BUSINESS FEATURE: Featheredge, Prime and Block: Case Closed The EPA’s new 6H Rule proves that Featheredge, Prime and Block (FPB) is a paint procedure, not a body procedure. Here’s how the 6H Rule applies to FPB and what the possible penalties are for failing to comply. By Andrew J. Rodenhouse, J.D.1/18/2010 10:38:46 AM As most people involved in the collision repair industry are aware, the National Emission Standard for Hazardous Air Pollutants (NESHAP)1, or 6H as it’s known to repairers, required all body shops to file an original notification with the EPA by Jan. 11, 2010, be in compliance by Jan. 10, 2011, and file a final notification of compliance by March 11, 2011.2 However, what most people don’t realize is that the new 6H Rule has settled one of the many longstanding disputes between repairers and insurers: whether Featheredge, Prime and Block (FPB) is a paint procedure or a body procedure. The Great Debate Most insurance companies claim that FPB is a function of body labor and should be paid as a body procedure, or is already “included” in the repair time, thereby not requiring payment for paint materials. But most shops claim that FPB is a function of the paint department because it requires the use of a surface coating, namely primer, and the use of a High Volume Low Pressure (HVLP) spray gun. Therefore, they believe it should be billed as a paint procedure, which would include payment for paint materials. While 6H doesn’t address how much time FPB requires or whether it should even be paid at all, it does say that if FPB is going to be performed, it must be performed under the guidelines of the 6H Rule, regardless of whether the repairer charges for it. This means that any application of a primer that’s sprayed through an HVLP spray gun or its equivalent with the capacity of greater than 3 ounces must be performed in either a spray booth or an approved prep area by a certified painter. Further, if the shop charges for FPB, it must be charged as a paint procedure and not as a body procedure. This is because any final bill showing that FPB was charged as a body procedure or “included” in the body procedure may be used as evidence against the repairer by the government that it violated the 6H Rule. If a shop owner, manager, painter or body technician violates this rule, it will leave him or her open to civil liability, criminal liability or even jail time. The 6H Rule The 6H rule applies to all operations that perform paint stripping using methylene chloride (MeCl), surface coating of miscellaneous metal or plastic parts, and surface coating of motor vehicles and mobile equipment4 – in short, body shops. Further, 6H defines coatings as “a material spray-applied to a substrate for decorative, protective or functional purposes. A spray-applied primer would constitute either a protective or functional coating applied to the substrate (repaired part) because it’s designed to protect the underlying repaired panel or promote adhesion with overlying basecoats or both. 6H defines spray-applied as “coatings that are applied using a hand-held device that creates an atomized mist of coating and deposits the coating on a substrate.”6 This is achieved by using any spray gun that’s capable of holding more than 3 ounces of primer, not just an HVLP spray gun or its equivalent. Therefore, any spray-applied primer coating that’s applied to any part on a vehicle is included in the regulatory scheme of 6H and is subject to the rule. 6H also requires that all spray-applied coatings must be applied in a spray booth, preparation station or mobile enclosure that meets the requirements of [the rule].”7 For years, spray booths, prep stations and mobile enclosures have been the domain of the paint department in most shops, and most shops have already invested thousands of dollars in this type of specialized equipment to achieve a maximum quality refinish product. Further, these types of equipment are highly specialized and are generally not suitable for uses other than the application of paint coatings and primers. Most shops are already complying with this part of the rule during the repair process – not because some rule requires it but because it makes sense in the repair process to have the priming of parts performed in the paint department by the technician who’s ultimately responsible for a quality refinished product. 6H also states that “[a]all painters must be certified that they have completed training in the proper spray-application of surface coatings and the proper setup and maintenance of spray equipment...The spray-application of surface coatings is prohibited by persons who are not certified as having completed the training described in [this rule].”8 A painter is defined as “any person who sprays-applies coating [sic].”9 According to 6H, a painter must be certified in, among other things, the proper spray gun selection, fluid tip or nozzle selection, different types of coatings, and the proper booth filter maintenance and filter selection. 6H also says that any “[e]employees who transfer within a company to a position as a painter are subject to the same requirements as a new hire.”11 Most quality body shops have already required their painters to take classes and be certified in order to achieve high-quality refinish products. All 6H states is that if an employee picks up a spray gun and does anything with it other than hold it, he or she is considered a painter and must be certified as such. Therefore, the spray-application of a primer to a part for the purposes of FPB must be performed by a properly trained and certified painter – not a body technician. Busted by the Bill So what does all this mean for FPB? 6H makes it clear that the application of primer in the FPB procedure must be performed in a spray booth, prep station or mobile enclosure by a trained and certified painter. In short, FPB is an operation of the paint department and not the body, frame, or mechanical departments in a shop. How would a government agency know if FPB was being performed in the paint department by a certified painter? Well, short of walking in the front door and observing a non-certified person applying primer outside of the paint department, a regulator could simply look at the final bill indicating that FPB was charged as a body procedure – due to the fact that, under the Federal Rules of Evidence, all relevant evidence is admissible evidence.12 While a final bill indicating that FPB was billed as a body procedure wouldn’t necessarily be an admission of violating the 6H Rule, it would be strong evidence against a shop that the procedure wasn’t performed in the paint department by a certified painter. It would most likely create a rebuttable presumption in a civil action that the shop violated the 6H Rule, and the burden would then shift to the shop to prove that it had in fact complied with the 6H Rule. In a criminal matter, the final bill would raise strong questions by the trier-of-fact that the shop indeed violated the 6H Rule. Therefore, if a shop lists the FPB procedure on a final bill, even if it wasn’t charged for or the shop didn’t charge for materials, it would have been a good idea to list it as a paint procedure. Further, listing FPB as a paint procedure would also help prove that a shop was complying with the 6H Rule if an investigation were to take place. Steep Fines There can be stiff penalties for failing to comply with 6H. 6H is incorporated13 into The Clean Air Act of 1990, 14 which carries a lengthy penalty section.15 these penalties range from a civil penalty of up to $25,000 per day16, criminal fines of up to $1 million17 or even prison time of up to five years18 for companies and individuals who knowingly violate any portion of the rule. Neither a good faith effort to comply with the 6H Rule nor lacking actual knowledge of its requirements19 will shield an owner or operator from these penalties.20 Further, the U.S. Eleventh Circuit Court of Appeals held that a wilful violation is not an essential element of the crime.21 This means that an owner or employee doesn’t need to know that he or she is violating the 6H Rule in order for the civil and criminal sanctions to be imposed. Unfortunately, it would be the shop owner or employee who would be subject to these penalties – not the insurance company that insisted FPB was a body procedure. Andrew J. Rodenhouse received his J.D. from Thomas M. Cooley Law School and is licensed to practice law in Michigan. He also has a Masters of Management Degree from Aquinas College and a bachelor’s degree from Hope College. Previously, he was the executive vice president of Rodenhouse Body Shop and owner of J&K Towing.
Once the regulations come into force they will restrict who is able to buy paint. This will also make any bodyshop repairs more expensive due to revised painting regulations
It will have no effect on who can buy paint. Feather, Prime and Block is done at Body Shops who are already buying paint. If anything this will cause more aggravation for shops because it will open them up to more fines if they don't do the procedure in the contained paint area; which doesn't occur ever in the 1st place. They'd have to move car (many times not drivable) to the paint booth, which isn't very convenient to say the least. And a certified painter will be required to apply the coating. I think costs will ultimately be very minimal for the final bill. The only way I can see this affecting the detail industry is less chances of body shop (primer) overspray. Do you see it differently?
I am honestly not sure how this play out. It certainly means moving a car to the booth, then back out of the booth, and back into it again. If this does limit who can buy paint it will be one huge uprising in the classic car community. I do not see this happening, although it may in the future. The affect on the Detail industry may be minimal, but the affect to the automotive community period is what makes this relevant. This will mean higher repair costs though, as a certified painter gets a lot more money than an apprentice who may have carried out the work previously.
It also appears (as would be expected) the Body Shops business article is tainted towards their industry. The bulletin below is from the EPA which sheds some additional light on this subject and is from the governmental agency charged with monitoring this issue: What Is The Compliance Date? • Existing Sources: January 10, 2011. • New Sources: Upon startup after January 9, 2008. • An affected source is a new source if you commenced construction of the source after September 17, 2007 by installing new paint stripping or surface coating equipment at a source not actively engaged in paint stripping and/or miscellaneous surface coating prior to September 17, 2007. • An affected source is an existing source if it is not a new source or a reconstructed source (An affected source is reconstructed if it meets the definition of reconstruction in section 63.2.). What are the Permitting Requirements? • Affected facilities are exempt from Title V permit requirements provided they are not required to obtain a permit for another reason. What Reporting\Recordkeeping is Required? Reporting: • Initial Notification (informs EPA that the facility is subject to the standards and when the source will be in compliance). New Sources: July 7, 2008 or 180 days after startup Existing Sources: January 11, 2010 • Notification of Compliance (certifies that the source is in compliance with the applicable requirements). New Sources: As part of the Initial Notification Existing Sources: March 11, 2011 • Annual notification of changes report—required each calendar year any reportable changes occur. Recordkeeping (keep these records on file) • Records to include copies of Notifications submitted to EPA. • Painter training certifications. • Spray booth filter efficiency documentation. • Spray gun transfer efficiency. • MeCl content information such as MSDS. • Annual usage of MeCl for paint stripping, and written MeCl minimization plan if annual usage > 1 ton per year. • Deviation and corrective action documentation. Records to be maintained in a form suitable and readily available for expeditious review. You can also contact yourRegional EPA air toxics office at the following numbers: Address States Website/ Phone Number Region 1 1 Congress Street Suite 1100 Boston, MA 02114-2023 CT, MA, ME, NH, RI, VT Region 1: New England | US EPA (888)372-7341 (617) 918-1650 Region 2 290 Broadway New York, NY 10007-1866 NJ, NY, PR, VI Region 2 | US EPA (212) 637-4023 Region 3 1650 Arch Street Philadelphia, PA 19103-2029 DE, MD, PA, VA, WV, DC Redirect to EPA Region 3 Home Page (800) 228-8711 (215) 814-2196 Region 4 Atlanta Federal Center 61 Forsyth Street, SW Atlanta, GA 30303-8960 FL, NC, SC, KY TN, GA, AL, MS Serving Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee and 6 Tribes | Region 4 | US EPA (404) 562-9131 (800) 241-1754 Region 5 77 West Jackson Blvd. Chicago, IL 60604-3507 IL, IN, MI, WI, MN, OH Region 5 | US EPA (312) 886-6812 (312) 353-6684 (312) 886-6798 Region 6 1445 Ross Avenue Suite 1200 Dallas, TX 75202-2733 AR, LA, NM, OK, TX Region 6 | US EPA (800) 887-6063* (214) 665-7250 (214) 665-7224 Region 7 901 North Fifth Street Kansas City, KS 66101 IA, KS, MO, NE Region 7 Home Page | US EPA (800) 223-0425 (913)-551-7003 Region 8 1595 Wynkoop St. Denver, CO 80202-1129 CO, MT, ND, SD, UT, WY Region 8 home page | Region 8 | US EPA (800) 227-8917* (303) 312-6460 Region 9 75 Hawthorne Street San Francisco, CA 94105 CA, AZ, HI, NV, GU, AS, MP U.S. EPA - Pacific Southwest Region (415) 947-8715 Region 10 1200 6th Ave. Suite 900, AWT-107 Seattle, WA 98101 AK, ID WA, OR Region 10 | US EPA (800) 424-4372* (206) 553-6220 * For sources within the region only. For More Information Copies of the rule and other materials are located at: Urban Air Toxics Strategy Area Source Standards | Technology Transfer Network Air Technical Web Site | US EPA For more information on state requirements, please contact your state representatives at: http://www.epa.gov/ttn/atw/area/table_state_contacts.doc or, NACAA PAINT STRIPPING AND MISCELLANEOUS SURFACE COATING OPERATIONS (SUBPART HHHHHH) What Is an Area Source? • Any source that is not a major source. (A major source is a facility that emits, or has the potential to emit in the absence of controls, at least 10 tons per year (TPY) of individual hazardous air pollutants (HAP) or 25 TPY of combined HAP.) Who Does This Rule Apply To? • Area sources that engage in any of the following: Paint stripping operations that use methylene chloride (MeCl)-containing paint stripping formulations; Spray application of coatings to motor vehicles and mobile equipment; Spray application of coatings to a plastic and/or metal substrate where the coatings contain compounds of chromium (Cr), lead (Pb), manganese (Mn), nickel (Ni), or cadmium (Cd). This rule does not apply to: • Surface coating or paint stripping performed on site at installations owned or operated by the Armed Forces of the United States. • Surface coating or paint stripping of military munitions or equipment directly and exclusively used for the purposes of transporting military munitions. • Surface coating or paint stripping performed by individuals on their personal vehicles, property or possessions, either as a hobby or for maintenance of their personal vehicles, possessions, or property provided they coat no more than two vehicles per year. • Surface coating or paint stripping that meets the definition of “research and laboratory activities.” • Surface coating or paint stripping that meets the definition of “quality control activities.” • Surface coating or paint stripping that meets the definition of “quality control activities.” • Surface coating or paint stripping activities that are covered under another area source NESHAP Motor vehicle or mobile equipment surface coating operations may petition the Administrator for an exemption from this subpart if you can demonstrate, to the satisfaction of the Administrator, that you spray apply no coatings that contain compounds of chromium (Cr), lead (Pb), manganese (Mn), nickel (Ni), or cadmium (Cd). What Am I Required To Do? • Paint Stripping Operations—implement management practices that minimize emissions of MeCl. Evaluate the need for paint stripping (e.g., is it possible to re-coat without stripping?). Evaluate each application to identify potential alternative stripping methods. Reduce exposure of strippers to air. Optimize application conditions. Practice proper storage and disposal. • For each paint stripping operation with > 1 ton MeCl annual usage, develop and implement a written MeCl minimization plan. No implementation plan is needed if usage is < 1 ton MeCl; however, sources must still utilize work practices to minimize emissions of MeCl. Consult the MSDS sheet to identify the amount of MeCl contained in the paint stripper, but note that annual usage should not exceed 181 gallons of MeCl. • Maintain records of annual usage of paint strippers containing MeCl. • Motor Vehicle/Mobile Equipment/Miscellaneous Surface Coating Operations. Train/certify all painters on spray gun equipment selection, spray techniques, maintenance, and environmental compliance (consult 73 FR 1738, pg. 1762, section 63.11173(f)(2)(i)-(iv)). Install/operate filter technology on all spray booths/stations/enclosures to achieve at least 98% capture efficiency. Spray booths/stations used to refinish complete motor vehicles or mobile equipment must be fully enclosed and ventilated at negative pressure or up to 0.05 inches water gauge positive pressure for booths that have seals on all doors and other openings and an automatic pressure balancing system. Spray booths/stations used to coat miscellaneous parts or products or vehicle subassemblies must have a full roof, at least three complete walls or side curtains, and ventilated so that air is drawn into the booth. Spray-applied coatings must be applied with a high volume, low pressure (HVLP) spray gun, electrostatic application, airless or air-assisted airless spray gun, or an equivalent technology. Paint spray gun cleaning must be done so that an atomized mist or spray of the cleaning solvent is not created outside a container that collects used gun cleaning solvent. Train and certify all personnel who spray apply surface coatings no later than 180 days after hiring or by July 7, 2008 (new sources) or by January 10, 2011 (existing sources). What are the Impacts? • Most paint stripping facilities already comply with the rule requirements. Estimate 1,000 facilities will need to take action to comply. Reduce 1,000 tons MeCl annually, Capital costs = $1.5 million. Annual benefit = $0.9 million. • Most surface coating facilities already comply with the rule requirements. Estimate < 25% of existing facilities will need to take some action to comply. Reduce 6,900 tons of HAP annually including 11 tons of metal HAP. Capital costs = $20 million; however, initial cost to be offset and recovered over time by cost savings as a result of more efficient use of labor and materials.
