Former Detroit Lead Inspector Sentenced for Fraud

According to an article in the Detroit Free Press, Donald Patterson, a former lead inspector for the City of Detroit, was indicted last year on charges of soliciting bribes, wire fraud and making false statements about lead inspections. Among the allegations were that he allowed a 2-year-old child with high blood-lead levels to return to a home with lead-based paint hazards, falsely declaring it safe and making the child sicker.

The following is News Release from EPA, published on February 8, 2011.  Though not specific to the RRP Rule, this action by both EPA and the FBI shows that willfull violators of lead related regulations are currently a major focus for EPA and they are serious about prosecuting violators. 

EPA uses news releases and press releases like the one below to make the public aware of LBP related violations.   The use and purposes of the releases as tools is clearly explained in footnote #10 included inside the Consolidated Enforcement Response and Penalty Policy for the RRP Rule:

"EPA may, at its discretion, issue a press release or advisory to notify the public of the filing of an enforcement action, settlement, or adjudication concerning a person’s violation of TSCA. A press release can be a useful tool to notify the public of Agency actions for TSCA noncompliance and specifically, to educate the public on the requirements of LBP Program. The issuance of a press release or advisory as well as the nature of their contents are within the sole discretion of the Agency and shall not be subject to negotiation with the violator."

News Release as Follows:

CONTACT:
Stacy Kika
kika.stacy@epa.gov
202-564-0906
202-564-4355

WASHINGTON — Former city of Detroit Health Department lead inspector Donald Patterson was sentenced today to three years and 10 months in prison and 24 months of supervised release on wire fraud charges stemming from an U.S. Environmental Protection Agency (EPA) investigation. In July 2010, Patterson pleaded guilty and admitted he accepted cash to provide a clean bill of health to homes in which he had either done no inspection or provided fraudulent lead removal training. Lead is a serious public health issue causing a range of health effects from behavioral problems and learning disabilities, to seizures and death. Children six years old and under are most at risk.

“The actions of this public official put the health and lives of children at risk,” said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. “In this case, the local government inspector failed to do his job by submitting false reports for personal gain. Today’s sentencing shows that those who knowingly put the public at risk, particularly our most vulnerable citizens, our children, will be prosecuted to the fullest extent of the law.”

Patterson, 50, was employed by the city of Detroit as a lead paint inspector. His job was to ensure that all paint-based lead hazards were safely removed from the homes he inspected. Instead, Patterson used his position to obtain cash from the owners or renters of these homes in exchange for falsely certifying that the homes were free of lead or for providing fraudulent lead removal training. Patterson admitted that between October 2008 and August 2009 he had accepted cash totaling $1,350 in connection with fraudulent abatement of lead hazards to which children were being exposed at four separate properties.

The Patterson case was investigated by EPA and the FBI, with assistance from the city of Detroit and the state of Michigan.

RRP And Politics As Usual

One Person’s Opinion: This is a guest blog submitted by Paul Lesieur to express his opinion.  Paul is a Yankee trained craftsman and the founder of www.remodelcrazy.com.  He comments and contributes to RRPedia quite often.  If you would like to express your opinion or offer something of value for RRPedia visitors let me know.

RRP And Politics As Usual

A lot has been written and said about the EPA's RRP rule. It's here and we need to deal with the impact it will put on home remodeling.

What About It?

At first some contractors and even the NARI group were proudly proclaiming how this is perfect to separate themselves from the hacks. Truth is, only some members complied some did not. But still, most contractors agreed it’s good to protect the clients and their workers, there has never been an argument over that.

Some contractors saw it as government interference and an opportunity for lower priced criminals pretending to be contractors to have yet one more advantage in this price sensitive economy.

The new RRP rule is a game changer, it was badly promoted and even after all this time most homeowners are unaware of the RRP rule and many contractors, real estate professionals and lenders haven't heard of it. This is proving to be a political curve ball that may end up doing much more harm than good.

The Good!

The RRP may be the event that began a movement to unite our industry, something our present organizations have failed to accomplish. It will certainly raise standards for safer and cleaner work sites, and it will provide a dialogue between Realtors, lenders and remodeling professionals with more than just the usual requests for fast and free estimates. The RRP may also insure that permits get issued only to registered firms.  Some contractors will successfully use the RRP rule to sell work, although this will be a small part of the market. So in a way this rule, if it ever gets known to the general public will make it clear that homeowners need to hire licensed companies for most work.

The Bad!

Some contractors will lose work, mostly at the middle where a difference of 1 or 2 thousand dollars in price can cost you the job. There is no getting around the fact that the RRP rule has added time and money to an already complicated process. Remodeling has always been a carefully orchestrated series of events and now we have added another process to the mix.

Public awareness is minimal. Misinformation is rampant and even the EPA is on record saying the costs for complying with the rule will be between $8 and $167 per job. I hope homeowners don't believe that.

Contractors will have yet another business expense that the unlicensed companies won't have. And the list goes on.

Some new and important changes will be coming our way concerning the RRP; mainly the states will be taking over interpreting and enforcing the rule. If you think it’s a pain now, wait until your state starts telling you how it wants things done.

When the bankers get educated what's going to happen when you apply to refinance your 1952 ranch home? Think this isn't being discussed with loan underwriters? Think again!

Here are some comments, all from licensed business owners, all have been in business for 10 to 30 years. These people have managed to grow their businesses and ride the ups and downs of our American economy, read what they have to say.

PN of Minneapolis.

I am known for my clean work sites, some customers have even told me it was ok to be a little more messy, but I am who I am. Concerning the RRP, this will add time and money for certain jobs and that will make me less competitive, it can be a deal breaker if my competition isn't doing the RRP or charging for it.

KC of Los Angeles.

That's always been my biggest problem with this RRP thing. It's not OUR lead. It's the homeowner's problem, and we are bound by law to handle it a certain way or face severe fines and possibly devastating civil suits. The handling costs money, and the client is responsible for absorbing that cost as part of the project.

But the clients don't seem to want to grasp this concept. The EPA has stacked the deck against us from the git-go. Publishing information that states the average cost for proper handling starts at $35??? And the homeowners are exempt if they do the work themselves.

Has anyone had any consistent success in getting homeowners to absorb a $1500 added cost (or more) for lead paint safe handling?

Every contractor I know is either ignoring the rule altogether, or eating the cost of the visqueen and tape and suits and all that crap just to get the damn job.
I have literally been laughed at by homeowners for including an RRP charge in my estimates. Most of them view it as a nanny state regulation and just more government control.
And why pay for it when there are dozens of other contractors that will either ignore it altogether or eat the cost themselves.

The government screwed the pooch on the way they handled this. And guess what, it isn't working and probably never will

WS of New Jersey

We're a manufacturer of vinyl replacement windows in Northern NJ (NYC Metro), we sell retail and wholesale. We also do our own installations and have experienced a downturn in installations due to RRP costs. We are playing by the rules, but getting hammered from it.

RJ of Connecticut.

I sweated my way through a one room paint proposal presentation that had a $568 charge for RRP because the house was built in 1977. Homeowners agreed after several eyebrows went up and down several times, 15 minutes of my lecturing about lead paint and the admission that their six year old grandson lives with them 4 days each week. I enjoy being a craftsman, not the tax collector or bureaucrat.

The homeowner opt-out is unfortunate- that is the most likely time for the target population (children) to be exposed to the contaminant.

The Ugly!

So far the RRP rule is growing an underground group of non compliant contractors. It’s a divisive rule and even the supporters are starting to keep their opinions private. The solution is to study this rule and look for the loopholes that will repeal some of the suggested work practices. If the EPA says it cost $8 to $167 to comply then it should. Testing can be done (by contractors) to find some simple but effective work habits.

RRP Info for Property Owners of Rental Housing and Child-Occupied Facilities

Note:  This information came from an article on the ASAP Environmental web site and has been updated for the purpose of this post:

Property owners who renovate, repair, or prepare surfaces for painting in pre-1978 rental housing or space rented by child-care facilities must, before beginning work, provide tenants with a copy of EPA's lead hazard information pamphlet "Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools".

Owners of these rental properties must document compliance with this requirement ? EPA's sample Pre-Renovation Disclosure Form may be used for this purpose.

Beginning April 22, 2010, property owners who perform these projects in pre-1978 rental housing or space rented by child-care facilities must be certified and follow the lead-safe work practices required by EPA's Renovation, Repair and Remodeling rule. To become certified, property owners must submit an application for firm certification and fee payment to EPA. EPA will begin processing applications on October 22, 2009. The Agency has up to 90 days after receiving a complete request for certification to approve or disapprove the application. Read more about EPA's rules and lead-safe work practices in EPA's pamphlet Contractors: Lead Safety during Renovation Property owners who perform renovation, repairs, and painting jobs in rental property should also:

• Take training to learn how to perform lead-safe work practices.
• Learn the lead laws that apply to you regarding certification and lead-safe work practices beginning in April 2010.

• Keep records to demonstrate that you and your workers have been trained in lead-safe work practices and that you followed lead-safe work practices on the job. To make recordkeeping easier, you may use the sample recordkeeping checklist that EPA has developed to help contractors comply with the renovation recordkeeping requirements that will take effect in April 2010.

Deleading vs. Renovation, Repair and Painting Work: What's the Difference? 

Note:  The following information is from the MA Labor and Workforce Development Web site.

While deleading activities conducted in residences and child-occupied facilities often involve work methods similar to those typically used in renovation, repair or painting (RRP) activities, such as replacing windows, painting and installing vinyl siding, the two types of activities are distinct from each other in terms of purpose and effect.

Deleading work is work conducted to achieve compliance with the Massachusetts Lead Law through the abatement of lead paint hazards.  Carried through to completion, deleading work leads to the issuance of a document called a Letter of Compliance, which indicates that the property has met deleading requirements administered by the Childhood Lead Poisoning Program of the Massachusetts Department of Public Health (CLPPP) under the Massachusetts Lead Law and 105 CMR 460.000. In some instances, deleading work takes place after the owner has received an order to bring the property into compliance with the Massachusetts Lead Law.  In other instances, the owner voluntarily decides to delead the property and seek a Letter of Compliance.

Renovation work (RRP work) is work conducted for a fee that disturbs more than threshold amounts of painted surfaces in pre-1978 residences (target housing) and child-occupied facilities (kindergartens, daycares, etc.), where the purpose of the work is other than the abatement of lead paint hazards or the achievement of a Letter of Compliance.  Renovation work is often carried out to repair, upgrade or beautify the property.

Once you have made the initial determination regarding whether your project is a renovation project or a deleading project, the next question is how to choose a contractor who is licensed and qualified to perform the work.   Click on the following link to view a helpful guide on choosing a deleading contractor, “Deleader Contractor Information Bulletin.”  Click on the following link to view a helpful guide on choosing a “lead safe” renovation contractor, “Lead Safe Renovation Contractor Information Bulletin.” 

Was The RRP Created for the Right Reasons?  

One Person’s Opinion: This is a guest blog submitted by Ray Douglas to express his opinion.  Ray is a remodeling contractor in Brodhead, Wisconsin and has been in business for 34 years. He comments and contributes to RRPedia quite often.  If you would like to express your opinion or offer something of value for RRPedia visitors let me know.

Was RRP Created for the Right Reasons?  

The EPA had good reasons and intentions at first to study the effects and causes of elevated blood lead levels, but the levels of EBLL’s in children ages 6 and under dropped dramatically in years 1997-2007. Data from the CDC documents the drop. 

So common sense and logic would say this problem was correcting itself without this new rule.  So what is the reason for RRP?

The EPA has been working for years on the effects of remodeling and renovation in connection with EBLL’s.  The EPA’s Proposed RRP Rule issued on January 10, 2006 describes how some of their research was conducted.  

In a document dated December 1998 EPA received a study that “was funded and managed by the US Environmental Protection Agency.”   I suspect EPA spent millions if not billions of taxpayer dollars on research, studies, the writing of and implementation of the RRP rule.

But something happened along the way and EBLL’s in children 6 and under dropped dramatically.  So why did EPA go ahead with the RRP?  In my opinion one of two things happened. 

1. EPA didn’t notice EBLL’s were dropping      
2. EPA knew the levels were dropping, but had to justify all the taxpayer money they had already spent. 

The EPA couldn’t go back to congress and tell them most of the money they spent was a waste because the problem was correcting itself.

So what did EPA do?  Create the RRP.  Why?  In my opinion I think it was to justify taxpayer money spent and to create a need for future EPA growth.   A similar situation would be like a department in industry that doesn’t use its entire operating budget in a year.   The next year the budget gets cut (layoffs etc), so the department finds a way to use the money whether it is productive or not, so they don’t have to face a budget cut the following year.

Education and public awareness were keys to EBLL’s dropping, but that may have been problematic for the EPA.  If education and public awareness were enough to reduce the problem then the EPA could potentially lose some of its congressional funding.   But by creating RRP, EPA takes a problem that was solving itself---creates regulations to solve it---then those regulations in themselves become a problem----therefore giving EPA a reason for its own existence and more congressional funding.

Is The RRP Rule “Outdated And Harmful To The Economy”?

A New York Times story today reported that President Obama has ordered a top-to-bottom review of federal regulations to get rid of rules that are outdated and harmful to the economy.  Is the current RRP Rule based on outdated research and is it harmful to the economy?   Many in the remodeling industry think so and have been beating that drum for some time now.  Perhaps this is just what the remodeling industry needs to help get rid of the current RRP Rule in favor of one that is up to date and protects legally operating businesses.

According to the story Obama signed an executive order today that would step up oversight of the regulations issued by government agencies such as U.S. EPA and the Interior Department.

Here are a few promising excerpts from the executive order, let’s hope the president really means what he signed:

 “Section 1.  General Principles of Regulation.  (a)  Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.  It must be based on the best available science.  It must allow for public participation and an open exchange of ideas.  It must promote predictability and reduce uncertainty.  It must identify and use the best, most innovative and least burdensome tools for achieving regulatory ends.  It must take into account benefits and costs, both quantitative and qualitative.  It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand.  It must measure, and seek to improve, the actual results of regulatory requirements.”

“To the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt”

“Identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.”

“Regulations shall be adopted through a process that involves public participation.  To that end, regulations shall be based, to the extent feasible and consistent with law, on the open exchange of information and perspectives among State, local, and tribal officials, experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole.”

“Each agency shall also seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation.”

“Sec. 6.  Retrospective Analyses of Existing Rules.  (a)  To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”

Perhaps industry trade associations can take advantage of this executive order to get EPA to rethink the current RRP rule.  To protect the interests of renovators, at a minimum, the RRP Rule or any proposed amendments should reflect real scientific facts about EBLL’s caused by RRP activities and address the economic challenges currently being experienced by compliant businesses that have been complaining about illegal and unfair completion due to the lack of enforcement of the RRP Rule by EPA. 

Based on the executive order, perhaps the EPA will also be forced to track, measure and report on the actual effectiveness of the rule in accomplishing specific performance outcomes.  If performance outcomes are specific and clear, I suggest a revised rule could not only better address the lead poisoning of children due to RRP, it could also assist in fostering innovative methods and tools that would help our industry reduce the cost to do so; for businesses and the consumer.

Recognizing Trade Associations Trying To Affect the RRP Rule

There have been a number of trade associations that have been working to affect the RRP Rule since it came into effect on April 22, 2010.   NARI and the Remodelers Council of the NAHB represent remodeling contractors and both associations have been working, although mostly independently, to address the challenges the RRP Rule is causing for their members.   However there are many other trade associations representing businesses other than remodelers, as well as those representing product manufacturers and the industry supply chain, which have also invested significant and often substantial efforts to address the negative impacts the RRP Rule has had on their own members.  

Although their primary purpose is to represent and protect their members, the efforts of these trade associations also benefit remodelers and therefore should be recognized.   I thought this would be a good opportunity to recognize some of these associations.   The list below is by no means complete as I am sure there are many other associations contributing as well.   If I have missed any that you know of please name them by posting a comment below.  I will add them to the list in the body of this article as I am made aware of them.

List of Trade Associations Fighting the RRP Rule:

• National Association of the Remodeling Industry
• Air Conditioning Contractors of America
• Associated Builders and Contractors
• Painting and Decorating Contractors of America
• Associated General Contractors of America
• Electronic Security Association
• Hearth, Patio & Barbecue Association
• Insulation Contractors Association of America
• Manufactured Housing Institute
• Window & Door Dealers Alliance
• National Glass Association
• National Apartment Association
• NAIOP, the Commercial Real Estate Development Association
• National Association of Home Builders
• National Lumber & Building Material Dealers Association
• National Multi Housing Council
• Plumbing-Heating-Cooling Contractors—National Association
• The Real Estate Roundtable
• Vinyl Siding Institute
• Window & Door Manufacturers Association
• Lead and Environmental Hazards Association

Click here for some recent examples of what trade associations have done to address RRP challenges.

Visit the EPA RRP Rule Updates Page to see a chronological history of efforts related to the rule even before it was put into effect on April 22, 2010

CCB Reminds Contractors of the Lead-Based Paint Safety Requirements in Oregon

Note: The following information was found on the CCBlog of the Oregon Construction Contractors Board (CCB)

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Trade Associations Trying To Affect the RRP Rule and Protect Small Businesses

Trade associations have been working to affect the RRP rule and the challenges the rule creates for their members.   Renovators visiting RRPedia frequently ask me what is being done by trade associations to affect the RRP Rule, change the RRP Rule and even repeal the RRP Rule.  I have made an effort to watch for these activities for two reasons.  The first is to see who is doing what and what their strategies are.  Some I agree with and support; others I don’t.  The second reason is so I can provide links to these activities on the EPA RRP Rule Updates page of my web site.   The page shows somewhat of a chronological history of activities related to the RRP Rule even before it was put into effect on April 22, 2010.  If you know of any updates worth posting, old or new, please let me know.

Two recent efforts by trade associations recently came across my attention.   One was by the National Association of the Remodeling Industry (NARI).  In a letter addressed to EPA Administrator Lisa P. Jackson, NARI Executive Vice President Mary Busey Harris, CAE
requested stricter enforcement of the Lead Renovation, Repair and Painting (LRRP) Rule. 

In the letter Harris offered the following:

“…non-certified contractors are working on pre-1978 homes in violation of LRRP, and we are concerned that such illegal activity will continue unless EPA launches a tough enforcement campaign.  Non-certified contractors who do work on pre-1978 homes heighten the risk of lead exposure and threaten the economic viability of remodelers who made the investment to become EPA-certified.  In our view, the only way for EPA to address the problem of non-certified contractors is to aggressively and publicly enforce the LRRP rule and to push authorized states to do the same.”

The second effort is by The National Lumber and Building Material Dealers Association (NLBMDA).  NLBMDA is urging the new chairman of the House Committee on Oversight and Government Reform to review and fight the RRP Rule as well as three OSHA programs that the dealer group is opposed to.  In a letter to Darrell Issa, Chairman of the committee, NLBMDA points out that poor development and implementation of the LRRP Rule resulted in:

• Not enough training opportunities for renovators to become certified and therefore not enough certified renovators at the time of implementation;

• Inadequate lead test kits producing over 60 percent false positives and an EPA estimated $200 million in unnecessary additional compliance costs;

• Ineffective and insufficient consumer awareness programs; and

• Woefully underestimated costs for compliance with the LRRP Rule, particularly for small businesses.

The NLBMDA letter also points out that:

“EPA’s inability to produce any meaningful consumer education on the LRRP Rule has also resulted in consumers hiring uncertified contractors due to the increased costs of hiring certified renovators. This means that legitimate businesses that are complying with the LRRP Rule cannot compete for much-needed work against non-compliant contractors that, ironically, lack the training to actually perform lead-safe renovations and prevent lead hazard exposures.”

I suggest that the two letters contain some very good points and are well written.  Renovators with similar concerns could, using the content of these two letters as a reference, write to their own local politicians and or to EPA to express their concerns and demand that EPA recognize the challenges small businesses are having as a result of the rule as well as EPA’s lack of adequate administration and enforcement of the rule.

Note:  After writing this blog and seeing the comments, I was inspired to write this blog for my weekly blog on the REMODELING magazine web site.   I hope you will check it out.

Costs Of RRP Compliance Challenging Many Businesses and Likely To Go Higher!

Renovators have justified their concerns about the additional costs of complying with the EPA RRP Rule based on two different but interdependent reasons.  First is the cost to the business.  Businesses that do comply have to pay to become a certified firm, pay training fees for the required certified renovator training, pay the wages of the certified renovator while he/she trains non-certified workers, pay the wages of employees while they attend training, and must purchase all of the tools, related equipment and personal protection equipment needed by workers to do the work.   Second, they cite the additional labor and material costs to perform the work.  

These additional costs might not be all that burdensome if all contractors doing RRP work shared the same burdens and where able to recover these costs through the selling prices of their jobs.  But, the additional costs become an extreme burden for many businesses if and when they are in competition with illegally operating businesses that avoid the additional costs and therefore are offering lower prices to consumers.  Many contractors are reporting that the additional costs are putting them out of business.

Ready for some more bad news?   The costs of compliance are likely to go up even higher, for complying businesses as well as for consumers. 

• First, the proposed dust wipe amendment, if approved, will definitely increase projects costs and will result in delaying when the consumer can get back into the renovated space. 
• Second, in addition to the costs related to the dust wipe testing, because contained areas cannot be re-inhabited until the tests show no lead dust, consumers may need to seek alternate living arrangements while waiting for test results to come back from laboratories. 
• Third, because of the lack of a cost effective lead test kit that will recognize lead based on the legal definition of lead equal to or in excess of 1.0 mg/cm\2\ or 0.5% by weight, many projects that would not require lead safe practices must still be performed using lead-safe practices. 

Here is excerpt from the final rule preamble:

“Number of events and individuals affected: In the first year that all of the rule requirements will be in effect, there will be an estimated 8.4 million renovation, repair, and painting events where lead-safe work practices will be used due to the rule. As a result, there will be approximately 1.4 million children under the age of 6 who will be affected by having their exposure to lead dust minimized due to the rule. There will also be about 5.4 million adults who will be affected. After improved test kits for determining whether a painted surface contains lead-based paint become available (which is assumed in the analysis to occur by the second year of the rule), the number of renovation, repair, and painting events using lead-safe work practices is expected to drop to 4.4 million events per year. No change in the number of exposures avoided due to the rule is expected because the improved test kit will more accurately identify paint without lead, thus reducing the number of events unnecessarily using the required work practices.”

So, because the EPA falsely assumed that the improved test kits would be available by September 2010, 4.4 million RRP projects will bear the additional cost of lead-safe practices that would not be required if the improved test kits were available.  That one bad assumption by EPA, based on the bogus and underestimated average additional cost of $35 per project, will result in $140 million in additional costs for projects “unnecessarily using the required work practices”.   What do you think about that?   What would consumers think about that?