April 12th, 2010
Living with Lead Rules
When I spoke on January 26 at a meeting of the Northeast Window and Door Association, I was asked of the likely impact of the new EPA lead rules. I have to confess that, as recently as that date, I was completely unaware of the pending rules. The problem is that many manufacturers were also unaware, or at least unclear, about the rules at that time, too.
I attended a presentation in March at Fenestration Day in which a presenter from Gorell Windows and Doors explained how they’ve taken a proactive approach. Numerous employees are certified in lead safe practices and they’ve begun hosting educational seminars for their customers. I couldn’t help thinking during the meeting that some of the manufacturer attendees were probably realizing that they hadn’t taken sufficient steps to prepare.
Technically, the rules focus on companies that actually replace windows which means it doesn’t apply purely to manufacturers. The problem is that, if there are problems stemming from unsafe lead practices, the homeowner will look to the party in the chain with the most money. That will typically be the manufacturer, rather than the dealer or contractor. Exacerbating that reality is the fact that, like many new government policies, the implementation of this policy has been highly flawed.
Even the individuals hired to train others regarding lead safe practices apparently have widely differing views of the requirements of the law. There have been numerous articles in DWM explaining the onerous methods window installers will need to take in pre-1978 homes. Suffice it to say that there will be more people at the job site in hazmat suits than if E.T. had Asian Bird Flu when he landed. One area where the instructors differed was how the plastic generated by all of these containment measures should be treated – hazardous waste with special disposal requirements or standard trash thrown in your dumpster. There are thousands of dollars and numerous potential fines and violations between those two extremes, so which is correct?
The bottom line is that manufacturers heading for April 22with insufficient plans in place need to conduct a lifeboat drill on this topic. At that the least, they should consult with an attorney who is knowledgeable about the new lead rules. Manufacturers with whom we’ve discussed the upcoming rules have said they will add language to their standard sales contracts with dealer and installer customers to disclaim any liability for the customer or installer’s failure to properly follow safe lead practices. I don’t know if that will work, but it’s worth exploring. Manufacturers that find themselves behind the curve must act quickly to try to establish some sort of shield in the face of some pretty daunting EPA rules. If they’re coming to that realization a little late, an attorney is probably the right place to start.