Wisconsin DHS Has Approved LeadCheck Test Kits for RRP Use

According to a letter sent to 3M on Wednesday June 27, 2012 by the Bureau of Environmental and Occupational Health, the state of Wisconsin has just approved the use of 3M’s LeadCheck test kit for use under the state’s Lead Safe Renovation Rule.   Wisconsin is one of the states that has taken over enforcement and administration of the RRP rule from EPA.  They did so on April 22, 2010.

How and why it was approved

After review of regulatory requirements and test kit performance measures the Wisconsin Department of Health Services  has concluded that the 3M LeadCheck test kit can reliably determine that lead-based paint is not present on wood, ferrous metal (alloys that contain iron), drywall and plaster substrates.

According to the letter: “Therefore, immediately, the Department recognizes the 3M LeadCheck paint test kit for use in Wisconsin limited to the negative response criteria under s.DHS 163.16 (2) (a) when performed by certified lead-safe renovators following the manufacturer’s instructions.”

According to the letter the Department has determined that using the negative response criterion alone is as protective of human health and the environment because a false positive would require a renovator to follow the lead-safe renovations when they would not have been necessary and therefore would be overly protective rather than less protective of human health and the environment.

Still hoping for a reliable and affordable quantitative test kit

Still hoping for a test kit that meets both the negative and positive response criteria, the letter clarifies that this recognition will remain in place until such time a kit that does both becomes available.   The current test kits are only accurate enough to determine whether lead is present or not (qualitative test), not indicate how much lead is present (qualitative).  

EPA had assumed a reliable quantitative test kit would be available by September of 2012 when it wrote their RRP Rule, but no kits with that ability have been recognized by EPA or any other state program.  According to EPA’s own research, the lack of a quantitative test kit has doubled the number of projects requiring lead-safe work practices, projects that otherwise would not have required those practices if a quantitative test kit were available. Read this RRPedia article for more clarification on this subject.

The Department plans to place Information about the new recognition on the lead program website and will provide information about the recognition to all Wisconsin training providers offering accredited lead-safe renovation courses.  As of posting this blog the department’s website did not have information about the test kit recognition.

Update 7/11/12:

Information about the test kit recognition and approved method of use has been posted to the department's web site.

Guidelines for Wisconsin Renovators

For the benefit of those working on target housing and child occupied facilities in Wisconsin, the DHS offers the following guidance documents for those who must comply with the state’s Lead-Safe Renovation Rule.

Guidelines for Certified Abatement Workers and Supervisors

Guidelines for Renovation Contractors and Painters

Guidelines for Plumbers, HVAC, Fire Control

Guidelines for Rental Property Managers

Federal Court Denies Elimination of RRP Opt-Out

On June 22 a federal court denied the petition filed by several construction industry trade groups to review the EPA’s amendment to the RRP Rule that eliminated the “opt-out” provision originally included in the rule.

The original petition was filed in November 2011, led by the NAHB. The National Lumber and Building Material Dealers Association, the Window & Door Manufacturers Association, and the Hearth, Patio & Barbecue Association also joined in with NAHB for the petition.

You can read the full decision by the U.S. Court of Appeals for the District of Columbia here.  

Looking for hope?

Renovators and others hoping for the return of the opt-out still have reason for hope for the return of the RRP opt-out because of the Lead Exposure Amendments Act of 2012.  Two separate bills were introduced in the Senate and House earlier this year by Sen. James Inhofe, R-Okla., and Reps. John Sullivan, R-Okla., and Tim Murphy, R-Pa.  Learn about the most recent Amendment Act introduced on June 7th here.

NARI is working for Remodeler relief as well

NARI Government Affairs Committee Chairman David Merrick, MCR, UDCP, will testify Wednesday, June 27 at 1 p.m. Eastern before the House Small Business Committee on the topic of "Regulatory Flexibility Act Compliance: Is EPA Failing Small Business?"  The focus of the hearing will be how the EPA plans to handle LRRP in relation to commercial construction. Merrick will also address NARI concerns about LRRP and residential construction.

NARI members are encouraged to send letters of support, using the NARI template you can find here. Letters will become part of the hearing record.

NARI Members can fax letters to (202) 226-5276 by June 29. Please also fax a copy to NARI National at (847) 298-9225 or e-mail a copy to gac@nari.org. 

Merrick's testimony will be streamed live and viewable on-demand on the committee's Website at 1 p.m. Eastern time. 

The Committee will also hear testimony from Keith W. Holman, Legal and Policy Counsel, U.S. Chamber of Commerce, Environment, Technology and Regulatory Affairs Division, Washington, DC; Frank Knapp, South Carolina Small Business Chamber of Commerce, Columbia, SC; and Jeff Brediger, Director of Utilities, Orrville Utilities, Orrville, OH;

Updates on MA RRP Rule From The MA Department of Labor Standards

As EPA amends the RRP rule, renovators working in states that have taken over the rule from EPA need to know if and how these states incorporate the changes into their own rule.   Yesterday I inquired with the State of Massachusetts to find out about a few recent amendments and changes.

One of the good things about the state of Massachusetts taking over the RRP rule is that communications with the Department of Labor Standards (DLS) is much easier and much quicker than trying to get answers from EPA.  I also find their staff is much more informed and always helpful.  The Q&A below was conducted completely via email (I sent the questions out of the blue) and I got a complete and what I would call an intuitive response in less than 4 hours!  Credit to the DLS!

Here is the Q&A

Question: Can you tell me if MA allows the lead safe renovation supervisor to take paint chip samples same as EPA does?

DLS Answer: Massachusetts incorporates the federal protocol by reference in our regulation. LSR Supervisors are authorized to sample painted surfaces in accordance with their training.  Of course, they must do adequate sampling for different painting histories of surfaces, document their findings, maintain records of testing and provide documentation to the property owner as required.

Question: Does MA require that the firm provide the renovation checklist to owners and tenants within 30 days of completion of final billing, whichever comes first (just like EPA)?

DLS Answer: Yes. DLS has the same documentation requirements as the federal rule.

Question:  EPA requires towns and municipalities to become certified firms and have Certified Renovators before doing their own RRP work on town properties that are target housing and or Child Occupied Facilities.   They can however hire out the work to a Certified Firm and therefore would not need to be a Certified Firm if the work is hired out to one.  Does the Massachusetts law follow the same requirements?

DLS Answer:  Yes. Massachusetts mirrors the requirement but offers the opportunity for the fee to be waived for property owners with trained employees working on their own properties.

You can find them listed on our LSRC list published on the DLS web pages.

Question: Also, does MA now recognize LeadCheck for Drywall and Plaster?

DLS Answer: Yes.  But as usual, there is a caveat which is also applicable at the federal level.  When the trained individual takes a sample – s/he must follow the prescribed protocols.  In order to take advantage of the new approval; they must follow the new testing methods and adequately test surfaces.  In some cases, many samples must be taken in order to effectively disclude the work under the rule.

Training Providers will likely being teaching the new methods, however, those who were previously trained will need to justify that they know how to sample in order to validate their findings.  Of course, the safest path is to presume the presence of lead.

Question: Any other updates or clarifications I should know about?

DLS Answer: I know you are aware that DLS has been doing enforcement and civil penalties.  We are still interested to have the regulated community provide us feedback to provide better regulations.  I don’t have a specific date but we will certainly let you know when we are going back to public hearings to update our regulation.

Its spring and we are in the field doing compliance checks.

Guest Blog: RRP Opt-Out, Don’t Hold Your Breath...

BIO:  Dean Lovvorn is a residential remodeler who has done numerous RRP projects.  He is also a Lead Inspector, Lead Risk Assessor and EPA RRP Renovator Instructor.

RRP Opt-Out, Don’t Hold Your Breath...

There has been a lot of chatter about the recent Lead Reduction Amendments Act of 2012, where the Senate bill proposes to return the Opt-Out to the Renovation, Repair and Painting (RRP) Rule.  You can find this topic on most every contractor message board.  The bill was introduced by Senator Inhofe (R-OK) and is co-sponsored by several other republicans.  NARI, NAHB, and many other contractor organizations have praised the efforts of Senator Inhofe.

The big question, is should contractors get their hopes up?

The Probabilities

The first thing you should consider is that all bills introduced must first go to committee.  The second thing you should realize is that the vast majority of bills introduced … will never get out of committee review and thus, will never get a chance to be voted on.  Thirdly, even if the bill gets voted on, it must be approved by the majority of Senators (in this bill’s case).  Lastly, even if passed by the Senate; the House & President must approve.

It is a long uphill battle.  You also need to realize that most bills introduced are simply grand standing.  A way to get attention and show those who give money to your campaign or vote you into office … that you are doing something. 

Where RRP Came From

The grandparent of RRP is Title X of the Housing and Community Development Act of 1992, also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X).  The grandparents gave birth to the parent of RRP, Title IV—Lead Exposure Reduction, which amended the Toxic Substances Control Act (TSCA).

What is not often talked about is where “Section 402(c)(3) of the Toxic Substances Control Act (TSCA) requires EPA to regulate renovation or remodeling activities in target housing (most pre-1978 housing), pre-1978 public buildings, and commercial buildings that create lead-based paint hazards“.  The RRP falls under the TSCA, Section 402 (c)(3).

Conclusion

To put it simply, we need to come to grips that the RRP is most likely going to be required on public and commercial buildings.  Public and commercial buildings have adults in them.  Would it make sense to Opt-Out adults in target homes, but not Opt-Out adults in public and commercial buildings?  Unfortunately, the answer is most likely not.

So for those who are hoping for the Opt-Out to return, prayers may be in order.  It may be the only thing that has a chance.

Lumber and Building Materials Dealers Lobby Congress on RRP Lead Paint Rule

ProSales Magazine reports that building material dealers from across the nation visited Capitol Hill on March 6^th, 2012 to urge Congress to reconsider RRP regulations. The visits were organized by the National Lumber & Building Material Dealers Association (NLBMDA). (Read full story here)  The visits followed a morning gathering at the group's annual Legislative Conference in which Sen. John Hoeven, R-N.D., and Rep. Greg Walden, R-Ore., both criticized the EPA, the arm of government responsible for the lead-paint rule, for hurting business. 

"I wish we had an EPA that was helpful ... as opposed to the 'gotcha' approach, writing tough regulations…  The best thing you could do for the environment is to have a strong economy. ... It seems the EPA has a disconnect on that."

Greg Walden, R-Ore.

Craig Webb, editor at ProSales reported that NLBMDA's criticism of RRP centers on three issues:

1. An opt-out provision that had been slated to be part of the  regulation but was removed on the day it became final,

2. the trustworthiness of lead-paint dust detection kits,

3. and what NLBMDA regards as "misdirected enforcement" of the rule.

Those same three issues are addressed in the recent legislation introduced by Sen. James Inhofe, R-Okla in his bill titled “the ‘‘Lead Exposure Reduction Amendments Act of 2012’’.  (See this previous RRPedia post for more) Webb said NLBMDA's first priority during the Hill visits was to support the bill, encourage other Senators to co-sign it, and help to get companion legislation introduced in the House of Representatives.

According to Webb the dealers focused on the fact that, with the opt-in provision, the RRP would have affected 38 million homes, but taking that op-out option means 79 million homes were subject to the rule.  In July 2010, NLBMDA and several other trade groups sued EPA for removing the opt-out rule, arguing that the agency had acted without any new scientific data and before the rule had even taken effect.

Contractors affected by the RRP rule have definitely benefited from the efforts of trade groups like NLBMDA.   Lumber and building materials dealers who join such associations and become involved and proactive on important issues like the RRP rule stand out as true partners for the entire remodeling industry.   Credit also to Craig Webb and ProSales Magazine for staying on top of these efforts and reporting them so all will know.

92% of NARI Membership Supports Return of RRP Opt Out

A recent survey by the National Association of the Remodeling Industry shows that a full majority of members responding to the survey agreed with the proposed return of the Opt Out provision of the RRP rule.

According to a March 2, 2012 press release NARI members overwhelmingly agreed (92%) that restoring the opt-out to the rule made the most sense for both the remodeling professional and the homeowner.  “I truly believe that as professional remodelers, we must be cognizant of our customer’s health and safety. However, once they are educated concerning lead hazards, ultimately, they should be able to make their own decisions regarding this issue,” advised a member who responded to the survey.  

In another NARI survey of homeowners, deployed in June 2011, 51% of homeowners agreed with the statement, “I want the option to opt-out of the EPA’s RRP regulations.”

Here is the survey question the NARI Government Affairs committee sent out:

"In 2008, EPA finalized its EPA's Lead Renovation, Repair and Painting (LRRP) rules with an 'opt-out' provision that would have allowed homeowners to waive special work practices if there were no pregnant women or children under 6 living in the home. Two years later, EPA decided to remove the opt-out provision. Should NARI support legislation that restores the "opt-out" provision?"

The NARI press release also clarified that NARI continues to work actively with the EPA on ways the agency can educate the public on the importance of hiring EPA-certified remodelers to do work on homes built before 1978. NARI has been and continues to push the agency for tougher enforcement of the rules to crack down on firms lacking the required EPA certification that are violating the rule and failing to protect homeowners.

Christopher Wright, CR, NARI’s Government Affairs Committee vice chair, added: “EPA’s current rules add costs to remodeling jobs regardless of whether people are at risk.  Higher costs, without an obvious link to protecting children and pregnant women, has prompted most home owners to do work themselves or to hire non-licensed contractors."

NARI also referred to President Obama’s Regulatory Reform Initiative requiring a top-to-bottom review of federal regulations to get rid of rules that are outdated and harmful to the economy.  The association takes the position that LRRP should be reformed to better accomplish its stated goal: to eliminate lead hazards in the home as a result of renovation activities.

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?

A Few Steps in the Right Direction Regarding the RRP Rule

Legislation introduced by Senator Inhofe (R) will soon be before the US Senate for consideration.  Inhofe introduced Bill 2148, the ‘‘Lead Exposure Reduction Amendments Act of 2012’’.  As well as several other amendments, the bill seeks to reinstate the RRP Opt Out provision that was previously removed when the Sierra Club sued the EPA back in 2009. Inhofe’s bill is also being supported by Senator Vittor (R-LA), Senator Coburn (R-OK), Senator Grassley (R-IA), Senator Blunt (R-MO), and Senator Enzi (R-WY).

The RRP Rule is a mess.  What we really need is a new well thought out rule to replace the existing rule.   We need a new rule that actually makes sense to follow, addresses the real sources of lead poisoning due to RRP activities, and one that takes into account the financial realities of supporting and enforcing such regulation.  And, the remodeling industry needs to be proactive this time in the rule’s writing, its content and its enforcement. 

Unfortunately we are stuck with the RRP Rule. Maybe the best we can do is try to improve upon it.

It is obvious that someone helped Inhofe understand some of the challenges the rule has created for remodelers. That said there are some positive components found in Inhofe’s bill worth recognizing. 

Check out this one in regards to reinstating the opt out provision.  It adds language to protect the contractor if the homeowner provides false information:

LIMITATION OF CONTRACTOR LIABILITY.—A contractor that receives written certification described in subparagraph (B)(ii) shall be exempt from liability resulting from any misrepresentation of the owner of the target housing.

This one prevents EPA from fining a certified firm that has created the proper documentation required, but made clerical errors filling it out, something several firms claim they have already been taken to task for by EPA:

APPLICABILITY OF CERTAIN PENALTIES.—Any regulation promulgated by the Administrator under this section requiring the submission of documentation to the Administrator shall provide— ‘‘(A) an exemption from penalty for a person who—‘‘(i) is submitting the required documentation for the first time; and‘‘(ii) submits documentation that contains de minimus or typographical errors, as determined by the Administrator; and‘‘(B) a process by which a person described in subparagraph (A) may resubmit the required documentation.

This one requires EPA to actually use science to justify its position regarding any future RRP related regulations related to residential as well as commercial properties:

STUDY OF CERTIFICATION.—‘‘(A) IN GENERAL.—Prior to proposing any new regulation applicable to target housing or public or commercial buildings constructed before 1978, the Administrator shall conduct a study of the extent to which persons engaged in various types of renovation and remodeling activities in the target housing or public or commercial buildings constructed before 1978— ‘‘(i) are exposed to lead in the conduct of those activities; or ‘‘(ii) disturb lead and create a lead based paint hazard on a regular or occasional basis.

Don’t Be Mislead By the Vote to Cut Off RRP Enforcement Funding

On July 13, 2011 the House Appropriations Committee voted to cut off funding for enforcement of the RRP Rule until a reliable test kit is recognized by EPA.  The amendment was included in the House Appropriations Bill by Representative Denny Rehberg (R-Mont.).   

Note: For clarification, a “reliable test kit” means a test kit that would be able to determine if a painted or coated surface contains lead equal to or in excess of 1.0 milligrams per square centimeter (mg/cm2) or 0.5% by weight.   The current test kits will reliably indicate whether the surface contains any lead or not, but do not measure the amount of lead. 

Unfortunately, as a result of the vote many renovators are now assuming that they no longer need to comply with the RRP rule and do not have to use lead-safe work practices on pre-1978 target housing and child occupied facilities.  If you are a renovator making that assumption it would be a big mistake that could cost you big time.  Let me explain.

First, any cut or stoppage of enforcement would only apply to states where EPA administers and enforces the rule.  It would not have any effect at all in those states that have assumed administration and enforcement of the rule from EPA. 

Regarding the vote, it is an amendment added to a proposed bill which must go before the full House and Senate for approval.  Even if approved in the House and Senate it must then be sent to the president for his signature before passing.  The president signing it, at least in my opinion, is not very likely.  Obama had a lot to do with why the rule exists to begin with.

Even if the amendment to the rule were to go into effect, all it would do is take away the money EPA has to fund enforcement.  It would not eliminate the rule.   If and when a reliable test kit were to be eventually recognized by EPA, and finally made it to the marketplace, enforcement funding would then become available again.

EPA can eventually get you anyway:
Keep in mind that the rule requires that renovators keep all required documentation and that it be available for EPA audit for 3 years.   That means EPA can retroactively enforce the rule 3 years back.  If and when enforcement happens, all EPA needs to do is ask to see a renovators documentation to determine whether all the regulated work performed during that 3 year period was properly documented, met the rule’s requirements and that property owners and/or tenants received the required Renovate Right pamphlet, any lead testing results documentation as well as a copy of the required renovation checklist. Remember, the fine is up to $37,500 per violation per day!

Property Owners, Tenants and Parents can get you anytime:
Also, keep in mind that even if EPA can’t or doesn’t enforce the rule, your customers, their neighbors and the parents of children attending a child occupied facility can still sue you for not following the law.  And, as a business, if accused, you are considered guilty until you prove you and your business is innocent at your own expense, money you cannot recoup in court. 

Plus, one fact that many business owners may not be aware of is that, under the rule, the business owner can be held civilly liable for violating the rule.    Don’t assume you are personally protected just because of the legal status of your business.

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.