Critics of the Environmental Protection Agency’s (EPA) new rule governing repairing and remodeling homes with lead-based paint generally praised the EPA for delaying the effective date on pursuing certification violations, but their comments also indicated they still see significant problems with the rule.
EPA's shift came in a memo sent Friday to enforcement division directors. "Until Oct. 1, EPA will not take enforcement action for violations of the RRP Rule's firm certification requirement," wrote Cynthia Giles, assistant administrator in the EPA's Office of Enforcement and Compliance Assurance. "For violations of the RRP Rule's renovation worker certification requirement, EPA will not enforce against individual renovation workers if the person has applied to enroll in, or has enrolled in, by not later than Sept. 30, a certified renovator class to train contractors in practices necessary for compliance with the final rules. Renovators must complete the training by Dec. 31."
What prompted the EPA wasn't immediately clear. The NAHB implied it deserves credit when it issued a statement quoting NAHB Chairman Bob Jones as delaying: "EPA listened to our concerns and did the right thing." Likewise, the Window & Door Dealers Alliance (WDDA) said the decision "underscores the dedication of WDDA members and other like-minded business organizations who worked with the WDDA to delay the rule."
But there also are indications that a key motivator was Mother Nature--specifically the recent floods in the Nashville, Tenn., area.
In a news release issued shortly after news of the EPA's decision came out, Sen. Lamar Alexander, R-Tenn., noted he had written to the EPA on May 25 asking her to delay implementation of the rule. "In Nashville alone, there are 13,000 painters, plumbers and carpenters who have over 11,000 structures to fix that may be affected by the lead-paint rule," Alexander said, "and today's EPA decision means they can go to work without worrying about the threat of a $37,500-per-day fine as they help Tennesseans get back on their feet after last month's historic flooding."
Giles' memo instituting the delay mentioned "the many unique challenges around the country, including numerous disaster declarations," but didn't cite any specific disasters.
Close observers of the issue also noted the Senate's 60-37 vote to bar the EPA from using any money from a spending bill being debated for enforcing the lead-paint rule. While the vote had no impact--there wasn't any money of any kind for the EPA in that particular bill--the fact that both Democrats and Republicans voted for the idea showed the EPA that the lead-paint rule needed review.
The rule, which was issued April 22, 2008, and took effect on the same date this year, is intended to protect children and pregnant women from lead-based paint, exposure to which can lead to learning disabilities, behavior issues, and reduced intelligence. It requires contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 to be certified and follow specific work practices to prevent lead contamination. (See EPA fact sheet.) Ignoring the new rules can lead to fines of up to $37,500 per day.
The National Lumber & Building Material Dealers Association, which has pushed hard for a delay, appreciated the delay in enforcement but wasn't stopping there.
"NLBMDA continues to have numerous concerns with the overly complex and burdensome RRP Rule, including the removal of the opt-out provision and the lack of reliable test kits," the association said in a statement Friday. "The rule could have a severe impact on the remodeling market in several parts of the country and expose dealers and contractors to unnecessary liability. In addition, new proposals from EPA on clearance testing and an expansion of the rule to commercial construction pose additional challenges for the industry, which has still yet to recover from the recession. NLBMDA will continue to seek ways to mitigate the impact of the rule on the industry."
A ProSales/NLBMDA survey conducted just after the rule took effect found that one out of four building material dealers responding say remodelers and renovators have canceled work on a project because they lack the certification needed under the new rule, and one out of 20 respondents said remodelers and renovators have returned materials because of the rule.
The WDDA released its own survey more recently and said its results found more than 70% of the 100-plus respondents to date say their company has lost business since the rule went into effect.
The Window and Door Manufacturers Association (WDMA) also saw continued problems with the rule. "While we appreciate EPA responding to the concerns raised by WDMA and others, we continue to have serious concerns with many aspects of the rule, including the removal of the opt-out provision and unreliable test kits, and the new rulemakings on clearance testing and expansion to commercial buildings," the association said. "While everyone supports the goal of the rule, its complex and burdensome requirements have the potential to seriously impact the industry's fragile recovery, and WDMA will continue to seek ways to mitigate those impacts."
Craig Webb is editor of PROSALES magazine.