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.

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

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.

NARI Letter Submitted to Senate about RRP Rule Speaks to Contractor Concerns

In a recent letter submitted to the US Senate, NARI Executive Director Mary Busey Harris did a great job advising the EPA of critical concerns legitimate remodelers have about the EPA’s creation, enforcement and administration of the RRP Lead Rule.   The letter points out that law abiding professional remodelers are particularly challenged by two considerations having to do with the additional costs related to the current rule as well as the proposed dust wipe amendment.  Here is an excerpt from the letter:

"Currently, EPA estimates that more than 500,000 individuals have been trained on how to comply with LRRP. Despite EPA’s training success, we are witnessing two disturbing trends that threaten our livelihood and potentially endanger homeowners and children.

First, the cost increase for remodeling projects done in full compliance with EPA regulations is causing homeowners to hire unlicensed contractors or to do construction work themselves. This situation endangers children who may be exposed to lead caused by unsafe work practices.

Second, EPA is expected to finalize the “clearance” portion of the LRRP rules this July. NARI is concerned that EPA will lack sensitivity towards the impact pricing has on hiring licensed and certified contractors. The rules, if finalized with overly burdensome requirements, may drive up costs and exacerbate the problems we are currently witnessing – driving more homeowners towards unlicensed or unethical contractors."

In the letter Harris points out that NARI would like to work with the Committee on Small Business & Entrepreneurship to “reiterate to EPA the impact LRRP is having on remodelers and to facilitate a better dialogue on how EPA can implement the LRRP rules in a small business-friendly way”  She further goes on to suggest that;  ”With the Committee’s help, remodelers and EPA officials can work towards solutions that will better inform homeowners of lead hazards, penalize unlicensed or unethical contractors, and reduce the exposure of children to lead from construction activities”

I commend NARI for reaching out to work with government officials regarding the EPA RRP Lead Rule in a constructive and thoughtful way.  I hope the Senate and the Committee on Small Business & Entrepreneurship will embrace NARI’s offer.  The remodeling industry and remodelers need their voices to be heard.  Even more important, EPA needs to listen if the RRP rule is to be effective and our government is truly interested in protecting America’s children as well as professional remodelers from the negative effects of the underground economy.

EPA Releases Penalty Guidelines for RRP Enforcement

The EPA recently released a new government document, titled the Consolidated Enforcement Response and Penalty Policy (ERPP), laying out enforcement and penalty guidelines for the Renovation, Repair and Painting (RRP) rule.  The guidelines were announced in a memorandum from Rosemarie A. Kelly, Director of the U.S. EPA Waste and Chemical Enforcement Division, on Office of Enforcement and Compliance Assurance letterhead.  The memorandum was dated August 19, 2010.  The new policy was created because even though the RRP ruling was issued in April 2010, enforcement and penalty issues were not clearly defined and articulated in the ruling then.

In the memorandum, Rosemarie A. Kelly states:

"This Policy sets forth guidance for Agency officials to use in determining the appropriate enforcement response and penalty amounts for violations of Section 409 of TSCA resulting from failure or refusal to comply with provisions of the Pre-Renovation Education Rule (PRE Rule); Renovation, Repair and Painting Rule (RRP Rule); and Lead-Based Paint Activates, Certification and Training Rule (LBP Activities Rule). "

I suggest you check out the introduction section in the policy document.  Although the policy document is intended to provide guidelines for EPA Enforcement staff, the document introduction also states: 

"Enforcement staff should continue to make appropriate case-by-case enforcement judgments, guided by, but not restricted or limited to, the policies contained in this document”

View or download the the enforcement guidelines document (ERPP).

View or download the Final RRP Rule with Preamble

View or download the amendment regarding the Opt-Out and Record Keeping Provisions

View or download the June 18, 2010 memo delaying enforcement of certain certification requirements

EPA Gives Status of RRP Training and Certification Counts at June LEHA Workshop

The Lead and Environmental Hazard Association (LEHA) has been conducting a series of workshops across the country.   I attended the June 22, 2010 workshop held in Marlboro MA.  The workshops bring together representatives from federal, state and local agencies to discuss the RRP rule with interested parties including renovation contractors, lead inspectors and others in the industry providing services and or products related to the RRP.  The workshop was well attended and very informative.   The state of Massachusetts' Department of Occupational Safety (DOS) has taken delegated authority and enforcement of the rule from EPA.  Several representatives from DOS and the state were in attendance and participated in the workshop as panelists.

David Merrick, NARI Government Affairs Committee Chairman, and several others from NARI attended one of the workshops on Friday, July 23 in Baltimore.   Also present at that workshop was the region 3 EPA Regional Lead Enforcement Coordinator, Annie Skidmore.

 
At the meeting EPA's Annie Skidmore brought everyone up-to-date with the latest numbers (as of the June 22nd workshop) from the EPA regarding the RRP.  Thanks to David Merrick for sharing this information with me:

• 411,000 people have completed RRP Certified Renovator training.

• 40,000 firms have completed firm certification with 10-20,000 applications in the pipeline.

• EPA acknowledged that their initial estimate of the number of firms that will need to be certified and the number of workers that will need to be trained was way off the mark.  The EPA now says the 40,000 firms that are certified represent about 20% of the firms that will need to be certified.

• There are a total of 282 Certified Training Providers, many of which travel and train nationally.

• A total of 17,800 training courses have been held.

In an announcement by the EPA on Thursday last week, Hybrivet Systems, makers of LeadCheck® Swabs, received confirmation that their test kits will continue to be recognized for use on RRP related work.  The announcement serves to put closure on any rumors or fears that their test kit might not be approved after September of this year.  As of this post, LeadCheck is still the only EPA approved test kit that can be used by a certified renovator to test for the presence of lead on RRP projects.

As discussed in the preamble of the final RRP Rule, EPA desires to have a test kit that will identify whether the amount of lead present on a surface is above or below the federally regulated level of lead in paint.  The presence of lead in amounts less than 1.0 mg/cm2 or 0.5 percent by weight is considered below the action level requiring the use of the RRP work practices.  Lead in amounts equal to or higher than the action level would trigger the RRP requirements. 

Currently, existing tests only identify whether lead is present or not.  In September 2009, EPA accepted applications from four vendors for the evaluation of their lead test kits through EPA's ETV program. The goal was to identify test kits that would not only verify that lead was not present at all, but also would identify the presence of lead or not based on the action level amount.  According to the announcement on the EPA web site; “Because no new kits meet both the false negative and false positive criteria, EPA will continue to recognize the LeadCheck® test kit and the State of Massachusetts lead test kit.”  (The Massachusetts test kit is not commercially available)  One other manufacturer’s test kit will likely be approved after EPA reviews the final report on their kit. EPA anticipates that this test kit will also be recognized as meeting the false negative criterion.

Hybrivet Systems, Inc was founded by Marcia Stone, PhD, in 1987.   Marcia Stone created LeadCheck® Swabs 23 years ago after learning of children suffering from lead poisoning from exposure in their own homes. She combined years of scientific knowledge and experience to create an instant read lead detection tool to help protect families. 

I visited with the Hybrivet Systems team on July 22^ndat their place of business in Natick MA to learn more about the company and their LeadCheck® Swabs.   I was very impressed with the company and its product.  I was even more impressed by the personal desire and mission Marcia Stone has to help protect the health and well being of families and especially children.  According to Marcia; “Our goal for 20 years has been to dramatically reduce lead-poisoning, especially in children where the effects are most severe and permanent.  Our continued recognition as the only test kit in the EPA RRP program has given us greater reach to accomplish our goal, and we’re excited to be able to provide contractors with a low cost, easy to use, and accurate test kit to help with compliance to this rule.   We are also excited about our position to help the states that are administering their own lead program, including our home state of Massachusetts.”

Trainers and renovators have been expressing some confusion about the EPA approved lead test kits.  The confusion revolves around whether the current test kits can still be used and/or if and when they might be replaced.

7/15/10: The following is the most recent information and communication about EPA approved lead test kits sent from EPA Headquarters in DC to each of the EPA regions. 

EPA Communication to EPA Region Headquarters:

"I wanted to take this opportunity to clarify an RRP issue because I understand that there may be some mis-information that may have been given out to training providers.  I understand that training providers have been told they should not buy a lot of the currently available test kits because they will not be valid after September 1.  This is incorrect.  I would appreciate it if you would ask your staff to clarify this with the training providers in particular.

 Background on Test Kits

• EPA has recognized two Phase 1 test kits (LeadCheck and State of Massachusetts kit) for use in determining if there is lead-based paint in target housing and child-occupied facilities.  These are currently being used by renovators and in renovator training classes.
• These kits will continue to be recognized until EPA recognizes Phase 2 kits.  The Phase 1 kits do not automatically sunset on September 1 or any other date in the absence of approved Phase 2 kits.
• EPA, under the Office of Research and Development’s (ORD) Envirnomental Testing Verification (ETV) process is currently evaluating 4 test kits for the Phase 2 criteria.  At this time we do not know if any of the kits will pass.

 We should have results in late July and will share that with you and post the preliminary results on the web."

Note: This information was shared with me by Joe Moriarty of LeadCheck.  LeadCheck^® Swabs is the only EPA recognized rapid lead detection product available for RRP use by EPA Certified Renovators.

There has been a lot of confusion regarding the recent announcements, delays, amendments and proposed amendments related to the EPA RRP Rule.  Many of these are explained and clarified in several articles that can be found here on this RRPedia page under the tag heading of "EPA RRP Rule Updates" found in the blue box on the right side of this web page. 

For additional RRPedia postings and updates, be sure to subscribe to this page to receive e-mail notifications of new postings as they happen.

This article is intended to remind you of a variety of new considerations that take effect on July 6th, 2010 due to the Amendment to the Opt-out and Recordkeeping Provisions in the Renovation, Repair, and Painting Program [RIN 2070-AJ55]. 

Below are considerations you should be aware of and be prepared for.  I have also provided some suggestions to help you. None of this information should be considered as all inclusive and or as legal advice.  I recommend you qualify and seek additional legal advice about this information from qualified legal counsel.  Contractors should also have any documentation they use to comply with the RRP Rule reviewed by legal counsel prior to use.

For clarification, the June 18, 2010 memo delaying enforcement of certain certification requirements does not have any effect on these new considerations:

1. As of July 6th, the home owner opt-out provision will no longer be available for use on RRP covered renovations.

• a. Even if the contract for the work was signed prior to July 6^th and/or the project has already been started, the RRP Rule work practices and documentation requirements must be followed starting July 6^th
• b. If, before midnight on July 5^th, you can complete any work or demolition that disturbs painted surfaces on projects where you already had a signed opt-out from the homeowner, I suggest you do so to avoid the additional costs to comply and/or the risks associated with operating in violation of the RRP Rule.
• c. As I have stated in other articles here on RRPedia, a signed opt-out would still not relieve you from potential liability should the work you do and/or how you do it causes lead contamination and/or lead poisoning.
• d. As an extra level of protection for you, your business, your employees, your customer and/or the occupants of the space you are renovating; if you plan to use the strategy suggested in item "1b" above, I suggest you still do the post renovation cleaning and cleaning verification procedure as required under the RRP Rule before restarting work again on July 6^th.
• e. Beginning July 6^th, 2010, as long as the work you do does not disturb any painted surfaces, you can precede using traditional work practices.
• f. To avoid any confusion, I also recommend you remove the opt-out information from whatever pre-renovation form you use to document delivery of the Renovate Right pamphlet.

2. There are also new requirements regarding documentation. Beginning July 6th, 2010, when the final invoice for the renovation is delivered, or within 30 days of the completion of the renovation, whichever is earlier, the renovation firm must provide information demonstrating compliance with the training and work practice requirements of the RRP rule to the owner of the building being renovated and, if different, to the occupants of the renovated housing or the operator of the child-occupied facility.

• a. For renovations in common areas of target housing, the renovation firm must provide the occupants of the affected housing units instructions on how to review or obtain this information from the renovation firm at no charge to the occupant. These instructions must be included in the notice provided to each affected unit or on signs posted in common areas. Similar requirements apply for renovations in child-occupied facilities.
• b. The renovation firm is also required to provide interested parents or guardians of children using the child-occupied facility instructions on how to review or obtain a copy of these records at no cost to the parents or guardians. This could be accomplished by mailing or hand delivering these instructions, or by including them on the signs posted.
• c. Renovation firms must provide training and work practice information to owners and occupants. The information should be provided in a short, easily read checklist or other form. EPA's "Sample Renovation Recordkeeping Checklist'' may be used for this purpose, but firms may develop their own forms or checklists so long as they include all of the required information.

• d. The specific information that is required to be provided are training and work practice compliance information, as well as identifying information on the manufacturer and model of the test kits used, if any, a description of the components that were tested including their locations, and the test kit results.
• e. The checklist or form must include documentation that a certified renovator was assigned to the project, that the certified renovator provided on-the-job training for workers used on the project, that the certified renovator performed or directed workers who performed the tasks required by the RRP rule, and that the certified renovator performed the post-renovation cleaning verification.
• f. This documentation must include a certification by the certified renovator that the work practices were followed, with narration as applicable.
• g. EPA is not requiring that the renovation firm automatically provide a copy of the certified renovator's training certificate, which must be maintained in the firm's records as an attachment to the checklist or other form.

If you are looking for forms and signage to help you with comply with the EPA RRP rule, I recommend you check out what The Lead Paint Forms Store has to offer.