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

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;

Congress Introduces Another Amendment to the RRP Rule on June 7, 2012

Today, according to an article by NAHB posted to the website HousingZone, Congressmen John Sullivan (R-Okla.) and Tim Murphy (R-Pa.) introduced H.R. 5911, the Lead Exposure Reduction Amendments Act of 2012, to improve the lead paint rule for remodelers who must comply with the costly work practices and record keeping requirements of the rule.

According to the article the amendment provisions include return of opt-out clause and limitations on expanding the rule.  I am not sure or clear at this time regarding exactly what this new amendment includes or the purpose of the amendment.  However the article indicates that H.R. 5911 is companion legislation to S.2148 introduced in March and responds to concerns from NAHB Remodelers and affiliated trade groups.

According to NAHB, The Lead Exposure Reduction Amendments Act of 2012 will:

• Reinstate the opt-out provision to allow homeowners without small children or pregnant women residing in them to decide whether to require LRRP compliance, not the government.
• Suspend the LRRP if EPA does not approve a commercially available test kit that meets the regulation’s requirements.
• Allow remodelers the “right to cure” paperwork errors found during an inspection.
• Eliminate the “hands-on” recertification training requirements.
• Prohibit EPA from expanding the LRRP to commercial and public buildings until at least one year after the agency conducts a study demonstrating the need for such an action.
• Clarify the definition of “abatement” to specifically exclude remodeling and renovation activities.
• Provide an exemption to the regulation for emergency renovations.

Video Instructions For Testing DryWall and Plaster Using Lead Check

Recently, EPA recognized the LeadCheck Test Kits for testing drywall and plaster for lead under the RRP rule.

Below is an old video with instructions for testing drywall and plaster using LeadCheck.  The video was created by Hybrivet, the manufacturer of LeadCheck before it was recently bought out by the current manufacturer 3M.  This video was produced before the RRP Rule came into effect and before EPA recognized LeadCheck for testing drywall and plaster.  I contacted 3M to see if the video instructions below were accurate for RRP purposes. 

3M reported that they are temporarily using the video until a new video is released.  The major change 3M will make to the video will include the following language:

"Carefully rub the swab around the periphery of the peeled back flap, taking care not to contact the drywall (gypsum) or plaster. Only rub the swab on all layers of paint found on the flap. Do not rub the swab in the pocket."

The current video can be found at the 3M LeadCheck Web site.   As soon as the new video becomes available I will post it here on RRPedia to replace this video.

Using LeadCheck To Test Paint On Drywall (Gypsum) And Plaster Surfaces Is Easy!

EPA has recently updated recognition of the 3M™ LeadCheck™ for use on drywall and plaster.  Below are the specific instructions from the manufacturer, 3M, for conducting testing of drywall and plaster for lead.   These instructions must be followed by the certified renovator for the test results to be recognized under the RRP rule by EPA.  I think the key point to remember when doing such testing is that you are testing the paint, not the drywall:

Instructions for using LeadCheck to test drywall and plaster:

Sulfates present in drywall (gypsum) and plaster dust can interfere with 3M™ LeadCheck™ Swabs color development. It is possible with a minimum amount of care to accurately test for lead paint on plaster surfaces with 3M™ LeadCheck™ Swabs.

a) With a clean utility knife, make a nickel sized half circle cut at a low angle (about 5 degrees) cutting down to the bare drywall (gypsum) and plaster core to expose all layers of paint. Make the cut as seen in figure A.

b) Fold down the semicircular flap with the knife blade so that it forms a pocket.

c) Using an activated 3M™ LeadCheck™ Swab, hold the swab above the cut allowing the 3M™ LeadCheck™ reagent to flow into the pocket making sure that the liquid contacts all layers of paint both in the cut itself and the peeled back flap. Carefully rub the swab around the periphery of the peeled back flap, taking care not to contact the drywall (gypsum) or plaster. Only rub the swab on all layers of paint found on the flap. Do not rub the swab in the pocket.

d) If lead is present, a pink or red color will develop along the edges of the cut, flap, or swab tip usually within 30 seconds.

e) If no pink or red color develops, immediately confirm the negative result by squeezing a drop of the 3M™ LeadCheck™ reagent onto one of the confirmation card dots. It should turn red immediately.

Instructions For Using LeadCheck Lead Test Kits On Drywall And Plaster

EPA has recently updated recognition of the 3M™ LeadCheck™ for use on drywall and plaster. Currently-recognized test kits, with information including substrates upon which they can be used, can be found at http://www.epa.gov/lead/pubs/testkit.htm.

Please note that all EPA-recognized test kits must be used following the manufacturers’ instructions for the applicable substrate.

NOTE: FOR USE ON PLASTER AND DRYWALL, users of 3M™ LeadCheck™ should download updated instructions for using the test kit on plaster and drywall. The updated procedure for testing plaster and drywall is slightly different than the procedure used previously.

Download the instructions here

3M™ LeadCheck™ test kits shipped to retail outlets after April 1, 2012, will contain the updated instructions. Kits purchased prior to April 1, 2012, or that contain the older instructions can still be used but the user must follow the updated instructions when testing plaster and drywall.

LeadCheck Lead Test Kits Now Recognized For Use On Drywall and Plaster

According to the EPA web site 3M's LeadCheck test kit is now recognized for use on drywall and plaster.  This will definitely be helpful for those renovators doing RRP work who prefer using the LeadCheck swabs.  Before EPA recognized the use of the LeadCheck test kits for drywall and plaster, renovators could only use the D-Lead Test Kits, the only other recognized test kit available to RRP renovators.  As a result of this change by EPA, now renovators have their choice of two test kits that are recognized by EPA for use on wood, ferrous metal (alloys that contain iron), or drywall and plaster surfaces under the RRP Rule.

Here is what is now posted on the EPA web site:

• 3M™ LeadCheck™. EPA recognizes that when used by a certified renovator, the 3M™ LeadCheck™ lead test kit can reliably determine that regulated lead-based paint is not present on wood, ferrous metal (alloys that contain iron), or drywall and plaster surfaces. Obtain the National Institute of Standards and Technology (NIST) test kit laboratory evaluation report. Also obtain the 3M™ LeadCheck™ laboratory evaluation report (70 pp, 1.2MB, about PDF). Certified renovators seeking to use the 3M™ LeadCheck™ test kit for purposes of meeting requirements in the RRP rule can purchase the 3M™ LeadCheck™ test kits from either 3M™ LeadCheck™ directly or from certain retail outlets. To order a 3M™ LeadCheck™ test kit call 800-494-3552 or contact 3M™ at leadcheck.com/contactus.

NOTE: The EPA web site also includes a link to a fact sheet on the EPA-recognized test kits (PDF), however EPA has not updated that fact sheet yet to reflect the change.

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.

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?