NARI Member Testifies Before Small Business Committee About Frustrations With EPA

Yesterday, David Merrick, chairman of the NARI Government Affairs Committee and owner of Merrick Design and Build, testified before the House Small Business Committee about many of the concerns remodelers' have about the RRP Rule and the difficulties trying to effectively work with EPA.  I think David’s testimony spoke for the opinions of most NARI Members as well as for most remodelers.  Let me know what you think.

Click here to view the entire video which was just over one hour long.  David’s introduction and his testimony begin at about 19:50.

Here are some highlights I pulled from watching the video myself.

In response to questions posed by a representative overseeing the SBA (Ms. Peters?), David stands up for and points out the realities and challenges for smaller one or two man remodeling businesses starting at about 30:28. David stressed the burden record keeping has on such smaller businesses just trying to earn enough money within the time they have to produce their product, pointing out that even if they are doing the right things regarding the work they perform, they can be punished by EPA for paperwork challenges.

Many might miss this watching the video, but I think it exposes the lack of understanding many of those in our government have about the nature of the remodeling industry and the businesses that participate in the industry.  The same representative overseeing the SBA (Ms. Peters?) made the following comment at about 33:10 in what I observed to be an obvious effort to be sarcastic;

“And when I get my bid from a contractor on remodeling should I triple the time and double the money?  (She laughs) Just Kidding…”

Perhaps, like many contractors, EPA has a problem under estimating and under bidding?

At 58:56 Mr. Tipton asks: “So, effectively what you are saying is if the EPA is asking for input maybe it would be a good idea if they listened?   To that question Merrick replied that the EPA is always gracious about meeting with NARI and taking their input, but he further clarifies his response by commenting “They take our comments and disappear behind doors and we never hear from them again.”

I think it is worth listening to the balance of the video after Merrick’s comment to hear Mr. Tipton’s comments and opinions in support of more sensible oversight of EPA’s tactics, behavior, attitudes and performance.

Give EPA more money?

During the hearing there was much banter regarding whether EPA needs more money to effectively regulate or alternately should get less money because of their poor performance.  I think they are missing the point.   We don’t have more money to give EPA unless we take it from somewhere else or borrow it from China and put the burden of paying for the borrowed money on our children’s future.  Maybe many of the the same children the rule is intended to protect.

Here is one example.  During the hearing Merrick points out That currently only 122,476 firms in the remodeling sector are considered EPA Lead-Certified Firms, out of the estimated 652,206 remodeling businesses in the United States.  Has EPA done a good job in the past 26 months since the rule took effect if 80% of remodeling contractors are still operating uncertified?  Are they really keeping our children safe from lead poisoning with the plan they assembled knowing the reality of available funding?

I think it goes back to original planning.  Try this analogy. 

The simple way to put it is it’s great to figure out and plan for a nice seafood lobster dinner, but if you get to the store and you don’t have enough money then all that planning on a great seafood dinner is kind of wasted.  My suggestion is that the way EPA went about creating this rule is rather silly especially because they just don’t have the funding or the budget to administer and enforce the rule the way the rule was written.

Perhaps if EPA really understood our industry and how contractors operate, they would have considered a Design/Build approach!

Thanks David.

Click here for a NARI Press Release about the hearing

EPA Report Card:  How well are they doing with the RRP Rule?

Many news outlets and politicians have been using report card scores to express how well they think people, government policies and regulations are performing.   Several politicians, government employees and even our president have provided their own self assessment scores as well.  It is almost two years now since the EPA RRP Rule went into effect.   I thought I would offer my own report card on how I think the EPA has performed so far in four areas regarding the RRP Rule.  EPA is welcome to offer their own self assessment score.

Subject: Outreach about the rule

EPA has claimed to have done extensive outreach to consumers and the regulated community.  They list a variety of methods used and places where ads and announcements were placed.  

Report Card Score: D-

In reality what they have done has not been effective.  Either the message is not effective, the placement is not effective or both.  According to a survey done by Professional Remodeler magazine 65% of remodelers surveyed estimated that less than 10% of their potential clients are aware of the rule.  Only 5 percent think more than half of homeowners know about it.

On a recent webinar with EPA Officials Regarding RRP Public Awareness and Enforcement Efforts hosted by NCHH, I asked EPA officials if they were doing any tracking to check the actual effectiveness of their outreach efforts.  They are not.  Essentially the answer was that EPA is not a professional marketing organization and has no way of tracking results.   But they said they will be doing more outreach…

Subject: Getting Firms Certified

EPA requires all firms doing renovation, repair and painting work on homes built prior to 1978 become EPA Certified Firms before performing or offering to perform such work.

Report Card Score: F

Before the rule rule came into effect EPA stated; "There are approximately 211,000 firms estimated to become certified to engage in renovation, repair, or painting activities." As of posting this blog EPA’s web site claims that EPA has certified 97,746 firms (118,885 firms including those approved by authorized states).  According to a report by the Joint Center for Housing Studies at Harvard University, the most recent government census showed more than 650,000 businesses received a majority of their revenue by providing remodeling services in 2007 and that number does not include the large number of part-time, semi-retired, and “moonlighting” contractors reporting gross revenues of less than $25,000.   I think we also know there are many illegally operating contractors as well that did not make it into the census count. 

Admittedly not all remodeling companies work on pre-1978 homes.  However, there are many other business types other than remodelers who disturb lead paint.  One example is exterminators.  According to Exterminator.com there are over 20,000 extermination companies in the US.  Others who would need to become certified include landlords, property management firms, banks that own foreclosed properties, housing authorities, cities/towns and municipalities. (According to Google answers there are 18,443 cities, towns, villages, and other such governing groups in the United States, not including any island areas other than Puerto Rico) I am sure you could list other business and entity types that would fall under the rule.  My best guess is that EPA has only certified about 10% of the firms that should be certified and has completely misjudge the number of firms affected by this rule.

As a side note, I contacted EPA to find out how many workers have become Certified Renovators so far.  I was told they are still trying to decide how to count them…

Subject: Enforcement

There are 12 states that have taken over the rule so far.  That leaves 38 states plus American Samoa, District of Columbia, Guam, US Virgin Islands and Puerto Rico under administration and enforcement by EPA. 

Report Card Score: F

So far EPA has only published one violation since the rule came into effect in April of 2010.  On the other hand the state of Massachusetts took over the rule in July of 2012 and has published over 20 violation enforcements to date.

Though not confirmable facts, one commenter on a LinkedIn discussion claimed “there are only 37 Certified Firms in Maui County when there are 1,500+ Licensed Contractors and double to triple unlicensed contractors”.

Industry insiders report EPA has been doing RRP investigations.  EPA claims we will hear more about violations and enforcement very soon.

Subject: Protecting children and others from lead poisoning due to renovations

 “The purpose of the Renovation, Repair, and Painting (RRP) Rule is to minimize exposure from lead-based paint dust during renovation, repair, or painting activities. This is a key effort in reducing the prevalence of childhood lead poisoning, particularly lead poisoning caused by housing contaminated by renovation activities. This will also minimize exposure to older children and adults who are also adversely impacted by lead-based paint dust exposure.”  (From EPA Web site)  

Report Card Score: Incomplete

It is a fact that lead is poisonous and RRP activities can cause poisoning. However, EPA does not know how many children were actually poisoned by RRP activities before the rule came into effect.  If you check any of the data it refers to RRP activities as the “likely source” of lead poisoning, not “the cause”.   That being the case, EPA has no way to know if the RRP rule is making a difference or not.  It is ‘likely” that it is helping.  But, without knowing where EPA started and where we are now that the rule has been in place for almost a year, EPA has no idea if what they have been doing is effective enough and or if or where it can improve effectiveness within the rule. 

Unfortunately, the rule may also be causing more children to be poisoned than before the rule came into effect, because of EPA's inability to adequately enforce it.  As reported in this press release, to keep costs down, consumers are hiring non-certified firms to work on their homes and the required lead safe-practices are not being used.  Also, contractors are reporting that some realtors and insurance adjusters are falsely telling consumers that the rule does not apply at their homes based on location and or for the work they are having done.  All of this has fostered an underground economy of contractors taking advantage of purposely ignoring the rule to keep prices down and improve their ability to sell jobs.

How do you think EPA has been doing with the RRP Rule so far?  Consider using the comment area below to offer your own subjects and report card scores.

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.

Guest Blog: Weighing In On The RRP Opt Out

Guest Blogger: Peter Lawton had his first lead safe training in 1997 while operating his design/build remodeling firm designPLUS in the greater Boston area. Today he is the founder and senior principle trainer for LeadSMART Training Solutions which trains contractors in areas of lead remodeling and OSHA safety standards. His classes are held throughout New England as well as occasionally on the west coast as well.  Peter can be reached at peter@leadsmarttraining.com or visit his training schedule at www.leadsmarttraining.com .

Opt Out..... Weighing In

Both sides of this issue have valid points to consider. Before we make rash decisions have we looked at the entire picture? We can do better than our politicians, but we must think before we act.

Isn't it a bit odd that months before an election some politician comes out of the woodwork and puts forth this bill? Where was this senator a year ago? How much research and thought went into addressing the bigger picture? Are we being used again as pawns by tapping our emotions and not our intelligence for votes? Do you really feel this is all that stands between you and having enough work?

Here are a few questions/comments I believe this bill ignores:

• Whether the Opt Out comes back or not, what about the employees of the firms who intend on using this option? Did anyone ask those who are actually doing the work how they feel about their health risks? Will they have a voice without retaliation?
• Is OSHA going to come up with a "you must protect your workers’ health UNLESS the customer gave you permission to work unprotected" clause? My bet is OSHA will stand firm on 1926.62 (Lead in Construction). In fact, if you have employees, EPA is irrelevant with whatever they decide to do.
• How about extending the OPT OUT to state that the homeowner releases his or her civil right to sue the contractor should anything go wrong?
• For those of you who think this is all BS, how about signing a waiver that says my tax dollars won’t be used to pay for related health care for you, your family, your workers or your clients who might get sick due to the work you perform?
• If any of you perform HUD work, do you really feel they will buckle from their standards?

Anything that can improve our economy is worth looking at. I am not sure this is the answer everyone has been looking for – can’t we come up with a better solution than Bill #S 2148?

I believe this law can create marketing and positioning opportunities to those who see it this way and in the process, keeps everyone safe  – and for those who see it differently, it’s obviously a never ending source of complaints which has divided our industry at a time when we need each others’ back more than ever.

Stay Healthy,

Peter Lawton, President, LeadSMART Training Solutions

Latest Survey on the Impact of the RRP Rule on Businesses

On February 1^st, 2012, Professional Remodeler Magazine released some information they collected from a December 2011 survey they did asking remodelers about how the EPA’s Renovation, Repair and Painting Rule (RRP) has impacted their businesses.   No surprise, the survey indicated negative impact.  64 percent reported they had lost business as a result of the rule.  What seems to consistently rise to the top is the impact of illegal competition from businesses that ignore the rule and its required work practices.

According to the excelent survey summary posted by the magazine’s Editor in Chief, Jonathan Sweet, 46 percent of respondents said less than 10 percent of remodelers in their local market are following the regulations and only 8 percent think more than half of their local competitors are in compliance.

The survey also asked about costs related to RRP.  The EPA says additional costs are $35 to $376, depending on the size and the nature of the project.   According to the survey results, 37 percent said the rule added more than $1000 to the cost of their average project and a full 81 percent said it adds more than $400.  So much for the accuracy of EPA’s estimates.

Again, the survey proved what many have already determined in the past regarding consumer awareness about the rule: very few know anything about it.   According to survey respondents, 65  percent of remodelers estimated that less than 10 percent of their potential clients are aware of the rule and only 5 percent think more than half of homeowners know about it.   This is despite what EPA refers to as extensive consumer outreach.

One interesting observation I made about the survey results is that contractors in the northeast tend to be much more aware of the rule and much more in compliance with the rule than the rest of the country.   For example, according to the survey results, 83 percent of remodelers in the Northeast were the most likely to be certified, compared to 75 percent in the West, 71 percent in the Midwest and 66 percent in the South.   Also, 80 percent of remodelers in the Northeast described themselves as very familiar with the rule, compared to 70 percent in the Midwest and 61 percent in both the South and West. 

In summary, although the survey didn’t seem to provide any new information, its finding are still valuable.  It did demonstrate that EPA has made very little progress getting the regulated community into compliance and with educating consumers about the rule and the reasons for it. 

 The following information is from the NARI Government Affairs Committee’s newsletter of June 23, 2011 titled “NARI on the Hill”.  

NARI Research on LRRP and Clearance Rule 

NARI surveyed remodeling businesses and homeowners nationwide in order to gain a better comprehension about:

• The impact of EPA's current Lead Renovation, Repair and Painting (LRRP) Rule, implemented in April 2010, on business.

• Gaining a better understanding of how a proposed new layer of the EPA LRRP Rule, adding "lead clearance testing" would further affect business.

• Gauging homeowner awareness of, and attitude toward the regulations.

Of the 1,500+ remodeling contractor respondents, only 25% reported doing any lead clearance testing at all. Regardless of cost variations, the majority of respondents reported that significant cost is added to a home improvement project with the addition of lead clearance testing.

In addition, respondents reported that the majority of their homeowner clients were not familiar with the EPA's original LRRP Rule, implemented in April 2010.

77% of respondents indicated that homeowners have sought ways to skirt the rule, by doing parts of the work themselves, or by hiring a non-certified individual to do the work. More than half of homeowner respondents in a separate survey indicated they would like the option to opt out if small children or pregnant women are not living in their home.

Why we did the surveys: We believe what all of you are saying out there, and we've been hearing your comments in blogs, social media, by talking to you directly. However, when trying to bring an issue to light in Washington, officials want current data to review, and providing anecdotal data as heard from third parties is typically seen as not credible, hence the surveys. NARI is sharing results of the research on Capitol Hill that EPA's implementation of the Renovation, Repair, and Painting rules may increase the likelihood of lead poisoning to children, as opposed to lowering the risk. Adding to this risk is the expected forthcoming of the Lead Clearance Rule, which will only exacerbate the problem. Additionally, NARI is reaching out to small business interest groups in Washington and media nationwide to make them aware of the survey results and how the rule is impacting your business.

***For more on NARI’s findings, read this blog article in the Wall Street Journal by Sarah E. Needleman.  The Comments are even more telling as contractors affected by the rule share their opinions.

The following information is from the NARI Government Affairs Committee’s newsletter of June 23, 2011 titled “NARI on the Hill”.  

NARI Work Group Findings on LRRP

From March through June 2011, a dedicated work group of NARI members regularly convened for the purpose of documenting challenges in the application of EPA's Lead Renovation, Repair and Painting Rule (LRRP Rule).  NARI's purpose is to convey to the EPA what is working and what is not working in implementation and to make recommendations.  The work group identified the following prioritized concerns with recommendations:

Concern #1

The rule application is presented as a "one size fits all" and fails to provide guidance on the varying conditions often found on job sites.

Recommendation #1

The EPA should revise the rule to define the desired outcomes and provide a tool box of options to address varying conditions.

Concern #2

The cost of compliance is driving homeowners to either DIY or hire an uncertified renovator thus defeating the purpose and intent of the rule.  Also, the rule does not address the contractor's responsibility when the work of disturbing lead paint has been undertaken and completed by the homeowner or an uncertified contractor. 

Recommendation #2

The EPA needs to educate the general public about the rule, clarify the contractor's responsibility under this scenario, and assess the impact of homeowner-initiated projects on childhood lead poisoning.

Concern #3

The EPA lacks an effective method of providing updates and information on the rule.  The website housing over 600 FAQs is not a feasible communications tool.

Recommendation #3

EPA and states with oversight should provide a regular newsletter with necessary updates.  The website should be overhauled addressing the topical information needs of the user.

Concern #4

The rule is not clear on the training and certification requirements for subcontractors used by the certified renovator.

Recommendation #4

The EPA should clarify the responsibilities of subcontractors and define a "certified renovator of record" as a single point of contact throughout the project. 

Concern #5

The model training program is not consistent with the current rule.  Curriculum and materials do not reflect amendments.

Recommendation #5

The EPA must exercise responsibility in properly maintaining training curriculum and material content.

 Why we convened a Work Group: to inform various entities in Washington about the issues with regard to this regulation.  Since regulatory reform is a hot topic in Washington right now, the time is right to share these findings and garner more support. When trying to bring an issue to light in Washington, officials want current data to review, so the Work Group convened for a current, detailed analysis and NARI is sharing recommendations of the Work Group in Washington.

A copy of the complete report is available by request by e-mailing: gac@nari.org.

Contractors Sound Off About RRP Rule and Dust Wipe Amendment

Thanks to PR activities by NARI, Wall Street Journal Blogger Sarah E. Needleman wrote a blog regarding the increased costs to both contractors and homeowners related to the RRP rule and the potential additional increase in costs should the EPA go forward with its proposed Dust Wipe Clearance amendment.  The article is just one of very few where the media has really taken the time to understand the impact of the RRP rule and provide accurate information for their readers.  Kudos to Needleman!

The blog was posted on June 23, 2011 at 4:35PM.   At the time of writing this, exactly 24 hours later to the minute, there were already over 80 comments left by contractors expressing their opinions and concerns about the rule as well as their disappointment in our government for allowing such a shortsighted regulation. 

Many point out that one of the consequences of the rule is that now more children have been put at risk for lead poisoning; for two reasons.  The first is due to the fact that illegally operating contractors are under-bidding compliant contractors because they are ignoring the required lead-safe work practices and therefore creating lead hazards.  The second is that homeowners are either doing the work themselves and or doing the demolition stage of the work themselves to avoid the added costs related to the rule’s required lead-safe work practices.

As Ben Franklin once said:  “We must all hang together, or assuredly we shall all hang separately.”

I encourage all contractors to check out the blog and leave a comment of their own.  NARI will be using the comments in their efforts to provide evidence of the rule’s impact and negative consequences as they meet with government officials and politicians in their efforts to get the EPA to recognize its shortsighted approaches to the rule. 

Also, I encourage you to check out this RRPedia post for a list of additional ways the rule will affect contractors, homeowners and our great country.  Please consider forwarding a link to this RRPedia blog post to other contractors and homeowners and ask they read about the consequences of the rule; then use what they have learned to add comments at Needleman’s blog.

Here is the link, please copy it and send it to others who can help all of us hang together for our common good!

Follow this link to find out about the negative consequences of the EPA RRP Rule and leave your comments.

Undercover News Investigation Calls Out EPA on Lack of RRP Enforcement

The video below from newsnet5.com offers a good summary of the challenges renovators are up against due to illegal competition and a government that has mandated a law that is meant to protect children without the resources and commitment to follow through. Without enforcement, in addition to causing challenges for complying businesses, the law offers a false sense of security for children and their parents who believe the government is protecting them from lead poisoning.  In fact, as the video points out, the law is in effect actually causing more lead poisoning because of the lower priced illegal contractors who ignore lead-safe work practices.

The RRP rule has definitely contributed to expanding the underground economy in the remodeling industry.   Illegally operating businesses and moonlighters ignoring the rule as well as the required work practices have been stealing work away from legally operating businesses, mostly due to the fact that they can offer much lower prices than those who comply.    This has made it very challenging for many renovators.  It has also put many children at risk of lead poisoning.

At a RRP workshop I attended last week, sponsored by the Lead and Environmental Hazards Association (LEHA), several renovators complained to Mike Wilson of EPA about EPA’s handling so far of the RRP rule.   One after the other renovators cited examples of projects they had lost to other businesses that are ignoring the rule.   Several even reported home owners had laughed at them when they tried discussing the rule and its requirements.    One attendee reported that a homeowner actually told him that he would find another contractor who would ignore the rule as a way of saving money.  It all seemed to be new news to Mike Wilson who told us he oversees RRP Policy, so could not comment specifically about enforcement.  When asked what message he would bring back to the EPA in Washington after the meeting, Mike said he would let them know that regulated contractors wanted a level playing field.   Attendees let Mike know that they have been already giving that same message to EPA, perhaps if Mike delivers the message the leadership at EPA will listen and take action.

Opportunity to Discuss RRP Rule with MA and EPA Officials

The RRP Rule has certainly changed the game for remodelers and remodeling consumers.   I have met with EPA officials in the past to discuss challenges within the rule itself and the challenges created by EPA for those business that are abiding by the rule due to the lack of any serious enforcement to date against violators.  So far, trying to work with EPA has been very frustrating.   Little has been accomplished.  As a result, the underground economy in remodeling has grown, making it difficult for legitimate businesses to compete against it.  This is also in effect poisoning more children as home owners choose to hire non-certified workers who are not using lead-safe practices and or are doing the work themselves without the use of lead-safe practices

On the other hand, since taking over the RRP Rule in MA, working with MA state officials has been much more productive. The Massachusetts Department of Labor Standards (DLS), formally called the Massachusetts Division of Occupational Safety, under the leadership of the department's Director Heather Rowe, has been very receptive to meeting with concerned stakeholders, hearing and recognizing stakeholder's concerns, and working with stakeholders to address their concerns.  Currently, in addition to working on amendments to the RRP regulations in MA to address concerns, the DLS is also finalizing their plans to step up enforcement and compliance actions this spring as the home improvement season begins.  Is it happening as fast as we all might like, no.   However, based on budget and resource realities, I think DLS is doing a good job listening and prioritizing their efforts.

As one way to continue their efforts and interact with stakeholders, the Massachusetts Department of Labor Standards is looking for additional input from contractors and lead industry practitioners in anticipation of making amendments to the MA RRP regulations. An official from this agency will be participating in a May 18 workshop on the RRP Rule being held in Marlborough, MA sponsored by the Lead and Environmental Hazards Association (LEHA) and will be discussing the Department’s plans for revising the RRP regulations as well as the Department's enforcement efforts.

Also participating in the workshop will be a representative from the MA Department of Health's CLPPP office who will discuss the differences between deleading authorization/licensing and RRP certification, as well as a representative from the EPA Office of Pollution Prevention and Toxics - the agency responsible for EPA’s implementation of the RRP Rule. 

Joining the MA and EPA officials will be industry specialists, including myself and public agency representatives from CT, MA, RI and VT who will address:

 -  How the Prescribed Work Practices are stifling innovation, lead by Shawn McCadden  (Read this for more on this topic)
 -  Variations between RRP, Federal/State Work Practices, OSHA Worker Safety Rules
 -  Promotion and Enforcement Strategies, Including the Use of Building Permits 
 -  Delegation of the RRP Rule by New England States

If you are interested in attending the one-day workshop, go to www.rrprule.com for complete agenda, location and registration details.  I hope I will see you there.