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.

RRP Rule: Is it a Sheep in Wolf's Clothing?

One Person’s Opinion: This is a guest blog submitted by Joe Levitch of Levco Builders to express his opinion.  Joe is a remodeling contractor and he is also a Licensed Lead Inspector, Licensed Risk assessor  and the owner of Lead Locators, a lead inspection firm in Boise Idaho. He comments and contributes to RRPedia quite often.  If you would like to express your opinion or offer something of value for RRPedia visitors let me know.

Wolf in Sheep's Clothing?

It has been 2 years now and the EPA's RRP rule has been an enigma to deal with. What I envisioned as game changing regulation has turned out to be a sheep in wolfs clothing. I expected a year of educating the public through infomercials and campaigns, Then some head turning enforcement. Sadly I was and have been consistently disappointed. I expected my fellow remodelers to understand intuitively that the old days of dusty demolition were over and adopt the new rules, but there I go again over estimating my industry.

Resistance to change seems to dominate

Turns out remodelers like everyone else wants to do as little as possible and get by. Change is painful I suppose, most would rather spend energy disputing scientific facts than getting their act together and incorporating lead testing and LSWP into their SOP'S.

I have talked till blue in the face about the federal law and the mandate that RRP imposed back in April of 2010 but in my little hamlet of Boise Idaho there has been no known enforcement. I do see a trend however in the industry. We are getting a few more requests to verify contractors are using Best Practices when LSWP is in process. I am also getting an up tic in the number of test requests for lead testing, so the news is not all bad.

There have been a few reports of fines, but they are not close to home or particularly relevant to the remodeling industry. Most are for failure to use the Renovate Right Booklet. OSHA has become a bit more worrisome to contractors than it used to be. Their requirements are far more burdensome and onerous. I seriously doubt many remodeling firms are in compliance with their rules.

Contractors are "Leaded-Out"

I still sense a general disdain for the RRP rule along with general confusion, but a reluctant sluggish move towards compliance.

I set up a Lead Awareness committee for my NARI group and after an enthusiastic push to get everyone up to date and compliant, I was told to back off with the education and speakers " We are a little leaded-out right now"

I have had no problem explaining to my clients that lead testing saves money. Perhaps it is just the delivery I use? Doing leaded work has been difficult. I can see how one can develop heat exhaustion or worse in little or no time. Monitor your folks for hydration and schedule cooling off time.

On testing and the Opt-Out

I am saddened by remodeling organizations asking congress to repeal RRP or allow opt out. It is a huge step backwards. Having swabs check for lead in drywall and plaster was a foolish thing to allow too. I read that there is a 98% false positive when used in this way. That is why the EPA could care less. (Click here for clarity on false positives)

The swabs test for the presence of lead. We don't need to do LSWP unless there is over 1mg/cm 2.  3M is laughing all the way to the bank, homeowners and contractors alike are using LSWP unnecessarily in many cases now.

My advice to every remodeler is to find a company with an XRF that can do a test and produce a report that can be used as a tool to deal with lead above the regulatory limit. Get fluent in using LSWP. Check each other to make sure no one is poisoning their clients or their pets and lets be professional about it.

My company has teamed up with some painters that are certified firms and have done testing on all proposed renovations on all pre '78 homes. Many of them are leaded, most have only a few components that require LSWP. We have also had tiles tested and found a many of them to be leaded in a very high percentage. I believe tile should be assumed to be leaded and demolished with care.

Let's do the right thing

In closing I applaud those that have incorporated RRP into their business. The EPA has been looking into new ways to track compliance and performing enforcement. I encourage those that are resisting change to get on board before the EPA fines you, or worse, you make someone sick.  Ask those of us that are dealing with the rule how we have managed and let's set ourselves apart from our competition by doing the right thing.

Is Low Level Exposure To Lead A Big Deal?  Here is Your Answer…

Before you decide to use the RRP Opt Out if/when it comes back, consider the information below.  Will you, your clients, their kids and your employees be at risk if you do not use lead-safe work practices?

 While the toxicity associated with exposure to high levels of lead was recognized by the ancient Greeks and Romans, the adverse health effects associated with low-level lead exposure only became widely recognized in the second half of the 20th century.  Over the past 40 years, epidemiological studies, particularly in children, continue to provide evidence of health effects at lower and lower blood lead levels.

The National Toxicology Program (NTP) concludes that there is sufficient evidence for adverse health effects in children and adults at blood Pb levels below 10μg/dL and below 5μg/dL as well.  The table below provides a summary of effect by life stage at which the effect is identified.

Note: This information was found in a document published by NTP titled:

Draft NTP Monograph on Health Effects of Low-Level Lead, dated 10/14/11

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?

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