Current State of the RRP Rule; An EPA performance Report Card
Back in April of 2012 I published a blog where I offered a report card on how I thought the EPA was doing regarding the RRP Rule. In this blog I offer an update on the RRP Rule as of October 2013. I had prepared and presented this information at the Lead & Healthy Housing Northeast Regional ConferenceLead & Healthy Housing Northeast Regional Conference on October 9, 2013 in Mystic, CT.
Overall the performance of the EPA has continued to be dismal.
As you will see from the information I provide below, due to the lack of accountability and the poor business practices of EPA, the purpose of the rule, to protect children from lead poisoning due to renovations, has definitely been compromised. Many, including me, are also of the opinion that due to EPA's handling of the rule more children are at risk of lead poisoning.
I hope by sharing this information, those who are in favor of protecting children from the dangers of lead due to renovations will make it a strategic priority to hold EPA accountable to rethink the practicality of the rule. Hold them accountable to establishing and using objective metrics that measure EPA and the rule's performance. And, most importantly, to make sure if performance objectives are not achieved those responsible for those objectives will be identified and removed from their positions. The health and well-being of our nation's children are too important to tolerate the kind of performance the EPA has demonstrated to date. If you agree, make sure you speak to your political representatives and get their commitment to hold EPA accountable.
The following is my summary of the state of the RRP Rule and EPA's performance to date, separated by subject categories:
Subject: Outreach about the Rule:
- On April 1, 2012 I gave the EPA a “D”, now I give them an “F”
- 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.
- According to a survey done by Professional Remodeler magazine, published in February 2012, 65% of remodelers surveyed estimated that less than 10% of their potential clients were aware of the rule.
On an early 2012 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 were 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…
- If EPA's outreach efforts have not produced adequate results so far, perhaps those assigned to design and implement the outreach tactics need to be held accountable to established desired results. Spending money on outreach efforts without also measuring results is not a sound strategy for success.
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.
- On April 1, 1012 I gave the EPA an “F”. It’s still an “F”
- Before the rule came into effect EPA stated it estimated 211,000 firms engaged in renovation, repair and painting needed to become certified firms. They also recognized there were other businesses that would need to become certified firms.
- In the first two years post-RRP rule (ending in April 2012), the EPA expected 284,000 firm certifications. Only 100,000 firms were certified, or 35% of those expected.
- As of April 2012 EPA’s EPA web site claimed that EPA had certified 97,746 firms (118,885 firms including those approved by authorized states).
- I could not find a recent number of certified firms on the EPA web site
- According to a report by the Joint Center for Housing Studies at Harvard University, in 2007 more than 650,000 businesses received a majority of their revenue by providing remodeling services. The pie chart below is from the report.
- The Harvard numbers do 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 also many illegally operating contractors, operating under the radar, which did not make it into the census count.
- Also, the count does not appear to consider other related business types such as plumbers, electricians, wood floor refinishers, exterminators (20,000), landlords, property management firms, banks that own foreclosed properties, housing authorities, or cities/towns and municipalities (18,443).
Subject: Enforcement
- There are 13 states that have taken over the rule so far. That leaves 37 states plus American Samoa, District of Columbia, Guam, US Virgin Islands and Puerto Rico under administration and enforcement by EPA.
- On April 1, 2012 I gave the EPA an “F”. It’s still an “F”
- As of April 2012 EPA had only published one enforcement action. Several have been published since then.
- I could not find a current number of enforcement actions. I think the state of Massachusetts, which took over the rule in Massachusetts, as one state has done much more enforcement than EPA.
- Without a plan for adequate enforcement and the money to finance adequate enforcement, the rule in its current state is not a practical solution for protecting children.
- Without adequate enforcement, complying business are essentially being punished while non-complying businesses enjoy a financial advantage in the marketplace. This problem is also facilitated due to the lack of effective public outreach.
Subject: Protecting Children
- On April 1, 1012 I gave the EPA an “Incomplete”. It’s still incomplete. So, because they haven’t provided any objective metrics, they now get an “F” from me.
- It is a fact that lead is poisonous and RRP activities can cause lead poisoning.
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”.
- EPA still has no way to know if the RRP rule is making a difference or not.
- Without knowing where EPA started and where we are now that the rule has been in place, 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 warned by the stakeholders before the rule came into place, the RRP Rule has fostered an underground economy of contractors purposely ignoring the rule to keep prices down and improve their ability to sell jobs.
Subject: Costs vs. Benefits
Note: Info below is directly from an EPA Office of Inspector General Report dated 7/25/12 titled: “Review of Hotline Complaint Concerning Cost and Benefit Estimates for EPA’s Lead-Based Paint Rule”
- Although EPA stated that its economic analysis underwent extensive intra-Agency review and was approved by the Office of Management Budget prior to publication, EPA used limited data to develop its cost and benefit estimates for the Lead Rule.
- The estimated cleaning and containment work practice costs to comply with the rule were not based on a statistically valid survey.
- EPA did not quantitatively analyze or include other costs outlined in Agency guidance, such as costs due to increased consumer prices, costs of unemployment, and costs to markets indirectly affected by the rule.
- EPA did not include the cost to renovation businesses of securing additional liability insurance.
- EPA recommended additional work practices in a training program that, while not required by the rule, would likely result in additional cost because the regulated community would view these practices as required.
***From EPA FAQ: “And because EPA’s estimates reflect the cost to contractors, not the price paid by homeowners, the estimates do not include the contractor’s mark-up for profits."
- The report clearly stated:
- “Sound data on the rule’s benefits were not available at the time of the rulemaking, and this limitation was known to EPA and its scientific advisory committee. However, EPA went forward with the rule because its benefit-cost analysis indicated that the rule generated substantial benefits, and because EPA was legally obligated to issue the rule.”
- “In our opinion, the data limitations in EPA’s analyses limit the reliability of the rule’s stated cost and benefits.
- “We recommend that EPA reexamine the costs and benefits of the 2008 Lead Rule and the 2010 amendment to determine whether the rule should be modified, streamlined, expanded, or repealed.
- In 2011, President Obama’s Executive Order 13563, Improving Regulation and Regulatory Review, directed all federal agencies to develop plans for periodically reviewing existing regulations to determine whether any should be modified, streamlined, expanded, or repealed.
- The 2008 Lead Rule and the 2010 amendment were not included in the scope of EPA’s regulatory review activities as required under Executive Order 13563.
Because EPA did not do an accurate estimate of program costs and revenues when they set their original fees, money coming in to support rule administration is not coming anywhere close to the actual costs. If EPA were a for profit business they would already have gone out of business when it comes to RRP. But, because the EPA and its leadership are not held to the same standards as for-profit businesses and business leaders, not only will they be allowed to continue operations, those at EPA who are responsible for the RRP rule get to keep their jobs and paychecks, despite such dismal performance. And, rather than concentrate on fixing their business plan to create financial health, EPA can simply charge their customers more money. The problem is that their customers, those who must comply with the rule, do not have any other options they can choose from to do business with. 
The report pointed out three issues contributing to the EPA’s unrecovered costs.
The press release alleges that the violations occurred while James J. Welch & Co., Inc. was acting as the general contractor performing renovations on a project at the former Frisbee School in Kittery, Maine. At the time of the renovation the Kittery site was a child-occupied facility and therefore was subject to Renovation, Repair and Painting (RRP) Rule. 
In Feb. 2012, after receiving the anonymous tip, the EPA and the Maine Department of Environmental Protection performed an inspection of the site. Based on the inspection, EPA determined that the general contractor did not ensure that a company hired as a subcontractor to replace windows at the school, New Hampshire Glass, was complying with the required work practices required under the RRP Rule. 
The nightmare both of these businesses are going through should serve as a warning for other business owners. Both general contractors and sub contractors need to know each other’s responsibilities when it comes to compliance with the RRP Rule. By understanding the rule the GC and the sub can then come to an agreement about who will do what and when they will do it to make sure that both of them are in compliance while doing the work, as well as creating and maintaining all required paperwork and documentation. If you do not already have these things under control at your business I suggest you read my September 3, 2010 RRPedia blog titled: 
Since the EPA RRP rule came into effect in April of 2010 renovation contractors have debated and bantered the topic of doing lead testing before they offer to sell and or perform renovations at pre 1978 properties. Due to 
Often discussions on these topics get passionate when contractors express their concerns about the liability they feel the rule exposes them and their businesses to even if they follow the rule and comply with all of its lead safe work practices and documentation requirements. Many contractors feel the EPA should have written some level of protection from liability into the rule for those renovators who abide by it. 
Time it takes to do the testing and fill out the paperwork
There are typically no easy answers to these considerations or guaranteed ways contractors can sell and do their work to prevent the possibility of liability. That said education about the considerations and available options is probably the best way for contractors to protect themselves and their business.
