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New EPA rule is an unrealistic way to protect homeowners from lead

colemanKEITH052810_optBY KEITH COLEMAN
COMMENTARY

Unless you're a building professional or in a related field, chances are you have no idea about a federal law enacted April 22. In all probability, if your home was built before 1978, the law just further reduced the value of your home.

The federal Environmental Protection Agency (EPA) enacted The Renovation, Repair, and Painting (RRP) Rule to protect individuals from lead, a component of paint that was used in more than 38 million homes until it was banned for residential use in 1978.

The initial intentions of the agency were admirable — to inform the public of the issue and to protect those most vulnerable to lead exposure, specifically children under age 6 and those still in the womb.

Understanding and accepting that lead can affect children's brains and developing nervous systems, I, and other members of the New Jersey Building Materials Dealers Association (NJBMDA), believe we should take reasonable precautions. After all, some 32 years after lead was banned, virtually no enforcement of lead-safe work practices has been in place.

On April 22, 2008, the EPA issued a rule requiring the use of lead-safe practices. Under the rule, beginning April 22 of this year, contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 must be certified and must follow specific work practices to prevent lead contamination.

The rule only applies to professionals. When homeowners do work on their own homes, they are not required to be trained or to follow the lead-safe practices.

An important component of the original law was something called an "Owner-occupant Opt-out Acknowledgment" (Opt-out). What the Opt-out stipulated was that if (1) no child under the age of 6 resides in the structure and if (2) no pregnant woman resides in the structure and if (3) the property is not a "child-occupied" facility (like a day care or a school), then (and only then), could the homeowner allow the professional contractor to not use the lead-safe work practices. If any of the above conditions existed, the contractor would be required to follow the lead-safe work practices.

This is important because the lead-safe work practices are not only expensive and time consuming to implement, but nearly impossible to follow in a real world situation. Nevertheless, the RRP Rule with Opt-out clause became the law of the land on April 22, 2010.

But then something happened that few expected. The EPA removed the Opt-out provision on May 6. In other words, the RRP rule would have to be followed on every job where lead paint possibly existed or the professional carpenters, electricians, plumbers, and painters would open themselves up to fines in excess of $ 30,000 per day.

With the Opt-out removed, the resulting rule is beyond unreasonable and will likely stop (legal) renovation and remodeling, further hurting an industry that has already been deeply affected by the economy.

What's more, it will largely inhibit the energy conservation movement as older homes tend to waste more energy and need more renovations than newer homes. Living in the Northeast, or Middle Atlantic region, we also pay a higher price under this federal mandate because our housing is older than the national average.

When it comes to waste, the new RRP Rule without Opt-out will create mountains of it, including plastic sheeting, plastic bags, duct tape, blue tape, spent test rods, and a whole host of other "supplies" that are only good for a single use.

Forget about being "green" and re-using that door that you were planning to put a fresh coat of non-lead-based paint on. Instead, wrap it in plastic, duct tape it like a Christmas gift, put it in the lined dumpster, and cart it off to the landfill.

I don't have the space here to describe how impossible it is to comply with this law. But let me hit the hot spots: Stipulations include capturing the water used when power-washing the exterior of a home to cutting out nice, neat little squares of plastic so that a ladder can somehow be safely placed on a floor covered in polyethylene, to stopping the wind from carrying lead dust away from a window unit replacement.

I certainly recognize that precautions need to be taken to protect small children and pregnant women. But this notion of treating every single job like it involves life-threatening, hazardous waste material is unconscionable and unrealistic.

And what's to stop a homeowner who first undertakes a remodeling job himself (and doesn't follow the RRP rule), but, after four or five weeks, decides to call in a professional who does follow the RRP rule. Perhaps the previous unprotected exposure results in an elevated lead level of the homeowner that's discovered several months after the remodeling job is complete.

The lawyers will likely point to a professional remodeling contractor who disturbed lead paint and conclude that he/she must have had some level of negligence. In any event, the contractor can be facing expensive litigation.

Without extensive testing of all family members before, during, and immediately after a renovation project, there is no way to precisely determine the source, or timeframe, of lead contamination. But you can bet the professional contractor (the one who's probably dealt with this material for the better part of his career yet does not possess elevated lead levels) will be deemed the villain.

Here's the bottom line. If you own a pre-1978 home, it is now worth less (a lot less) now than it was in March of this year. Not because of the economy, but because every time a contractor replaces a window or disturbs a potentially lead-based painted surface, you must pay for testing and compliance with work practices beyond your imagination.

Once again, government bureaucracy has run amuck.

I, as well as the NJBMDA membership, am a firm believer of aggressively protecting young children and pregnant women from needless or excessive lead exposure. And in those situations where either is present, precautions should be taken and strictly enforced. That's what this "rule" originally did.

As for the majority of all other situations, however, it must be incumbent upon the professionals and homeowners to exercise levels of personal responsibility and reason, as they are the ones who potentially expose themselves to lead in the course of the renovation project.

Like it or not, the government cannot protect everyone from everything. If it attempts to, it will prevent us from the progress that's so desperately needed in our housing industry and economy as a whole.

Everyone is interested in safety, but removal of the Opt-out clause goes way over the line. Contact your elected officials and demand that the Opt-out clause be re-instated so that reasonable procedures and processes can be used to renovate and service homes.

Keith Coleman, of West Windsor, is a Second Vice President of the New Jersey Building Materials Dealers Association and owner of Hamilton Building Supply in Hamilton.

 
Comments (5)
5 Monday, 01 August 2011 12:32
Bill J
Most of the contractors I talk to around the Luzerne County area of Pennsylvania say that the city and the state officials don’t enforce the RRP rules so who cares what the EPA wants. They tell me they’re not going to shell out thousands of dollars to get certified just to be compliant with this nonsense. Most agree that it’s just a waste of time and hard earned money with todays economy the way it is for both them and the home owner. I have even been told by one contractor that even a local city inspector told him it’s a waste money, we don’t enforce it! So my question to you is; should I even be worried about getting certified if the local and state officials don’t even enforce the RRP rule? And, can the EPA really fine a small business that much money?
4 Tuesday, 01 June 2010 17:38
Harry E.
Once again the government is taking money out of us hard working contractors and lining they're own pockets. If enough of us refuse to give in to they're demands. They'll just have to fix this ignorant law and make it fair for everyone.
3 Saturday, 29 May 2010 08:52
Tyson Schwartz
Keith - very nice article hitting the high points. One item you addressed, the ladder on the plastic, unfortunately remodelers have to choose from getting fined by the EPA or getting fined by OSHA on this one - if you comply with one, you are in non compliance of the other - very frustrating.

As the VP of a manufacturer of replacement windows (www.gorell.com) - , we have had several people go through all the testing/certification. We have also done day long training seminars for many of our customers so they are in compliance.

But the feeling among everyone in the construction industry(that I have talked to) is the opt out should definitely be put back into the LRRP law. There are two bills, one in the House and one in the Senate (both w/ wide bipartisan support) that are looking to delay the opt out for one year.

It is the feeling of most homeowners (that I have talked to) that don't have the criteria you list in your article (pregnant women, children under six, child care facilities) along with the vast majority of the construction industry, that this opt out should stay in the LRRP law permanently. The EPA estimates that this new law will only cost a homeowner up to $170 when replacing windows specifically.

Unfortunately, in the real world, a homeowner is looking at over $120 extra per window! Talk about getting taxed if you own a home built prior to 1978!

It is also important to note, that when the criteria you list above does exist, I don't believe anyone in the industry has been against using lead safe practices.

The Northeast Door and Window Association (up in your next of the woods) and the American Architectural Manufacturers Association (AAMA) have both tried to work with the EPA on finding common ground. We all want to protect children and pregnant women - these organizations share the goal of the EPA - eliminate lead poisoning in children - but when these conditions don't exist, people should be allowed to make their own choice - not let the government make it for them.

Hopefully the construction industry will be able to at least have the EPA engage in discussions regarding these opt out. Unfortunately up to this point, the EPA has been unresponsive or unwilling to discuss these issues.
2 Saturday, 29 May 2010 00:15
brian f.
Nice article Keith! As a long time remodeling contractor I dutifully took the RRP training and applied for certification recently in the midst of the worst downturn I've ever seen. Now, with the few potential clients I do meet, I first have to give them the required pamphlet, tell them it will cost more and take longer to do their project. Most are very surprised to hear about a new, national rule that applies to their homes. They certainly don't won't to hear about any extra costs, especially at this time.
I just did my first kitchen remodel since getting certified and it was almost impossible to follow the rules completely. The extra time was much more that I expected as well...
This isn't about the lead; these are "community organizer" tactics, adopted from Alinsky, which are quietly, systematically, undermining our economy under the guise of "fundamental change" .
1 Friday, 28 May 2010 21:26
Oscart Pukt
The federal government has run amuck in almost all departments. The number of rules, regulations, codes, laws, statutes, ordnances, etc. is in the millions.
The Dept. of Agriculture has more employees than there are farmers in the USA.
How do we stop and reverse the growth of the federal government?????
The liberal progressive lefties look at this government as a pet that needs to be fed so it can grow and take care of everybody.
The conservative righties see this government as a huge monster devouring more and more wealth and an impediment to prosperity.
Have you ever heard a lefty say the words freedom or liberty????? They don't believe in freedom and liberty. They will make us slaves of the federal government. Its time to say NO. Its time to say NOBAMA.

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