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EPA Delays Enforcement of Lead-Safety Requirement, But Pleases No One

Remodeling contractors concerned about missing the April 22 deadline for becoming certified under the EPA’s Remodeling, Renovation, and Painting rule (RRP) got what sounded like good news in June: The agency announced it would not be taking any enforcement action for violations of the rule’s certification requirements until October 1. Remodelers who have enrolled in a training program with an EPA-certified trainer by that date will have until December 31 to complete it.

The intent of the change, according to the agency, was simply to give contractors some extra time to comply with the new rules, which are applicable to acceptable work practices in pre-1978 housing.

The EPA’s handling of the new requirements had been strongly criticized by builders organizations for being insufficiently publicized — leaving many builders unaware of the training requirement until the deadline was upon them — and for failing to ensure that enough certified trainers were available in all parts of the country to provide training to builders who wanted it (see “Uncertainty Abounds as Lead-Safe Remodeling Deadline Nears,” JLC Report, 3/10). Many members of the building community welcomed the announcement. “This is really good news,” Donna Shirey, chair of the NAHB remodelers council, told Remodeling magazine on the day the decision was announced.

A slightly thinner book. But on reading the fine print, it’s less clear what there is to be happy about. The central fact about the enforcement delay — which the EPA took pains to clarify in a question-and-answer page on its website shortly after the decision was announced — is that it applies only to the violation of working without the required training and certification, not to any violation of the lead-safe work rules themselves. As is explained on the agency website, “EPA will use its enforcement authority to ensure compliance by enforcing work practice standards and their associated record-keeping requirements against all renovators and firms.”

Stripped to its essentials, the enforcement delay comes to this: All contractors working on pre-1978 housing — whether already certified or not — must adhere to the lead-safe work practices and record-keeping requirements that took effect in April. If an EPA site inspection uncovers any violations of those rules, the contractor will be held liable for those violations.

The good news? Uncertified contractors nabbed for violating the lead-safe work rules will not be charged with the added violation of working without the required training. In effect, the agency reserves the right to throw the book at contractors who violate lead-safe work rules — but until December 31, the book thrown at uncertified contractors will be missing one page.

Stirring the pot. One group that is not happy about the delay is the National Association of the Remodeling Industry. “Our members are frustrated,” says director of education Dan Taddei. “All but about 10 percent of them are already certified. When we polled our people recently they said they didn’t want a delay — they were ready to move forward. Now the EPA is stirring the pot again.”

Not only is the delay unfair to contractors who went to the time and trouble to get trained and certified by the original deadline, Taddei says, but it glosses over the difficulty of working within the rules. “First they required training and certification and now they’re telling uncertified contractors, ‘Just go on our website, read up on lead-safe practices, and go do it.’ If that’s all there is to it, why have a training requirement at all?”

Inflammation and backlash. What prompted the EPA to delay the certification requirement at this late date? It may be that the agency, stung by criticism of the lead-safe practices requirements, was seeking to placate builders by offering the only concession available to it. “They couldn’t change the April 22 effective date,” Dan Taddei says. “It was too late for that. But enforcement is discretionary. They had some room to maneuver there.”

It’s also possible — though this is speculation — that the agency plans to curtail all enforcement efforts until sometime after the new certification deadline, but has chosen not to say so for fear of inflaming consumer advocacy groups concerned with lead safety.

If so, it’s already too late. On June 26, the group Parents for Nontoxic Alternatives announced its intention to go after noncompliant remodelers on its own. In a message posted on a news e-mail list maintained by the National Center for Healthy Housing, a member of the group noted that uninvolved parties have the power to file lawsuits for compliance with the Toxic Substances Control Act, which provides the legal foundation for the RRP rule. By joining forces with an attorney, the writer suggested, those parties might qualify for a share of any resulting settlement.