Title of Regulation: 18VAC15-30. Virginia Lead-Based Paint Activities Regulations (amending 18VAC15-30-510).

Statutory Authority: §§ 54.1-201 and 54.1-501 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: August 2, 2023.

Effective Date: September 1, 2023.

Agency Contact: Trisha L. Lindsey, Executive Director, Board for Asbestos, Lead, and Home Inspectors, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8595, FAX (866) 350-5354, or email alhi@dpor.virginia.gov.

Basis: Section 54.1-501 of the Code of Virginia enumerates the legal authority for the board to administer the licensure program for lead-based paint activities and promulgate regulations necessary to carry out the requirements of Chapter 5 (§ 54.1-500 et seq.) of the Code of Virginia.

In addition, 40 CFR Part 745, Subpart Q outlines the requirements for authorization of state programs to administer and enforce the standards, regulations, or other requirements established under the Toxic Substances Control Act of 1976 (15 USC § 2601 et seq.) and requirements for lead-based paint activities regulation are established under 40 CFR 745.325.

Purpose: The General Assembly has charged the board with the responsibility for regulating individuals and firms who engage in lead-based paint activities by requiring that such individuals and firms obtain a license in order to engage in the occupations that perform these activities. The board is also charged with establishing standards for performing lead-based paint activities consistent with the Residential Lead-based Paint Hazard Reduction Act of 1992 and U.S. Environmental Protection Agency (EPA) regulations.

Activities that disturb lead-based paint in target housing and child-occupied facilities increase the threat of lead-based paint exposure by dispersing lead particles in the air and over household items. Both adults and children can receive hazardous lead paint exposures by inhaling or ingesting lead-based paint dust. Studies have shown that lead poisoning can cause permanent damage to the brain and other organs. In children, lead poisoning can cause lower IQ levels and behavioral problems. The performing of activities that disturb lead-based paint by individuals who lack sufficient expertise or fail to employ minimum safeguards to prevent dispersal of lead particles poses a risk to the public health and welfare.

The goal of the amendments is to update the regulation to incorporate the current U.S. Department of Housing and Urban Development (HUD) guidelines that are applicable to lead-based paint activities. The amendments will make the regulation clearer to regulants by ensuring the list of documented methodologies is current and accurate and keep the regulation consistent with applicable EPA regulations.

Rationale for Using Fast-Track Rulemaking Process: The amendments are expected to be noncontroversial because the amendments are limited to incorporating by reference the edition of the HUD guidelines that are currently applicable to lead-based paint activities. The amendments do not increase existing requirements or impose new requirements on regulants and ensure that the standards in the regulation are consistent with applicable EPA regulations.

Substance: Amendments update the applicable edition of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing as it pertains to the appropriate methodologies for performing a lead-based paint inspection, lead-hazard screen, and risk assessment or abatement. The current edition of these guidelines is the Second Edition, published July 2012.

Issues: The primary advantage of the amendments to the public and the Commonwealth is that the regulation will be clearer to regulants who engage in lead-based paint activities by ensuring the list of documented methodologies is current and accurate and align the regulation with applicable EPA regulations. There are no identifiable disadvantages to either the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis: The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 19. The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Virginia Board for Asbestos, Lead, and Home Inspectors (Board) proposes to update in the regulation the edition of the U.S. Department of Housing and Urban Development (HUD) Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing that must be followed when performing a lead-based paint inspection, lead-hazard screen, risk assessment or abatement.

Background. The current regulation² states that: "E. When performing a lead-based paint inspection, lead-hazard screen, risk assessment or abatement, a licensed individual must perform that activity in compliance with documented methodologies. Documented methodologies that are appropriate for this chapter include the following:

1. U.S. Department of Housing and Urban Development (HUD) Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995 edition, including the 1997 Revision to Chapter 7: Lead-Based Paint Inspection.

"5. Any future EPA or HUD guidance that may replace the above methodologies."

The Board proposes to replace June 1995 edition, including the 1997 Revision to Chapter 7: Lead-Based Paint Inspection with Second Edition, July 2012.

Estimated Benefits and Costs. The existing and proposed regulation state that when performing a lead-based paint inspection, lead-hazard screen, risk assessment or abatement that the individual must comply with any future HUD guidance that may replace the methodologies incorporated from "June 1995 edition, including the 1997 Revision to Chapter 7: Lead-Based Paint Inspection". Thus, the proposed updating of the edition of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing in the regulation that must be followed when performing a lead-based paint inspection, lead-hazard screen, or risk assessment or abatement does not change the regulatory text. Nevertheless, the proposal may be beneficial for readers of the regulation who are not cognizant of the July 2012 edition.

Businesses and Other Entities Affected. The proposed amendments pertain to the 284 licensed lead workers, 135 licensed lead supervisors, 86 licensed lead inspectors, 157 licensed lead risk assessors, 28 licensed lead project designers, 15 licensed interim licensees (supervisors, inspectors, and risk assessors), and 59 licensed lead abatement contractors in the Commonwealth.³ All 59 licensed lead abatement contractors are small businesses.⁴

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. Since the proposal neither increases costs nor reduces revenue, no adverse impact is indicated.

Small Businesses⁶ Affected.⁷The proposal does not adversely affect small businesses.

Localities⁸ Affected.⁹ The proposal neither disproportionally affects any localities nor introduces costs for local governments.

Projected Impact on Employment. The proposal does not affect total employment.

Effects on the Use and Value of Private Property. The proposal neither affects the use and value of private property nor real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See 18VAC15-30-510: https://law.lis.virginia.gov/admincode/title18/agency15/chapter30/section510/

³Data source: Department of Professional and Occupational Regulation

⁴Ibid

⁵Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁶Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁷If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁸"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁹Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to the Economic Impact Analysis: The Virginia Board for Asbestos, Lead, and Home Inspectors concurs with the results of the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments update the appropriate methodologies for performing a lead-based paint inspection, lead-hazard screen, risk assessment, or abatement incorporated by reference into the regulation to the current Second Edition of the U.S. Department of Housing and Urban Development (HUD) Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, published July 2012.

18VAC15-30-510. General requirements.

A. This part establishes work practice standards for conducting lead-based paint activities in target housing and child-occupied facilities.

B. Notification shall be sent by the licensed lead abatement contractor to the Virginia Department of Labor and Industry prior to the commencement of any lead-based paint abatement activities. The notification shall be sent in a manner prescribed by the Virginia Department of Labor and Industry.

C. No licensed lead abatement contractor shall enter into a contract to perform a lead abatement project if the lead inspection or project design is to be performed by individuals with an employer/employee relationship with, or financial interest in, the lead abatement contractor unless the contractor provides the building owner with a "Virginia Lead Consumer Information and Disclosure Sheet," which is available from the board. Persons licensed to perform post-abatement clearance procedures shall be independent of and have no financial interest in or an employer/employee relationship with the licensed lead abatement contractor.

D. The relationships described in subsection C of this section must be disclosed, and the disclosure form must be signed and dated by the building owner, or his the building owner's agent, and the contracting entity prior to the signing of any contract to conduct lead-based paint activities. The contractor must provide the disclosure form to all parties involved in the lead abatement project. The disclosure form shall be kept on the lead abatement project site and available for review.

E. When performing a lead-based paint inspection, lead-hazard screen, risk assessment, or abatement, a licensed individual must perform that activity in compliance with documented methodologies. Documented The following documented methodologies that are appropriate for this chapter include the following are incorporated by reference:

1. U.S. Department of Housing and Urban Development (HUD) Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995 edition, including the 1997 Revision to Chapter 7: Lead-Based Paint Inspection Second Edition, July 2012.

2. 40 CFR Part 745, Subpart D (January 6, 2020, update).

3. EPA Guidance on Residential Lead-Based Paint, Lead-Contaminated Dust and Lead-Contaminated Soil (60 FR 47248-47257, September 11, 1995).

4. EPA Residential Sampling for Lead: Protocols for Dust and Soil Sampling, Final Report (EPA 747-R-95-001, March 1995).

5. Any future EPA or HUD guidance that may replace the above methodologies.

6. Regulations, guidance, methods or protocols authorized by the board.

F. Individuals conducting lead-based paint activities shall comply with the work practice standards enumerated in this chapter.

G. Any lead-based paint activities, as described in this chapter, shall be performed only by individuals licensed by the board to perform such activities.

H. All reports and plans required by 18VAC15-30-520 through 18VAC15-30-651 shall be maintained by the licensed firm or individual who prepared the report for at least three years. The licensed firm or individual also shall provide copies of these reports to the building owner or person who contracted for its services.

DOCUMENTS INCORPORATED BY REFERENCE (18VAC15-30)

Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995, including the 1997 revision to Chapter 7: Lead-Based Paint Inspection, U.S. Department of Housing and Urban Development.

Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, Second Edition, July 2012, U.S. Department of Housing and Urban Development.

EPA Guidance on Residential Lead-Based Paint, Lead-Contaminated Dust and Lead-Contaminated Soil (60 FR 47248-47257, September 11, 1995).

Residential Sampling for Lead: Protocols for Dust and Soil Sampling, Final Report (EPA 747-R-95-001, March 1995).