EPA Stands Firm with Implementation Date
But Will Congress Come to the Industry’s
by Tara Taffera
As anticipated by the industry, the Environmental Protection
Agency (EPA) announced on April 23 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. The final rule was filed with the Federal Register
on May 6, and will go into effect on July 6. (See page 29 for late-breaking
news regarding this story.)
Despite industry opposition, including a rally held in Washington, D.C.,
on April 15 that was organized by the Long Island Chapter of the National
Association of the Remodeling Industry, (NARI), the EPA announced on April
23 that it would move forward with the program.
This was despite the fact that Rep. Tim Bishop (D - N.Y.) attended the
rally and pledged his support to seek a delay of the April 22 implementation
date. (For more information on and video footage from the rally, visit
dwmmag.com. Also, see page 4 of this issue.)
“I am determined to do whatever I can to delay this lead rule,” Bishop
told the contractors in attendance.
Associations Take Action; React to EPA Decision
That same week, members of the Northeast Window and Door Association (NWDA)
met with many members of Congress during the association’s annual Washington
Fly-In and aimed to inform them of the EPA rule. They reported that most
members of Congress were unaware of this issue, including Sen. Arlen Specter
(D - Pa). NWDA members participated in a town-hall style meeting on April
14 at the U.S. Capitol and questions involving the lead paint rule dominated
the question-and-answer session. Specter’s staff vowed to look into the
issue but at the time it appeared to be too late.
Other associations also were involved in meeting with the EPA and Office
of Management and Budget to inform these entities of the effect portions
of this rule would have on the door and window industry. This included
the American Architectural Manufacturers Association, the Window and Door
Manufacturers Association (WDMA) and the National Lumber and Building
Material Dealers Association.
Following the EPA’s announcement, all expressed disappointment
with the decision to remove the opt-out provision.
“The WDMA still maintains that EPA has not provided adequate
data nor [has it] 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,”
adds Rich Walker, AAMA president and chief executive officer. “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[s]. 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.”
Doug Dervin, owner of Double D Contractors in Hicksville, N.Y., is one
of the many contractors that will be affected by this change. He also
was integral in the planning of the rally at Capitol Hill. Following the
EPA’s April 23 announcement, Dervin admitted to feeling dejected.
“I feel defeated and I’m not that kind of guy,” he says.
Dervin is concerned about the effect this rule will have
on his remodeling business, which already is suffering.
“I’ve laid off employees during this downturn … And now I have essentially
one month left to sell windows with the opt-out clause,” he told DWM magazine.
Another contractor who had lobbied to retain the opt-out rule is Jim Lett,
owner of A.B.E. Windows and Doors in Allentown, Pa.
At the rally in D.C. Lett pointed out that only nine percent of his customers
would fall into the category of pregnant women or families with children
under the age of six.
“What I do have a problem with is putting this burden on the other 91
percent of my customers,” says Lett.
Lett and Dervin also disagreed with the EPA’s estimation that the cost
of a window installation would only increase by $35. Lett estimates it
at more than $100 per opening.
However, there are some companies in the industry who say they won’t raise
costs. One of these is Feldco Windows, Siding & Doors, based in Des
Plaines, Ill., which says all of its locations already are EPA-certified
for lead-based Renovation, Repair and Painting.
”We hope that with our experience and our expertise that we will be able
to provide the additional materials and work required without increasing
our prices at all,” says Doug Cook, Feldco president. ”We think we have
the technical capability and skilled employees to be able to provide this
enhanced service without increasing the price to the homeowner.”
Cory Shiller, executive vice president of Power Windows, based in Brookhaven,
Pa., says the company hoped initially to not raise prices but this has
“It is a little more costly than we originally thought and we will have
to raise prices slightly but we are trying to absorb as much as possible,”
House and Senate Introduce Legislation to Delay EPA Lead Rule
Although the Environmental Protection Agency (EPA) has stood firm
on its decision not to delay the April 22 implementation date of
the Lead; Renovation, Repair, and Painting Program, legislation
has now been introduced in the House and Senate that could delay
the rule for at least one year until more contractors are trained.
H.R. 5177, introduced on April 29 by Rep. Denny Rehberg (R - Mont.),
has 16 co-sponsors, and would “delay the implementation of certain
final rules of the Environmental Protection Agency in States until
accreditation classes are held in the States for a period of at
least one year.”
According to the legislation, the EPA Administrator shall:
(1) monitor each State to determine when classes described in subsection
(a) are offered in the State; and
(2) provide to each Member of Congress representing the State a
(A) the location and time of each such class held in the State;
(B) the date on which the classes have been held for the 1-year
period described in subsection (a).
The House bill had been referred to the House Committee on Energy
and Commerce at press time.
The Senate version of the bill, S.3296, was introduced on May 4
by Sen. James Inhofe (R - Okla.) and has 26 co-sponsors. It was
referred to the Committee on Environment and Public Works.
for the latest updates.
The various articles that have appeared on the lead paint regulations
in recent months have elicited numerous reader comments on dwmmag.com.
Following are a few excerpts of what readers on all sides of the
issue are saying.
“Contractors need to quit fighting change. Do it right or stay
“I assure you, I will not be paying extra
for windows in my home to satisfy EPA’s bureaucratic meddling
… The opt-out provision is a reasonable attempt to minimize the
cost impact of protection for those families who need it. Get
the government out of the lives of everyday folks!”
"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.”
“I think the EPA dragged their feet enough
on this issue and basically had to make a decision to get all
contractors on board.”
The Finer Points
A Look at the Nuts and Bolts of the Final Requirements
The main portion of the rule affecting door and window contractors
is EPA’s elimination of 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 also is 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
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. “Therefore, the
opt-out provision will no longer be available to owner-occupants
beginning on the effective date of this final rule.”
Additionally, the EPA report on the rule says that removal of the
opt-out will result in fewer homes being purchased due to 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,” writes the EPA. “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 wners 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.
EPA believes that populations that already have the highest risk
factors for lead exposure may be 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 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,
according to EPA.
“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 eight hours was
not long for a training course for renovators.
“EPA agrees that the eight-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 six 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
for the 66-page document detailing the decision and many additional
details of this rule.
Tara Taffera is the editor/publisher of DWM/Shelter magazine.
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No reproduction of any type without expressed written permission.