EPA Removes Opt-Out in Lead Renovation Rule

April 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.

Recordkeeping

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.

Industry Response

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.”

11 comments
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  1. The elimination of the opt out option just proves that the EPA hasn’t got a clue to what they are doing. There are as many arguements to keep it as there are to drop it. How about the many homes that have been totally remodeled since 1978 but were built before 1978 a perfect reason to opt put. How is it that a homeowner that wants to install thier own plumbing or electric can do so as long as they meet code and have the work inspected by the proper agencies but the EPA says the home owner can do thier own renovation without even a test before or after the work. Makes so much sense doesn’t it.

  2. The whole thing is crazy. Big brother strikes again cause he knows whats good for us. Try explaining to a homeowner the added cost for following these rules. Tell them they are not allowed in parts of thier home you are working in. They just look at you and tell you they will leave when they are done doing what ever it is they are doing.
    If anyone thinks that this will only add approx. $7 to $35 per job as the EPA said Go try doing a job and find out. Why not let them OPT -Out Its their home and if they can remove their own Lead why not have a OPT OUT clause. I already have people telling me they will do the demo and have me do the work. I guess it’s alright to infect your own. How do they know where these kids got there lead from. How many got sick after work was done on thier homes. Wheres the DATA . I would like to see an Honest break down of how and why these kids got Lead poisoning. Not some feel good law. Thanks MS. Boxer. Did you do your Homework

  3. this will only depress an already depressed market. Most homeowners will just find someone who is non compliant and get the work done cheaper. Great job EPA

  4. What about senior citizens in houses built before 1978, who have been counting on selling their house to use the proceeds for their old age? How can they afford to remove the lead from their house, even if it is minimal? And how can they ever sell their house if it is deemed to have lead hazards?

    Millions of older homes in the U.S. will be like lepers that can never be cured! And the present owners will be like prisoners in their virtually worthless houses! I can see whole blocks of houses falling into disrepair, and if there are older residents, they can never move to the senior housing they had hoped for in their advanced years.

    This is the situation we personally are in, and we are terrified. Just one of the millions of “unintended” consequences of this overreaching, arrogant, self-righteous government!

    These among the multitudes of edicts, mandates, laws, and regulations that should be repealed and revoked!

  5. The dangers of lead paint have been studied by several White House administrations. In 1992, Congress passed the Residential Lead-Based Paint Hazard Reduction Act, which required owners to disclose to buyers and tenants the existence of lead paint in pre-1978 homes. In 2001, the U.S. Department of Housing and Urban Development warned that renovations to older homes can expose occupants to lead-paint dangers, and in April 2008 the EPA issued the current rules.

  6. COME ON,LETS FACE IT,IT ALL ABOUT THE MONEY.THIS LAW WAY CONSTRUCTED TO THE POINT WHERE THE GOVERMENT ALMOST WANTS YOU TO FAIL.ITS ALMOST LIKE TRYING TO PUT IN A WINDOW WITH HANDCUFFS ON,AS IF WE WERE ARRESTED.ITS EXPENSIVE,AND IN ALOT OF CASES VERY DANGEROUS TO PERFORM THE NEEDED ACTIVITIES DURING A RENOVATION.TRY WALKING DOWN A FLIGHT OF PLASTIC LINED STAIRS WITH SASHES IN YOUR HANDS AND PAPER BOOTIES ON YOUR FEET! WHAT DO BIG LAWYERS KNOW ABOUT WHAT GOES ON IN A WORK SITE.LET SOMEONE WHO KNOWS THE BUISNESS WRITE THE LAWS,THAT WAY IT WOULD BE FAIR FOR BOTH SIDES.I DON’T MIND DOING THE RIGHT THING,BUT THIS LAW IS JUST TOO ONE SIDED.IT’S TOUGH TO FACE WHEN YOU STRUGGLED TO KEEP A BUISNESS FOR 35 YEARS AND NOW THE BIGGIES DON’T CARE IF YOU KEEP IT.I HAVE A FAMILY TO SUPPORT AS MUCH AS THE GOVERMENT EMPLOYED PEOPLE DO.THE OPT OUT WOULD HAVE MADE MATTERS A LITTLE BIT EASIER TO FUNCTION,BUT APPARENTLEY THATS BEEN ELIMINATED.THE SMALL GUY ALWAYS TAKES THE HIT.WEATHER IT BE,TAXES,COMP,ETC.ITS JUST VERY HARD TO GET BY.THATS WHY I WORK ALONE.COULD I USE HELP…YES,BUT I CANT AFFORD IT.NOW FORGET ABOUT IT.I’M LUCKY IF I STAY IN BUISNESS WITH THE EXTRA EXPENSE FOR MYSELF AND THE POSSIBLE CUSTOMER.WHAT REALLY BOTHERS ME IS THE DOUBLE STANDARD.ASK WHAT KIND OF PAINT IS BEING USED TO PAINT FEDERAL BRIDGES,TUNNELS AND LINES IN THE ROADWAYS THAT KIDS TRACK INTO THEIR HOMES WHEN THEY CROSS? YOU GUEST IT! VERY DISSAPOINTING AS AN AMERICAN,ESPESIALLY WHEN YOU HAVE BEEN A LAW ABIDDING CITEZEN FOR 54 YEARS AND WITHOUT CARE GET SLAPPED IN THE FACE.NOT FAIR.

  7. This is another example of a paper pushing burocrate who has never lived in a pre-1978 home or who has never strapped on a tool belt and worked for a living making a decision that will ultimantely destroy an entire segment of industry and will also render a home built before 1978 as worthless. Let’s take a fundamental look at the economic impact of this decision how many carpenters,electricians,plumbers,painters hvac techs are out of work since the collapse of the new construction housing industry, where did they all go? What was their only hope? You guessed it the remodeling industry. This is another example of government red tape stiffiling the American spirit. Oh well I guess let’s borrow some more money from the chinese so we can pay billions in unemployment, destroy what was left of the tax base and bankrupt even more business. Oh did I mention that I have already taken the lead certification course and would you like to know a few tid bits of information. Question #1 Where does all the 6 mill plastic go when the renovation project is over? You guessed it to a land fill to be burried or burnt, wow! that makes alot of sense, do you realize how long it take’s plastic to decompose? Or what burning plastic does to the Ozone! Question#2 How do you test for lead? According to my instructor you are supposed to cut a knotch in the sash of a wood window and use an EPA approved test strip which will change color when it detects lead! Guess what, there are no EPA approved test strips thats right they have implemented a law in which there is no way you can be in compliance. Oh did I mention that the test strip can not detect lead paint on stucco or drywall. How do you test a home which has aluminum windows?
    It is obvious that most contractor’s have no idea what our government has done to us. Wait until the home owners of pre 1978 built home catch wind of how much their remodel projects are going to cost them.
    Last but not least do you remember when you had to take your car to a testing station for emissions? What ever happened to a those testing stations?

  8. The epa’s federal registry is stating that the new opt out rule which has been eliminated begins on 7/6/10.
    How about the epa controlling the oil spill instead of putting people on the unemployment line! Big oil companies drilling for hundreds of years and never having a solid backup plan for a catasrophie like this and get away with it.Great job EPA.As long as the lead paint in contained,Thats the real problem,not billions of gallons of oil tn the gulf.

  9. Another well intentioned crusade gone off the track. A little resarch will show you that the groups applying pressure and responsible for the passage and the opt out going away are based in New
    York and San Francisco. Initially this law was written to address pre 1960 housing where 90 % of the lead paint was used. These groups got their way without any of their demands being tempered.. You’re tauught in the rrp class that the most dangerous lead contamination will be found in the window troughs. I will speculate that in 1970’s florida homes there is no lead in the aluminum window troughs. The rrp class will also tell you that 1 micro gram will kill you. There certainly should be a lot more dead and dying renovation contractors arouynd than I have seen! Can anyone research and find out how many lead related illnesses have been documented where only 1970 housing was involved? I’ve seen US geological survey docs showing only 1.2% of all lead paint was used 1970-1979. Blood level tests barely make it into the range of concern.This whole thing has become skewed and economically cumbersome compared to what it was originally supposed to accomplish.
    I feel that the data needs to be challenged and the law amended to reality. Can we get organized? will someone read this who can initiate a viable protest? Has the WDMA and others even considered challenging this all or nothing procedure? The problem is a diminishing one anyway due to aging housing stock being replaced.

  10. There are too many problems arising becasue of this law. It is important to keep people safe, but the law needs to be taken apart and revamped so that the construction industry, one of the few industries still in existence in this country, is not torn apart. The opt out provision should still be in effect, but homeowners should be made aware of the dangers and should be given information on how to protect themselves and their families from the possibility of lead contamination. As someone certified in lead renovation, I believe that being safe is important, but some facets of the law go too far. As usual the government is one step out of sync since the proper kits are not available until late 2010. Those that are currently EPA approved have to be ordered. The government’s estimate of the cost to the renovator is not even close. Until this law is corrected, it should be put on the back burner. It has been 32 years since lead-based paint was used. People have lived in and renovated these houses during all of that time. A little more time to get the bill corrected needs to be taken.

  11. Although Senator Inhofe has succeeded in achieving a much needed delay of enforcement of the EPA lead paint rule, proposed is an even more onerous addition to the Renovator Rule. If enacted, the latest EPA revision will require laboratory dust clearance for even many small jobs, at a cost of hundreds of dollars per job. The testing could often cost more than the job itself.

    The proposal also makes it illegal to use most of the HEPA vacs recently purchased for this purpose

    A more complete analysis of the revision is posted at http://www.renovatorrules.com The EPA comment period ends July 6th. If you have concerns let the EPA, your US Senator and Congressmen know how you feel.

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