Title of Regulation: 16VAC25-35. Regulation Concerning Certified Lead Contractors Notification, Lead Project Permits and Permit Fees (amending 16VAC25-35-30).

Statutory Authority: § 40.1-22 of the Code of Virginia.

Public Hearing Information:

December 5, 2013 - 10 a.m. - State Corporation Commission, Tyler Building, Court Room A, 1300 East Main Street, Richmond, VA 23219

Public Comment Deadline: January 17, 2014.

Agency Contact: John J. Crisanti, Planning and Evaluation Manager, Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.

Basis: The Safety and Health Codes Board is authorized by § 40.1-22 of the Code of Virginia to: "…adopt, alter, amend or repeal rules and regulations to further, protect and promote the safety and health of employees in places of employment over which it has jurisdiction and to effect compliance with the federal OSH Act of 1970…as may be necessary to carry out its functions established under this title." In making such rules and regulations to protect the occupational safety and health of employees, the board is required to adopt the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence that no employee will suffer material impairment of health or functional capacity.

Section 40.1-51.20 of the Code of Virginia mandates that all certified lead contractors notify the Department of Labor and Industry prior to commencement of each lead abatement project for which certification is required by the Department of Professional and Occupational Regulation. The contractor must also obtain a lead permit and pay the appropriate fee in accordance with this code section. This regulation establishes the notification requirements and provides that the Department of Labor and Industry conduct on-site inspections of each certified lead contractor's actual abatement projects. This regulation does not exceed the mandate required by § 40.1-51.20.

Purpose: Currently, subsection A of 16VAC25-35-30, Notification and Permit Fee, requires that lead contractors notify the Department of Labor and Industry for lead abatement projects when the contract price is $2,000 or more. The U.S. Environmental Protection Agency (EPA) has notification requirements with which the department must comply. EPA has no price amount stipulated in its notification regulations. Therefore, the basis for this proposed regulatory action is to conform the requirements of subsection A of 16VAC25-35-30 with that of EPA's Notification Requirements for Lead-Based Paint Abatement Activities and Training, 40 CFR 745.227(e)(4)(i)-(ix). Notification to the department protects the health, welfare, and safety of the public.

Substance: The lead notification requirements in subsection A of 16VAC25-35-30 currently stipulate that lead contractors notify the department for lead abatement projects when the contract price is $2,000 or more. EPA also has notification requirements with which the department is obligated to comply. EPA has no price amount stipulated with respect to its notification requirements; therefore, the department seeks to remove the $2,000 minimum contract price provision requiring lead abatement notification for all lead projects, regardless of the contract price for the lead project.

Issues: The primary advantages of implementing the amended provisions to the public is that the $2,000 minimum contract price provision required for lead abatement notification will be removed for consistency with the notification requirements of EPA. However, since there will no longer be a contractor price threshold of $2,000, lead contractors will be required to submit more notification permit applications, which will, in turn, increase the overall costs of lead permit fees that contractors need to pay in order to get their lead abatement permit.

The primary advantages and disadvantages to the agency or the Commonwealth is that the department will incur no added costs nor will staffing levels require an increase as a result of the rule change. Any additional revenue received will be deposited in the Lead Program Special Fund.

There are no disadvantages to the public or to the Commonwealth.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Safety and Health Codes Board (Board) proposes to amend its regulations that govern certified lead contractor notification, lead project permits and permit fees to require that the Department of Labor and Industry (DOLI) receive notification of all lead projects commenced in the Commonwealth rather than only projects where the contract price exceeds $2,000.

Result of Analysis. There is insufficient information to ascertain whether benefits outweigh costs for this proposed regulatory change.

Estimated Economic Impact. Currently, lead contractors who engage in lead abatement projects where contractual payments exceed $2,000 must notify the Department of Labor and Industry (DOLI). The U.S Environmental Protection Agency (EPA), however, requires notification for all lead abatement projects without regard to contract price. Although the EPA has not demanded that DOLI change its regulations so that DOLI is notified of all lead abatement projects, DOLI does have an obligation to comply with federal standards. As a consequence, the Board now proposes to amend these regulations so that they conform to the EPA's regulations. This regulatory amendment will require lead contractors to notify DOLI of all lead abatement projects and not just those with a contract price of more than $2,000. The required notification must include 1) identifying information for all individuals who will be working on the project, 2) identifying information for the owner or operator of the building from which lead will be removed, 3) the type of notification that is being made, 4) identifying information for the building which is to undergo lead abatement, 5) the estimated amount of lead to be removed and how that amount was estimated, 6) the fee to be submitted to DOLI, 7) scheduled setup date, removal date or dates and completion date and times during which lead abatement activities will take place, 8) name and certificate number of the on-site supervisor for the project, 9) identifying information for the waste disposal site where lead containing materials will be disposed of, 10) a detailed description of the methods to be used to remove lead materials and 11) a description of procedures and equipment used to control the emission of lead-contaminated dust, to contain or encapsulate lead-based paint and replace lead painted surfaces.

Board staff reports that they do not know how many extra projects will be reported per year on account of this regulatory change but suspect that most, if not all, lead abatement projects presently cost more than $2,000. Board staff further reports that they currently receive an average of four notifications per year for lead abatement projects. Any lead contractors affected by this proposed regulatory change will incur costs for compiling the information required in notifications to DOLI.

Businesses and Entities Affected. Board staff reports that there are 142 lead contractors in the Commonwealth and that most lead contractors are small businesses. All of these individuals, plus owners of properties that may have lead contamination on premises, will likely be affected by this proposed regulatory change.

Localities Particularly Affected. No localities will be particularly affected by these proposed regulations.

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

Effects on the Use and Value of Private Property. Affected businesses may incur additional reporting costs on account of this regulatory change only if they contract for lead abatement projects worth $2,000 or less. To the extent that any business does have to compile information for additional notifications, profits for those businesses will likely see a very small decrease that is equal to the cost of compiling information and conveying it to DOLI.

Small Businesses: Costs and Other Effects. Affected small businesses may incur additional reporting costs on account of this regulatory change only if they contract for lead abatement projects worth $2,000 or less.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are likely no alternative methods that would both further minimize any adverse impact and meet EPA standards.

Real Estate Development Costs. This regulatory action may slightly increase real estate development costs in the Commonwealth only for real estate development projects which include a lead abatement contract worth $2,000 or less.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Labor and Industry concurs with the economic impact analysis.

Summary:

The proposed amendment requires a lead contractor to file a written lead project notification with the Department of Labor and Industry for all lead projects, rather than only projects where the contract price is $2,000 or more.

16VAC25-35-30. Notification and permit fee.

A. Written notification of any lead project, the contract price of which is $2,000 or more, shall be made to the department on a department form. Such notification shall be sent by facsimile transmission as set out in subsection J of this section, by certified mail, or hand-delivered to the department. Notification shall be postmarked or made at least 20 days before the beginning of any lead project.

B. The department form shall include the following information:

1. Name, address, telephone number, and the certification number of each person intending to engage in a lead project.

2. Name, address, and telephone number of the owner or operator of the facility in which the lead project is to take place.

3. Type of notification: amended, emergency, renovation or demolition.

4. Description of facility in which the lead project is to take place, including address, size, and number of floors.

5. Estimate of amount of lead and method of estimation.

6. Amount of the lead project fee submitted.

7. Scheduled setup date, removal date or dates, and completion date and times during which lead-related activity will take place.

8. Name and license number of the supervisor on site.

9. Name, address, telephone number, contact person, and landfill permit number of the waste disposal site or sites where the lead-containing material will be disposed.

10. Detailed description of the methods to be used in performing the lead project.

11. Procedures and equipment used to control the emission of lead-contaminated dust, to contain or encapsulate lead-based paint, and to replace lead-painted surfaces or fixtures in order to protect public health during performance of the lead project.

12. If a facsimile transmission is to be made pursuant to subsection J of this section, the credit card number, expiration date, and signature of cardholder.

13. Any other information requested on the department form.

C. A lead project permit fee shall be submitted with the completed project notification form. The fee shall be in accordance with the following schedule:

1. The greater of $100 or 1.0% of the contract price, with a maximum of $500.

2. If, at any time, the Commissioner of Labor and Industry determines that projected revenues from lead project permit fees may exceed projected administrative expenses related to the lead program by at least 10%, the commissioner may reduce the minimum and maximum fees and contract price percentage set forth in subdivision 1 of this subsection.

D. A blanket notification, valid for a period of one year, may be granted to a contractor who enters into a contract for a lead project on a specific site which is expected to last for one year or longer.

1. The contractor shall submit the notification required in subsection A of this section to the department at least 20 days prior to the start of the requested blanket notification period. The notification submitted shall contain the following additional information:

a. The dates of work required by subdivision B 7 of this section shall be every work day during the blanket notification period, excluding weekends and state holidays.

b. The estimate of lead to be removed required under subdivision B 5 of this section shall be signed by the owner and the owner's signature authenticated by a notary.

c. A copy of the contract shall be submitted with the notification.

2. The lead project permit fee for blanket notifications shall be as set forth in subsection C of this section.

3. The contractor shall submit an amended notification at least one day prior to each time the contractor will not be present at the site. The fee for each amended notification will be $15.

4. Cancellation of a blanket notification may be made at any time by submitting a notarized notice of cancellation signed by the owner. The notice of cancellation must include the actual amount of lead removed and the actual amount of payments made under the contract. The refund shall be the difference between the original lead permit fee paid and 1.0% of the actual amount of payments made under the contract.

E. Notification of fewer than 20 days may be allowed in case of an emergency involving protection of life, health or property. In such cases, notification and the lead permit fee shall be submitted within five working days after the start of the emergency lead project. A description of the emergency situation shall be included when filing an emergency notification.

F. A notification shall not be effective unless a complete form is submitted and the proper permit fee is enclosed with the completed form. A notification made by facsimile transmission pursuant to subsection J of this section shall not be effective if the accompanying credit card payment is not approved.

G. On the basis of the information submitted in the lead notification, the department shall issue a permit to the contractor within seven working days of the receipt of a completed notification form and permit fee.

1. The permit shall be effective for the dates entered on the notification.

2. The permit or a copy of the permit shall be kept on site during work on the project.

H. Amended notifications may be submitted for modifications of subdivisions B 3 through B 11 of this section. No amendments to subdivision B 1 or B 2 of this section shall be allowed. A copy of the original notification form with the amended items circled and the permit number entered shall be submitted at any time prior to the removal date on the original notification.

1. No amended notification shall be effective if an incomplete form is submitted or if the proper permit amendment fee is not enclosed with the completed notification.

2. A permit amendment fee shall be submitted with the amended notification form. The fee shall be in accordance with the following schedule:

a. For modifications to subdivisions B 3, B 4, and B 6 through B 10 of this section, $15.

b. For modifications to subdivision B 5 of this section, the difference between the permit fee in subsection C of this section for the amended amount of lead and the original permit fee submitted, plus $15.

3. Modifications to the completion date may be made at any time up to the completion date on the original notification.

4. If the amended notification is complete and the required fee is included, the department will issue an amended permit if necessary.

I. The department must be notified prior to any cancellation. A copy of the original notification form marked "canceled" must be received no later than the scheduled removal date. Cancellation of a project may also be done by facsimile transmission. Refunds of the lead project permit fee will be made for timely cancellations when a notarized notice of cancellation signed by the owner is submitted.

The following amounts will be deducted from the refund payment: $15 for processing of the original notification, $15 for each amendment filed, and $15 for processing the refund payment.

J. Notification for any lead project, emergency notification, or amendment to notification may be done by facsimile transmission if the required fees are paid by credit card.