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Hot Topic: New Lead Safety Rule

The new Lead Renovation, Repair, and Painting Rule (RRP Rule) will take effect April 22, 2010. Like many new government policies, there appears to be a lot of confusion about what this rule means, both in practice and in cost.

According to a recent New York Times article, quoting information apparently supplied by the National Association of Home Builders (NAHB):

Contractors will also be required to invest in vacuums that suck up and trap dust and scaffolding for outdoor projects. Builders estimate the new rule could add $500 to $1,500 per job in time, materials and labor to protect against lead dust migration.

E.P.A. officials, however, said that, except for exterior jobs, following the new work practices would add only $8 to $167 per job.

There’s a huge difference between $1,500.00 and $167.00. Why the confusion?

Most of us in the business, with any common sense, know that we’ll be spending a lot more than $167.00 on HEPA vacuums, plastic sheeting, tape, and disposable clothes (see the Renovate Right brochure), let alone labor and potential testing. But there’s more. Read the article! Stay informed!


29 Responses to “Hot Topic: New Lead Safety Rule”

  1. Little River

    For those that aren’t yet up to speed about this regulation, Shawn McCadden has a great summary written from the residential remodeler’s point of view which addresses many of the common questions and misinformation. There are several errors in the NYT article, so DON”T use that as your info source.

    You can view Shawn’s summary here:

    There are also a ton of good threads on this topic on the NARI, NAHB, and USGBC web sites and Linked-In Forums. If this is the first you’ve heard of this rule, do your research fast and don’t dismiss it. It’s the real deal with real consequences for all of us.

  2. Frank Cabezud

    I took the certification course, I asked the simple question why do I need this $300.00 course?, when part of the EPA rules let owners opt out of following the reg’s. This is what all owners will do when they find out that labor to do a $150-$200 job now cost $300 min-???.
    You will also need some other company to do your disposal.
    All small contractors will be driving the opt out solution, or stop doing remodel’s. The three steps to the new rules:1. get certified with the EPA($300.00) ,2. protect your employees, and 3. opt out.

    • Little River

      Frank, the opt out provision is going to be removed before the final ruling goes into effect in two weeks. That’s part of a settlement the EPA reached last fall as part of a law suit brought by the Sierra Club. Basically the only way to not have to follow the regulations in a pre-1978 structure will be to have the place tested and certified Lead Free. Otherwise, you’re required to assume the presence of lead pre-1978 and follow the rules or risk some pretty ugly liabilities.

  3. Brady Wolf

    Its ironic, but just today, I completed the one-day RRP Certified Renovator training required for remodelers. To say I’m depressed is an understatement. Yes, I passed the test and will be a certified renovator, but that doesn’t leave me feeling all warm and fuzzy. I certainly agree that we need to do a better job with regards to lead dust, but a lot of it doesn’t seem particularly thought through — especially with regards to disposal of lead contaminated debris. The EPA doesn’t classify it as hazardous waste, but they do expect it to be well wrapped in visqueen and such to prevent the dust from spreading when transported from the site, but what about the transfer stations, waste haulers, material recyclers? How will they react when I pull in with a bunch of plastic wrapped “packages” for them?

    The other challenge is that its a bit murky as to “when” during a project are the lead safe practices necessary (just during demolition? the entire project?) Unlike an abatement project where there is a definite start/end to the process, it could be argued that the potential for disrupting lead paint is present throughout the project and that the containment practices have to be in place the entire time (dust doors, no open windows, wiping down horizontal surfaces, disposable Tyvek suits, booties, HEPA filter vacuums only (try that with your chopsaw dust collection …)

    I’m still trying to wrap my arms around the real impact, but I’m concerned about the impact on my costs and ability to compete with non-compliant contractors. It also seems to expose me as the renovator to a lot of liability without giving me practical methods in a number of scenarios.

    And don’t get me started on the amount of paperwork …

    Follow-up: minutes after writing this, I was thinking that this may be a challenge for remodelors, but it would be a great time to buy stock in HEPA filter manufacturers — and low-an-behold what should appear in today’s mail — an ad for Fein’s dust collection systems and HEPA filter vacuums …

  4. Eric L

    Oh, yeah, the Lawyers are going to love this.

    I particularly like this recommendation in the “renovate Right” brochure “Where the project is done by contract, it is a good idea to specify in the contract that the contractor is responsible for re-cleaning if the home, child care facility, or school fails the test”

    Hmmm, am I responsible for all lead discovered on the project site, or just dust created by my work?
    Now my contract will have to state that I will clean as many times as they request, each cleaning is going to cost xx dollars.

    • Little River

      Eric you bring up Lawyers, and Brady before you brought up liability. Forget the EPA fines for a moment, it’s the law suits that are going to be the real bug-a-boo from this whole thing. I have a friend who does malpractice law and he said they (the law firms) are already looking at ways to tweak this into a new class-action category to come after negligent contractors.

      And virtually ALL CGL policies specifically exclude hazardous substance coverage including lead (i.e. we’re all exposed even if we think we have strong commercial insurance policies). There are a handful of insurance companies which offer Hazmat Coverage for people like Asbestos abatement companies, but they are still insanely expensive for the average remodeler.

      All it’s going to take is one disgruntled customer to decide they’re going to leverage this against you, and even if you have all the documentation and followed every step correctly, you could still spend thousands of dollars trying to prove you did everything perfect. And if you didn’t do everything perfect … god help you.

  5. Kreg mcmahon

    Robert ,

    enjoyed reading your article and thank you for the information

  6. Richard

    I don’t think the homeowner will have an option to “opt out”. I was certified 3 weeks ago and according to the instructor the opt out option may soon be removed.

    I know of one company who won’t touch a house built before 1978. That’s their approach to handling the RRP rule.

    Perhaps we should add a “Lead disposal fee” on our bids like they have for Tire disposals and the like. When the homeowner is shocked at the amount give them the number to the EPA and congressmen to complain.

  7. Handyman_Business

    There is has not been enough done to educate contractors or property owners on this new law.

    I took the training back in October and have paid my certification fees.

    When I talk with fellow contractors and trades, very few have heard about RRP. Homeowners are not aware either. This is important to both home occupants and those that work on the homes. I suggest everyone learn as much as they can. The website, I believe is the best source of information.

  8. Brady Wolf

    I’ll be really interested in watching how the large window replacement firms adapt to this — window replacement is particularly prone to disrupting painted surface and lead dust and yet its one of most cut-throat, competitive, hack-prone fields within the residential construction trades … Think about the typical job where all the windows are swapped out … are they going to “contain” the entire house? The next few months will be interesting …

  9. Christopher Wright, CR

    Sorry Frank, but the opt-out is in the process of being removed as part of the settlement of a lawsuit brought by some environmental groups who thought the RRP Rule was not stringent enough in its requirements. Also being considered as part of that settlement is the addition of third party testing at the end of every project.

    The final decision and ruling on the opt-out provision is to be announced the day the rule takes effect, April 22.

  10. Jim Hackett

    Lets face it, non-compliance isn’t an option for established companies and the cost will be have to be passed on to the consumer. The only silver lining might be that unlicensed contractors will be less likely to compete on larger projects or in high visibility areas.

    Assuming the established contractor does everything right, the law still creates an opportunity for either disgruntled homeowners, their attorney’s, or a contractors employees to sue for damages or withhold final payment. Because the contractor will have to prove they are innocent, not the other way around, the only option I can see is to have a third party certify the “entire” property as lead free. This will probably price me out of the (pre-’78) smaller project market, but I feel it’s a business decision I have to make.

    There are a couple of companies in my area that offer whole house lead and asbestos inspections and certifications. The cost appears to be around $2000 now, but I suspect will drop as the business model becomes more streamline and more certification companies emerge. I like the idea of a third party certification because no matter what records I keep, an attorney would try to prove that the records were fabricated, not kept properly, or something. I’m also in an area where new construction building costs run around $400-$600 per foot, so as a percentage it’s not large. The fee will become a pre-construction line item on my bid with the homeowner writing the check directly to the testing company at contract signing in my attempt to help shield some liability. The advantage to the homeowner is that he can use the certification as a sales tool when he goes to sell the house later.

    If a any part of a pre-’78 house tests positive for lead (or asbestos) I’ll contract with an outside company to do the remediation/abatement prior to starting my work. In this way I can attempt to distance myself as much as possible from the ensuing liability wave and record keeping. If anyone sees any fallacy in this approach or has other ideas, please share your thoughts. – Thanks.

    • Little River

      Jim .. I agree completely with the third party testing because we’re going to follow the same model. However, the $2k price tag seems way out of line. We’ve been talking to federally Registered Lead Assessors (“RA” an important title distinction) who can go through an entire house with a hand-held XRF machine and certify in a written report the presence (or lack of) lead both before or after a project.

      We’ve been getting quotes ranging from $350 – $900 in the DC market depending on whether it’s just a few rooms or the whole house. The difference may be whether or not you are talking to companies that already own their own equipment or if they will be renting. The larger companies own their machines because they do more volume, both of which reduces their cost to us.

      We have made it part of our “stump speech” to new prospects that in order for us to consider working on their pre-1978 projects which are large enough to trigger the rules, they need to have the room(s) tested in advance by one of the third-party RA’s we recommend. They hire and pay them directly so that there is no chance later for someone to say that we could have any influence or liability for the results.

      We’ve already had several people chose to pass on us because of this, but in our view, if they don’t want to do it right and are more concerned about $$ than about following the laws we’ve had placed upon us, then they aren’t likely to be a good candidate for us anyway.

  11. Tom

    I think the ones who will benefit most from these regulations will be the attornies with their class action lawsuits. The contractors will have to deal with a lot of the unanswered questions where the regulations aren’t clear, or are open to interpretation (sounds dangerous to me!). It will also make it all the more difficult for homeowners to find people to do small jobs with this regulation in place. I occasionaly do small jobs for people, but with this regulation in place, I feel it isn’t worth the risk to replace a light switch where you have to “disturb the paint” on the switchplate, and suddenly you fall within the purvue of this regulation.

  12. Omax

    I am in the process of replacing my windows, and after getting a bid from a major window company, they must have realized that the windows would be arriving after this cut-off date and so they added on a $117 fee per window. Interestingly, later in the negotiations, they agreed to eat this cost. I decided to have them installed by someone else anyway, and I’m not sure if this person knows / cares about the lead disposal rules, but I will bring it up with him because it sounds like it will a problem during inspections.

    • Gary Katz

      Great contribution to this subject. Great timing, too. Your confusion and decision as a homeowner to use another contractor who may not be knowledgeable about the new RRP requirements, rather than contract with a company who charges an additional fee to comply with the regulation, is part of the problem faced by licensed contractors who follow the rules. Though some contractors and contributors to this magazine (and countless other online forums) maybe disagree with me–and hound you for it! ;)…
      I appreciate your honesty.

  13. John Renza

    Those considering third party testing are on the right track here since it may become mandatory. There are too many scenarios that can cost even the most careful RRP work to fail. Many older homes are already contaminated from previous renovations, and whoever does the latest disturbance will foot the bill for clean up and the liability.

    Years of previous scraping, sanding, and power washing exterior surfaces has tainted the soil. Lead in the soil can be carried into a home via foot traffic, toys, pets. Days after our RRP work is done, the home can become re-contaminated.

    Also, many other household items also contain lead. Plastic blinds made overseas has been proven to contain lead, as well as Christmas tree lights, and extension cords. Remember, it only takes trace amounts for failure, and the burden of proof is on us.

    So, since this has been dropped in our laps, proceed with due caution. The only way to protect ourselves against the liability issue will be third party testing.

  14. Sean

    This is just way too funny. For those looking forward to mandatory third party testing – do you think the Homeowner is going to appreciate being locked out of those area’s for 3 to 5 days and pay $300 for the pleasure? Think about it – you call for testing, they get their either that day, or a day later. They take their samples & send them to a lab which will hopefully have the results back in 2 to 3 days. Sure some places will be faster, but for most of the country, it will take 3 to 5 days to find out that you have supposedly cleaned up or not. What happens if the HO was upstairs banging around or they slam a door & lead dust from another source is kicked up & lands on said surfaces – you failed and now you are stuck paying for another test & probably a hotel room.

    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

    • Little River

      Sean, I guess it helps your outlook that you think this issues is “way too funny” but every other professional firm I’ve worked with across the country as well as every industry trade group (NARI, NKBA, NAHB, USGBC, ASID, etc.) realizes that this is a very serious legal and liability issue for their companies and their members.

      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.

      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…)

      • Gary Katz

        Once again, excellent information. Thank you! Obviously testing FIRST is the only logical thing to do.

  15. Jim Hough

    I have taken the Lead Renovator training and agree with most of what you have written so far. Third party testing may take some liability off of us but it does not clear us. We can be as careful as possible and lead can be tracked in or disturbed after we have had the area tested. People are not being tested for dangerous lead levels prior to our project start date. This will always be the biggest grey area. I believe that dishonest homeowners, insurance companies, and lawyers are the main beneficiaries of the new legislation.
    I believe integrity is improtant and conform to the law as we all should. Lead is hazardous and should be cleaned up reasonably. A few unprofessional and sloppy contractors along with hungry attorneys (growing by leaps and bounds) are the cause of this new thorn in our side. How is it that the government will allow cigarettes and alcohol to be sold to the masses and we are all aware that they kill us? Lead has been in every home that I have ever lived in. The bottom line is we should all clean up well after a renovation, don’t let your kids eat paint chips, and if your walls are in rough shape repaint them.
    The modern day contractor did not create this situation. It is the fault of paint and material manufacturers. Why are they getting off with no consequences? Hmm.
    I‘m very interested in seeing where this leads to the next legal problem for someone who did not cause it.

  16. Shawn McCadden

    Thanks to Little River for mentioning and linking to my site. Many have visited the site as a result. I hope you find it helpful. I just yesturday added an interactive page called RRPedia, feel free to contribute.

    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.

  17. Sean

    Shawn – first an apology for how that was worded – that came out wrong. As you mentioned, there is way too much bad information out there. I do know you did have a few items that were listed incorrectly before & I will gladly re-look at your blog & let you know if I spot anything now.

    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. (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.

    • Little River

      Sean, I don’t want to get into a tit-for-tat here, but I hope to perhaps clarify a few things you brought up, so here goes:

      >> 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. (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.

  18. Little River

    This latest update on the official RRP implementation could almost be comic if it weren’t such a perfect example of how badly this process continues to be butchered by the well-intentioned folks at the EPA.

    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 …

  19. City of Oaks

    Little River says:
    >> 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.

    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.

  20. Jim Hackett

    Update: Wall Street Journal 6/22/2010: EPA to Delay Enforcing Lead-Paint Regulation


    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.


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