Sen. James Inhofe (R-Okla.) recently introduced the Lead Exposure Reduction Amendments Act of 2012 (S. 2148) to change the lead-paint safety rules and requirements for homeowners and remodelers. The bill would allow owners of houses built before 1978 who are planning to hire a contractor to opt out of mandatory Environmental Protection Agency (EPA) lead-safe renovation practices if they don't have children living in the house or if there is no one pregnant living there. Replacement Contractor recently spoke about the amendment and lead-safe renovation with Peter Lawton, a former remodeler and the owner of LeadSmart Training Solutions, a Massachusetts company that trains contractors in lead-safe renovation as well as OSHA (Occupational Safety and Health Administration) in Construction Standards.
Replacement Contractor: What's your sense on whether or not opt out will come back? Will this law actually make it through Congress and get a presidential signature?
Peter Lawton: The EPA is following what the Senate and Congress mandated a few years back. They get commands from the Senate. Thanks to Dean Loworn for sending the portion of the Tosca law which clearly states:
The grandparent of RRP [Renovation, Repair and Painting rule] is Title X of the Housing and Community Development Act of 1992, also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X). The grandparents gave birth to the parent of RRP, Title IV — Lead Exposure Reduction, which amended the Toxic Substances Control Act (TSCA).
Personally, I feel it's an election ploy for the Republicans. The Senator who proposed this bill is the same one who has stated that global warming is a farce. I don't see Obama signing this. He's made his position clear on any EPA rules having to do with child safety.
RC: Why is it important to contractors?
PL: The typical contractor lacks a fundamental understanding of the law. The economy in general is forcing many contractors to rediscover what it means to be in the residential remodeling market — with sales skills, administrative skills — assets that generally have little to do with the trade skills required to build a project. Losing work to illegal contractors is nothing new; it's just amplified in this economy by regulation. I wonder how much pain would be experienced had this law come into play in the '90s when work was plentiful.
Installer Health at Risk
RC: In a blog post, you mention the health risks involved for installers. That's something relatively little of the coverage deals with. Why?
PL: The funny thing is that you have three agencies that have had their own lead law. The EPA is the last one to come to the table. For some time OSHA has had its lead in construction (1926.62) law, which clearly states that you will not expose your employees to lead above the established permissible exposure level (PEL) of 50 micrograms per meter cubed. Fifty micrograms means little to anyone until you take a piece of sandpaper and sand a wall [coated with lead-based paint] and realize you just experienced an exposure of approximately 240 micrograms.
RC: So if a company is not EPA-compliant, it's also likely that it is violating OSHA rules?
PL: The most common response when showing someone a specific OSHA standard is, "I didn't know." OSHA protects workers. That's its mission. And OSHA rules apply to everybody except for the contractors who are individually employed and have no workers. And In 35 years of work, I have yet to meet a single trade that can truthfully say they work alone and never need additional help. Your chance of being audited or having a site visited by an OSHA inspector, as opposed to the EPA, is considerably greater because there are a lot more OSHA inspectors out there, and all it could take for a visit is an anonymous phone call from someone stating that [that contractor] is not working safe.
RC: Aren't OSHA visits to residential remodeling sites relatively rare?
PL: OSHA visits to residential jobsites are increasing. According to OSHA's list of most commonly cited violations for the year 2010, under Sub Part D, Occupational Health and Environmental Controls, three of the top five violations concern lead issues. Not to be misleading, fall protection citations far outweigh it. You have a cooperative effort that's been signed within the last 90 days so that OSHA and RRP enforcers now share leads. Now it's harder to fall between the cracks. OSHA can now pass on to the RRP enforcement agency what they see during their site inspections.
RC: You mention that there were three agencies with lead rules. What's the third?
PL: HUD, the department of Housing and Urban Development.
And HUD is the strictest and the most difficult. Generally, HUD is active in rental properties and they make RRP look like a wimp. Their goal is to protect the people they assist in various financial ways to establish a standard of living that the client might not be able to reach on their own. For example, you own a six-family [housing unit] and you want to change your windows, and in two of your apartments there is some government money helping a family live there. It's not just Section 8, it's energy audits, weatherization; there are several programs in play. And HUD is sitting back and saying: We have two families in this building and the landlord wants to improve it. We're not going to pump money into this building and have him poison the clients we have placed there. This is a crude way of explaining HUD's role, but think of it as securing an ROI on the investment HUD is making in the family and the building.
Level of Compliance
RC: Do you see the majority of contractors complying?
PL: No. If any of my answers above haven't created enough hate mail responses, this one surely will. But let me put it another way by asking this simple question: If all the contractors always acted in the public's interest, would the EPA be needed? Would OSHA be needed if all contractor/employers always insisted on and enforced safe work practices on their jobsites?
Would we need building inspectors?
Unfortunately, there will always be a group within any industry whose behavior calls down regulation on those who don't need it. You have the cream of the crop who will always rise to the occasion simply because they have a conscience. You can't regulate integrity.
RC: Do you think at this point, after two years, with companies already having their systems and procedures in place, that eliminating opt out would it make a difference?
PL: There are plenty of people who get it and incorporate it into their jobs. They do so for two reasons. Some do it for the health of their employees, some because they're afraid of being fined. If you believe what's written on contractor blogs, you have to suppose that there are a lot of contractors who are trained [in lead-safe renovation] but who are not doing it.
RC: Why do you think they're not doing it?
PL: The statements you read say that they are losing a lot of business. And there's not a lot of business to lose. These contractors who are blogging these remarks believe in what they are saying. But I can't help wondering if before pinning the tail on this donkey — blaming RRP for their business status — are they looking at their sales skills and organizational skills with honesty? Is it possible that they would be in a similar position if we eliminated RRP altogether?
The Way Forward
RC: What do you think should be done?
PL: I believe there are two steps needed for resolution — presuming that everyone is aware of the medical facts of what lead does to the body. First, make homeowners equally responsible when this type of work is awarded to an illegal contractor. Second, increase the enforcement budget so the compliant contractor will be rewarded for taking the high road.
RC: So you believe that restoring opt out wouldn't matter to the companies that do lead-safe renovation because they're good companies?
PL: It wouldn't make a difference to the top 10% of remodelers. The top 10% see the issue as health. You don't get to be in the top 10% by seeing only a portion of the big picture. Lead-safe renovation is a wise investment. It doesn't pay to poison the crew that's making you money next year. The top 10% know to invest in production. And then you have the companies that are rolling the dice, hoping that they won't get caught.
RC: How closely are these rules enforced?
PL: For 35 years I was a contractor. For the last two years I have worked with government agencies as an RRP and OSHA trainer. They're like the man behind the curtain in The Wizard of Oz. You will see people you once thought were very smart, very intelligent, fund a bill but then not fund the enforcement. That doesn't go down well with the guy who's trying to do the right thing. So, for instance in Massachusetts, you end up with contractors who are overregulated and over-licensed losing work to the guy who just doesn't bother following RRP — even if he got certified!
RC: Does enforcement vary by region or state?
PL: There is a significant difference in enforcement at the state level. Twelve of the 50 states have their own law and their own enforcement. That is, they begin with the EPA rules and add to it. Here in Massachusetts we were pushing and pushing for enforcement; pushing to get it publicized. And the [state agencies] were slow to do it. But they finally came through, and allowed the names of companies who've been fined to be posted.
RC: Why is enforcement so lax?
PL: What we don't understand on the lay side is the political price of doing this. These are appointed jobs, not elected jobs. In four years the control of the political machinery changes, or could change. And so could their jobs, if the people who work in these agencies have made enemies.
—Peter Lawton, formerly owner of designPLUS, a remodeling company that operated in the greater Boston area, is a trainer in RRP and OSHA in Construction Standards. Reach him at firstname.lastname@example.org.
—Jim Cory, editor, REPLACEMENT CONTRACTOR