http://online.wsj.com/article/SB10001424052748704895204575320880925552208.html?mod=WSJ_hps_MIDDLESixthNews

By STEPHEN POWER

WASHINGTON—The Environmental Protection Agency has decided to delay enforcing a new lead-paint regulation following pressure from home builders and members of Congress.

The rule would require contractors who work in older homes to become certified by a government-approved trainer and follow a series of safety precautions.

The delay follows an outcry from businesses and trade groups, including the National Association of Home Builders, Home Depot Inc. and Lowe’s Cos., as well as lawmakers in both parties. Industry groups charged the regulation would drive up costs and expose contractors to fines and litigation. Some also contended the regulation could derail Washington’s efforts to promote energy efficiency because EPA has not approved enough instructors for the required training programs.

The regulation took effect in April and covers tens of millions of homes built decades ago. It aims to reduce the amount of lead dust created during home renovation and repair. Some of the precautions for contractors include covering floors with plastic sheeting and dressing workers in protective clothing. The regulation would also have driven up costs for homeowners, though the amounts have been a point of dispute between the industry and the EPA.

A soft, bluish metallic element, lead was often used as an ingredient by paint manufacturers decades ago. The EPA says lead-based paint was used in more than 38 million homes until the government banned it from housing in 1978.

The average concentration of lead in the blood of young children has fallen sharply since then, but EPA officials say too many are still being poisoned by lead-based paint in their homes. The agency says that from 1999 through 2004, about 285,000 children between the ages of one and five years were estimated to have elevated lead levels in their blood each year.

In a memorandum to EPA regional offices on Friday, Cynthia Giles, the EPA’s assistant administrator for enforcement, said the agency will not take enforcement action against renovation and repair firms for violations of the rule’s certification requirement until October. For individual renovation workers, the agency will not take enforcement action as long as those workers have applied for, or enrolled in, training classes by Sept. 30.

Ms. Giles said the agency continues to believe “a disturbing number of America’s children are…poisoned by lead-based paint in their homes,” resulting in learning and behavioral disorders. But she acknowledged concerns raised by home-repair firms about a shortage of government-approved trainers, as well as “numerous disaster declarations” in some areas that have heightened demand for home repairs. Industry groups and some lawmakers calling for a relaxation of the rule said it threatened to slow recovery from Tennessee floods in May.

In a statement Monday, the National Association of Home Builders welcomed the EPA’s move, saying the agency “listened to our concerns and did the right thing.”

The EPA has also come under fire from Congress. Last month, the Senate voted 60 to 37 to bar the EPA from fining companies or individuals found to have violated the rule, a rare instance of Republicans and Democrats supporting legislation to limit the EPA’s power.

In a statement, one of the co-sponsors of that legislation, Sen. James Inhofe (R., Okla.) said he was “pleased that the EPA listened to the clear bipartisan message sent by the Senate that the implementation of the lead-based paint rule was a disaster.”

The rule’s supporters expressed dismay Monday about the EPA’s decision to delay enforcement.

“Industry voices have apparently drowned out those of our nation’s children who bear the long-term ramifications of lead exposure,” said Rebecca Morley, executive director of the nonprofit National Center for Healthy Housing.

Ms. Morley said she was relieved, however, the EPA will continue to enforce certain work-practice rules, such as those requiring the use of special equipment filters during renovations and repairs.

Again, the XRF testing that I plan to use IS third-party testing and yet it is done in hours not days. No one I've spoken with thinks it will in anyway be an "end all" for liability. Instead, it is just another safe-guard layer in the event that things turn to the courts wherein you can show that you exercised appropriate due-diligence to identify (or rule out) as many possible risks as current technology will allow.

I think Andy could be referring to the Clearance Test in lieu of Cleaning Verification (CV). XRF, paint chip sampling or swab testing would be done prior to work beginning. Currently a Clearance Test has to be performed by a 3rd party on federal money target projects but a CV is allowed by Certified Renovators on non-gov't money target projects. With a Clearance Test a 3rd party takes wipe samples (particularly checking floors, sill and troughs but can check other locations) and sends the wipes off to a lab. The estimated turnaround is at least 48 hours on results. During this time, occupants cannot re-enter the building.

As of this morning, the RRP Rule is in full legal effect for all pre-1978 structures and anyone who works on or in them. The EPA held true to their word that no matter how few people were trained; how few they had processed for registration; and how murky some of the provisions still were, that they absolutely, positively would not in any way delay or postpone the implementation and subsequent enforcement of this regulation. So here it is along with it’s potentially bankrupting fines.

Now for the fun part (not really) … The EPA has also said all along that they were going to remove the opt-out clause by the official launch date. And sure enough, there was an announcement on the RRP home page this morning, that in fact, the provision had been struck down … for about 45 minutes! Almost as fast as it went up, it was pulled down and disappeared. Apparently, someone at the EPA neglected to officially enter the change into the Federal Register which is the only way that a law can officially be changed.

So, as of right now, the opt-out clause IS viable and legal. BUT … as soon as it gets entered into the Register and has the required public notifications, etc. it will again be a non-option for us. To make matters even more confusing, there is now talk floating around that they may consider some type of phase-out period since it is legal now and soon won’t be, thus giving people time to adjust. But I’ve also heard from DC politico types that they are simply going to do a hard date with zero grace period.

Confused yet?!? Yeah, me too. That’s pretty much how this entire debacle has gone. So, if you have a client that isn’t pregnant and doesn’t have children under six in residence and they aren’t worried about lead, they can sign it all away … for today. Next week however, well that’s a different story. Stay tuned …

>> Andy – 3 days is in reference to the “Third party testing” that many are espousing as the end all for liability which is frankly quite funny. <<

Again, the XRF testing that I plan to use IS third-party testing and yet it is done in hours not days. No one I've spoken with thinks it will in anyway be an "end all" for liability. Instead, it is just another safe-guard layer in the event that things turn to the courts wherein you can show that you exercised appropriate due-diligence to identify (or rule out) as many possible risks as current technology will allow. A hazmat attorney I've been speaking with for several months put it this way, "A federally certified RA with a $20k x-ray machine, a written report, and thousands of test to his credit is fairly hard to shoot-down in a trial. But "Bubba Contractor" with a one-day course and a $10 swab kit from Home Depot on the other hand, would be a piece of cake." So, following such a blunt assessment, my goal is just to make sure that my company does not become "Bubba Contractor" by undertaking this ourselves.

>> Get ready for part 2 of the Sierra Club settlement. It was agreed to be implemented on April 2011, after they go through the mandatory Public Comment period.<<

I haven't heard about any additional settlement terms. Can you please share what you know about this so that we can have as much advance notice as possible if there is yet more to come.

>> Testing – I suggest you also look at this from the Homeowners POV also. Remember the regulation specifically states that nothing in it can force a homeowner to have testing done. http://blog.sls-construction.com/?p=443 (to test or not to test)<<

I never intended to imply that a HO could be forced to test. I'm just saying that our company policy will be to require it if they choose to work with us. I know that's a decision with consequences for the HO and we have disclosed those (and will contiue to) during any discussion about testing. So while I am sensitive to their situation, at the end of the day, my financial and professional responsibility is to my company and ensuring its long term sustainability for my family and those of the people we employ. In my opinion, potentially putting our company at a serious legal disadvantage or other high risk situation for the benefit of the client would be akin to saying that we weren't going to carry proper insurances so that we would save on overhead costs and could then pass along a lower price to the client.

>> Organizations support it, why don’t you or are you just not as smart? Interesting thinking on your part, so were they right when some of these organizations were supporting illegal aliens working in the building trades & blocking legislation? How many other times have we had two different organizations on opposite sides – which one is dumb? <<

My point of the trade associations was simply that lots of people with lots of experience and subject knowledge are taking this very seriously for the reasons I've previously mentioned. I didn't intend that to come across as any type of commentary about your intelligence. If that's how it read, then I apologize. Of course there are "two sides" to any situation, and this is no different. Some folks view this regulation (and it's potential consequences to our businesses) lightly and chose to proceed accordingly. That's fine if that works for them. My point was simply that there are many others who have serious concerns about the situations this may create for those of us in the contracting world and they are recommending certain courses of action (i.e. testing and not assuming) which they feel will be in our safest interest.

>> You need to really look at & understand the issue, before you can come down on one side or the other. For the most part they are playing politics – we might lose clout (members, support, etc…), because certain people will paint us out as baby killers or we do not care about children. <<

I hope that it's pretty clear by this point that I have looked at this issue in great detail. I have also met with local and federal legislators at length, as well as with the regional director of our EPA field office. I don't think too many people in the contracting world are viewing this from a political or public relations ("baby killer") angle. There may be some in other arenas with that outlook. However, the trade groups and business owners I interact with are simply trying to figure out how we can do the right thing by the laws as they've been handed to us and at the same time guide our companies as prudently and responsibly as possible so that we're all still growing and thriving 10 or 15 years from now when the inevitable class-action wave begins to come to a head.

>> Sorry, but I really doubt this regulation will help one child. I can even back that up with the EPA’s numbers and words, history, and a good dose of common sense and logic. <<

I don't think I'd get into that debate with the EPA trying to use their own numbers against them, but that's your fight to pick. If it does end up helping someone (even just one) then great. If it doesn't then there's nothing we can do about that either. We simply have to comply to the best of our abilities and protect our livelihoods with whatever best-practices we can determine while still trying to deliver the finished results that our clients are hiring us to produce.

>> If you truly believe that this is one of the best regulations to come down the pike, you might want to ask why they didn’t even bother informing people of these best practices 10+ years ago when they were trying to develop it. <<

If you got that from anything I've written so far, then you've been reading the wrong blog. From design, to contractor education and certification, to public awareness, to final implementation, I think that the EPA (despite it's best intentions) has bungled this whole thing in practically every way possible. The rule goes into effect in 72 hours and yet there are STILL states that don't even have a single certified training provider (let alone actually certified contractors). Their own estimates said that for successful implementation roughly 200,000+ firms will need to be certified (out of over 800,000 businesses in the US which classify themselves as "contractors") and yet their most recent press release says that they "hope" to have 100,000 certified by the end of this week. But even with this acknowledgement, they still refuse to delay the start date or offer any kind of grace period. Believe me, I am NOT a proponent of how this is being dropped in our laps, regardless of any possible societal benefits (which we won't be able to quantify for years or even decades). But debating the actuality of it is like debating whether rain is wet … pointless. All we can do is respond as carefully and professionally as we know how and hope for the best results for everyone involved (except maybe the trial lawyers !!).

So in summary, if you don’t want to test, then don’t. If you don’t want to create a situation where the HO may have to disclose lead presence down the road, then don’t. If you find RRP funny, then that’s cool if that’s what gets you through the day. We all have our own views on life. I’m not saying that mine is the perfect approach. I am just suggesting another possible option for the other tradespeople who frequent this site. One which has been carefully crafted from dozens and dozens of conversations, meetings, and phone calls in the last year with folks from all sides of this issue (legal, political, insurance, trade, municipal enforcement, etc., etc., etc.). At the end of the day, we each have to make our own calls about what we think is best for the companies we’re trying to build and the clients we hope to be fortunate enough to work with for years to come.

Andy – 3 days is in reference to the “Third party testing” that many are espousing as the end all for liability which is frankly quite funny. Get ready for part 2 of the Sierra Club settlement. It was agreed to be implemented on April 2011, after they go through the mandatory Public Comment period.

Testing – I suggest you also look at this from the Homeowners POV also. Remember the regulation specifically states that nothing in it can force a homeowner to have testing done. http://blog.sls-construction.com/?p=443 (to test or not to test)

Organizations support it, why don’t you or are you just not as smart? Interesting thinking on your part, so were they right when some of these organizations were supporting illegal aliens working in the building trades & blocking legislation? How many other times have we had two different organizations on opposite sides – which one is dumb? You need to really look at & understand the issue, before you can come down on one side or the other. For the most part they are playing politics – we might lose clout (members, support, etc…), because certain people will paint us out as baby killers or we do not care about children.

Sorry, but I really doubt this regulation will help one child. I can even back that up with the EPA’s numbers and words, history, and a good dose of common sense and logic. If you truly believe that this is one of the best regulations to come down the pike, you might want to ask why they didn’t even bother informing people of these best practices 10+ years ago when they were trying to develop it.

Sean indicated there were a few little errors in a blog by Shawn. If you are referring to one of my blogs I would be grateful if you pointed out what needed to be corrected. There certainly has been a lot of mis-information distributed out there about this rule; I don’t want to be on that list.

Regarding your comments on testing; I don’t think anyone expects third party testing to become mandatory in the near future. However, many industry experts and legal counsels have said that prudent firms will use it to cover their bases to the greatest extent possible.

As for the 3-5 day “locked out” period, I guess you need to read up on the XRF testing that I mentioned in an earlier post. XRF stands for X-Ray Flourescence and it is a hand-held x-ray machine (looks similar to the radar guns the police use) and a qualified Registered Assessor can go through an entire house in a matter of hours and one or two rooms in a matter of minutes. They can check every surface (doors, windows, trim, walls, cabinets) and “look through” as many as 10 or 15 layers of paint. Then they can give you immediate results on the spot regarding the presence of lead. The better ones will also follow up with a written report within 24-48 hours. So the homeowner is never “locked out” of any part of their home; whether they open doors or not is irrelevant; the test is far more sophisticated than being concerned with dust; and they certainly won’t have any hotels in their future because of testing.

THE SINGLE BIGGEST AND BEST REASON TO TEST FIRST IS THIS:
One of the best kept secrets about this whole process is that MOST homes from the mid-1940′s on don’t have ANY lead paint on their interiors (mid-1960′s for the exteriors). That information comes from a company we work with which has done over 9,000 XRF lead building certifications. They report that at least 80% of the pre-1978 properties they test have NO lead on the interior. The EPA just picked 1978 as the date when we can ASSUME lead-free WITHOUT testing … but they never say anything about WITH testing.

Of all the MANY ways that the EPA has bungled this whole process, the single biggest one (in my opinion) is by teaching everyone to automatically ASSUME lead in anything pre-1978 (and then jump through all their requirements) rather than teaching us to simply TEST FIRST, thus saving upwards of 80% of the headaches, hassles, and liabilities they’re forcing on us.

So think about it, for a few hundred dollars up front (billable to the building owner) it’s possible to safely and LEGALLY exempt close to EIGHTY-PERCENT of all your pre-1978 projects from the regulations entirely!! That means no assumptions, no headaches, no daily documentation, NO INCREASED LIABILITY down the road, etc., etc. etc. After a clean certification, you just price and conduct the project like any other.

CONVERSELY … if the results do come back positive, then you have WRITTEN proof to show your client why they should be concerned and why your price is fully justified in being adjusted/increased. This should also knock out any of your less-prepared competition that’s going to try to undercut you by skirting the law. The homeowner will now know they can’t (shouldn’t) go that route and will know they have a legitimate issue in their homes that needs to be handled (and paid for) appropriately.

And, if you still don’t want to deal with the lead liability at all, you can now at least make an INFORMED decision based in fact. Rather than just walking away from anything pre-1978 based on a random blanket company policy, you can still pursue the majority of those jobs for your company and simply explain to the remaining minority that your company has elected not to pursue projects with known lead existence. (80% of something vs. 100% of nothing…)

Little River – is that Steve or Shawn? As an FYI, Shawn’s blog has a few little errors on it, (last time I checked) just like most blogs, news reports, etc… All I can say is read the full regulation linked to from the EPA’s site (you will be redirected to the ECFR site)

As for the lawsuits, you have always been faced with that. The EPA has limited and increased your exposure for getting sued all in one shot. If you are worried about getting sued, all you can do is protect your assets with an insurance policy that will protect you.

As for the EPA’s prices sounds about right, you might want to remember all that paperwork, filling time, slowed down work, additional prep work, increased cleaning time (especially the 1 hour wait time at the end of the day before you start it – waiting for all the dust to settle), etc… As for when the procedures end – that is after you are done disturbing any “suspect” areas and have passed your cleaning verification