Will Reinstating the RRP Opt Out Provision Really Help Your Business?

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Will Reinstating the RRP Opt Out Provision Really Help Your Business?

Recently Legislation introduced by Senator Inhofe (R) in Bill 2148, the ‘‘Lead Exposure Reduction Amendments Act of 2012’’, among other amendments within the bill, included reinstating the RRP opt out provision that was previously removed when the Sierra Club sued the EPA back in 2009. There is certainly some difference of opinion within the industry regarding whether reinstating the RRP opt out provision makes sense and or will actually be beneficial.   A recent guest blog on RRPedia by Peter Lawton triggered comments from many in favor and against the opt out.  One commenter admitted he was originally in favor of the opt out but was rethinking his position after reading Peter’s blog post.

So, will the opt out actually help businesses?  Maybe.  Maybe not...

I suggest the real problem is that the original rule was poorly conceived and poorly written. Because we are now stuck with it, the proposed amendments are really just band-aid approaches to try to make it better for or more palatable to those affected by the rule. What we really need is a new well thought out rule to replace the existing rule, with the input and leadership of the industry this time.  And, the industry needs to be proactive this time in its writing, its content and its enforcement.

That said it is not likely that the rule will be abandoned and replaced by EPA.   Doing so would be an embarrassment to EPA because it would essentially be admitting it had screwed up.    So, we have to deal with trying to improve upon the existing rule.

Here are several considerations that need to be recognized if the Opt-Out becomes available again:

• Not using lead safe practices on a pre 1978 property is a big risk.  Unless the house is pretested before renovations there is no point of reference regarding existing contamination. If lead safe work practices are not used, how will the business prove it did not cause the contamination?
• If not following the RRP protocols and documenting work practices, the contractor will not be able to provide a preponderance of evidence in his/her favor if accused by the client and or their children of lead related problems after a renovation.
• If the contractor allows a client’s use of the opt out the business and the business owner will still be responsible and liable for damages if the work done by employee well as sub contractors contaminates the house during the work.
• If the home is pre 1978 and is not tested for lead, the contractor must still assume it has lead and must follow OSHA requirements to protect workers and sub contractors. 
• Are your employees aware of the above point?   What would they do and how will your business be affected if they do become aware and contact OSHA and/or have their blood checked for lead?

Not having to follow the RRP rule might just create more problems and risks than following it.   The home owner can choose the opt out to avoid the extra cost.  A contractor can also choose to opt out on the opt out.  If you’re a renovator what will you do regarding the opt out and why?