosenberg: PMPs in every state should be concerned. The legal theory of this and other cases is an allegation by the plaintiffs that EPA has failed to properly implement the Endangered Species Act. In almost every case, the courts have sided with the activist groups, since they are technically correct. That doesn’t mean that EPA does not take into account the impact of pesticide use on endangered species when they make registration or reregistration decisions. Since the Northern California case was filed, the Center for Biological Diversity (CBD), the activist plaintiffs, have filed a suit asking the court to impose restrictions on the use of pesticides in the lower 48 states based on their impact on polar bears in Alaska. They have also filed a Notice of Intent to sue EPA and the services for failure to implement ESA with respect to 400 active ingredients that impact almost 900 endangered species, though it is unclear whether this lawsuit will be filed. If they file and prevail in this mega-suit, PMPs in every state will see limitations like the northern California case.


PCT: What can PMPs in other parts of the country do to protect the industry’s interests?

Rosenberg: NPMA has retained legal counsel in anticipation of CBD filing its mega-suit. This is an unbudgeted expense and we would greatly appreciate voluntary contributions for the Issues Defense Fund we have set up to handle this. This is a segregated fund and every penny will be used to defend the industry.


PCT: What is your "best guess" about the ultimate resolution of this case?

Rosenberg: I don’t have a very good feeling about this. One of two things has to occur for this to go away — either EPA has to complete its consultations with the Fish and Wildlife and National Marine Fisheries Services or Congress must amend the Endangered Species Act. I’m not optimistic about either outcome. The consultations have been ongoing since the passage of ESA in 1972 and will take years to complete and the likelihood of Congress acting is not good. We last asked Congress in 2006 to rectify this and were not successful.


PMPs who have additional questions about this topic should contact NPMA at 800/678-6722 or PCOC at 916/372-4363. If you would like to contribute to the NPMA’s Issues Defense Fund, contact Bob Rosenberg at 703/352-6762 or e-mail brosenberg@pestworld.org.
 

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NPMA Legislative Day
to be Held Next Month

On March 13-15, pest management professionals from across the country will converge on Capitol Hill to increase awareness among their Congressional representatives of the value of the $6 billion pest management industry in battling public health and safety issues.

With three distinct tracks, Legislative Day offers a focused educational program on key topics that impact PMPs’ business: a bed bug track, a technical track, and a sales and marketing track.

Legislative Day 2011 is being held downtown in the heart of Washington, D.C., at the Renaissance Mayflower Hotel, a national landmark and member of the Historic Hotels of America. To reserve your hotel room, call 202/347-3000.

The event is sponsored by FMC and co-sponsored by Dow AgroSciences.

If you have questions about this event, contact NPMA at 703/352-NPMA or e-mail npma@pestworld.org.