EPA Removes Opt-Out in Lead Renovation RuleApril 23rd, 2010 by Editor
As anticipated by the industry (CLICK HERE for related story from www.dwmmag.com yesterday), the Environmental Protection Agency (EPA) announced earlier today that it will remove the opt-out provision in its 2008 Lead Renovation, Repair and Painting (RRP) Rule, which affects homes built prior to 1978. This final rule has not yet been filed with the Federal Register, but will be effective 60 days after date of publication in the Federal Register and submission to both Houses of the U.S. Congress. (CLICK HERE for the 66-page document detailing the decision and many details of this rule.)
The main portion of the rule affecting door and window contractors is that EPA is eliminating the “opt-out” provision that currently exempts a renovation firm from the training and work practice requirements of the rule where the firm obtains a certification from the owner of a residence he or she occupies that no child under age 6 or pregnant women resides in the home and the home is not a child-occupied facility. EPA is also requiring renovation firms to provide a copy of the records demonstrating compliance with the training and work practice requirements of the RRP rule to the owner and, if different, the occupant of the building being renovated or the operator of the child-occupied facility. In addition, the rule makes minor changes to the certification, accreditation and state authorization requirements.
According to the document, “Shortly after the RRP rule was published, several petitions were filed challenging the rule. These petitions were consolidated in the Circuit Court of Appeals for the District of Columbia Circuit. On August 24, 2009, EPA signed an agreement with the environmental and children’s health advocacy groups in settlement of their petitions. In this agreement EPA committed to propose several changes to the RRP rule, including the changes discussed in this document regarding the opt-out provision and recordkeeping requirements.”
According to the document, target housing was a large consideration in the EPA’s decision.
“By removing the opt-out provision, the rule will go farther toward protecting children under age 6 and pregnant women, as well as older children and adult occupants of target housing where no child under age 6 or pregnant woman resides,” reads the rule released today. “Therefore, the opt-out provision will no longer be available to owner-occupants beginning on the effective date of this final rule.”
Additionally, the document states that removal of the opt-out will result in fewer homes being purchased with lead hazards created by renovation, repair and painting activities.
“Under the RRP rule, the opt-out provision was limited to owner-occupied target housing and did not extend to vacant rental housing because of the concern that future tenants could unknowingly move into a rental unit where dust-lead hazards created by the renovation are present. In the same way, dust-lead hazards created during renovations in an owner-occupied residence conducted prior to a sale will be present for the next occupants. It is common for home owners to hire contractors to perform activities that disturb paint before selling a house, thus increasing the likelihood of lead hazards being present for someone buying a home, which may include a family with a child under age 6 or a pregnant woman.”
The EPA also states that the opt-out provision complicates the outreach and education about lead hazards and makes the rule more complicated for renovators to apply and consumers to understand.
“Furthermore, it not only assumes literacy but also a working knowledge of what the rule would otherwise require and an ability to provide informed consent,” writes EPA. “Accordingly, EPA believes that populations that already have the highest risk factors for lead exposure may be disproportionately adversely affected by the complexity of a rule that contains the opt-out provision.”
The EPA says it conducted a dust study which demonstrated that renovation, repair, and painting activities produce lead dust above the regulatory hazard standards. In fact many renovation activities create large quantities of lead dust. The Dust Study shows that renovation activities result in lead levels many times greater than the hazard standard when the RRP rule containment and cleanup procedures are not followed.
“Under the opt-out, contractors performing renovations would have no obligation to minimize or clean up any dust-lead hazards created by the renovation,” reads the report. “Indeed, contractors would not be prevented from using practices that EPA has determined create hazards that cannot be adequately contained or cleaned up even when following the RRP rule requirements.
The EPA says that as part of its preparations to administer the RRP program, it has been developing an education and outreach campaign aimed at consumers.
“In promulgating the RRP rule, EPA recognized the importance of education and outreach to consumers, to teach them about lead-safe work practices and to encourage them to hire certified renovation firms …. The EPA has determined that copies of the records required to be maintained by renovation firms to document compliance with the work practice requirements, if provided to the owners and occupants of the renovated buildings, would serve to reinforce the information provided by the “Renovate Right” pamphlet on the potential hazards of renovations and on the RRP rule requirements.”
EPA’s Response to Rule Objections
EPA addresses a number of concerns it heard from industry representatives during the development of the rule, including that 8 hours was not long for a training course for renovators.
“EPA agrees that the 8-hour renovator course, instead of a longer abatement course, is more closely related to what Principal Instructors must know in order to teach the renovator training,” reads the rule.
Though many had also expressed concern about the availability of accurate test kits, EPA says in the report that “test kits that more accurately determine whether a painted surface qualifies as lead-based paint will become available in late 2010.”
“Once the improved test kits are available, the number of renovation, repair, and painting events using lead-safe work practices due to the rule in housing previously eligible for the opt-out provision is expected to drop to 3.0 million events per year,” reads the report.
EPA estimates costs to renovators that must become trained and lead-safe-certified to be approximately $500 million in the first year, and then $300 million the next year, “when improved test kits for detecting the presence of lead-based paint are assumed to become available.”
Though EPA points out that it did consider a delay in the effective date of the rule, it decided this ultimately would lead to more confusion and to safety concerns as well.
“EPA considered an option that would delay the removal of the opt-out provision by 6 months, and another option that would delay the date by 12 months,” writes EPA. “These options would make the RRP program more complex to implement and might lead to confusion by renovators and homeowners. These options would also lead to increased exposures during the delay period, including exposures to children under the age of 6 and pregnant women. Therefore, EPA believes that these options are not consistent with the stated objectives of the rule.”
According to the report, the rule also is scheduled to be submitted to both houses of Congress prior to its effective date—which will be 60 days from the time it is submitted to them and appears in the Federal Register.
Many associations, including the American Architectural Manufacturers Association, the Window and Door Manufacturers Association (WDMA) and the National Lumber and Building Material Dealers Association, have supported preservation of the opt-out provision. Following the EPA’s announcement today, the WDMA and AAMA expressed disappointment with this decision.
“The WDMA still maintains that EPA has not provided adequate data nor have they shown any benefits or similar rationale for expanding the RRP rule which will add nearly 40 million more homes without the presence of pregnant woman and children 6 and under to the 38 million already covered,” says Jeff Inks, WDMA vice president of code and regulatory affairs. “The continuing lack of enough EPA certified trainers, firms, renovators, and accurate test kits have the potential to create major problems in the home retrofit market and hinder the fragile recovery in our industry.”
“This announcement is a disappointing set-back for the fenestration industry,” says Rich Walker, AAMA President and CEO. “The EPA has ignored industry requests to maintain the opt-out provision, which is going to force unnecessary regulations on the remodeling of homes occupied with people not at risk. Removing the opt-out provision also adds to the cost of window replacement for a segment of the homeowner population that can least afford it – senior citizens on fixed income. These additional fees could deter homeowners from making energy-efficient improvements and thus offset the positive impact from programs such as Home Star, that could have lifted our industry out of the economic abyss.”