Lead Paint Rules Take Effect With No Opt-Out Provisions--UPDATE

April 23, 2010

With the Lead Renovation, Repair and Painting Rule going into effect yesterday, the U.S. Environmental Protection Agency officially announced the elimination of the "opt-out" provision today.  It also announced plans to add "dust wipe" testing requirements and its "intention to regulate renovations on the exteriors of public and commercial buildings."

According to an EPA press release, the final RRP rule applies lead-safe work practice requirements to all pre-1978 homes, "effectively closing an exemption that was created in 2008."  A page on EPA's Web site also states specifically that the "opt-out" rule is being eliminated.  This will take place 60 days after the final rule is entered into the Federal Register.

Industry disappointment
Preservation of the opt-out provision was a priority of the Window & Door Dealers Alliance and several other industry organizations. “This is a big disappointment for our industry and for our customers,” says Dave Steele, president of the Window Gallery in Augusta, Ga. and a WDDA member. “Nobody is more concerned about the safety of our customers and our employees than the members of the WDDA, so we take the EPA’s new regulations very seriously. That said, the cost of compliance with the new rules is considerable, so customers who face negligible risk should have had the right to decide whether the added expense was worth it to them.”

“Not only did the EPA rush this rule into effect without adequate notice, but they compounded the problem by deleting the opt-out provision,” adds David Walker, WDDA VP. “EPA’s due diligence on this action was shoddy at best, and you can be sure there will be severe short- and long-term implementation problems as a result.”

The Window & Door Manufacturers Association expressed simlar disappointment with the EPA decision.  "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 six and under to the 38 million already covered," says Jeff Inks, WDMA VP 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."

In addition to its opt-out decision, EPA's announcement included a "notice of proposed rulemaking" to require dust-wipe testing after most renovations, with results of the testing to the owners and occupants of the building. For some renovations, the proposal would require that lead dust levels after the renovation be below "regulatory hazard standards." EPA will take comment on the proposal for 60 days and plans to finalize the rule by July 2011.

Finally, EPA also issued advance notice of its intention to apply lead-safe work practices to renovations on public and commercial buildings. The agency also plans to begin an investigation into lead-based paint hazards that may be created by renovations on the interior of these public and commercial buildings. If EPA determines that lead-based paint hazards are created by interior renovations, EPA will propose additional regulations, it stated. 

The issue of press release puts an end to some questions raised yesterday, when an announcement of EPA's decision to end the opt-out, as well as its other plans related to lead paint dust and renovation work, appeared on the EPA Web site and then was removed.  Mary Beth Husey, executive vice president of the National Association of the Remodeling Industry, sent out a letter at the end of the day noting the "curious incident."  The letter also urged NARI members to  "please comply with all requirements of the rule; effective today, the rule is the law."

Also noting the incident was Ty Schwartz, vice president of sales and marketing at Gorell Windows & Doors. "This is just another example of how poorly the EPA has communicated this message to our industry," he stated.