Lead Paint WARNING
Time to Prepare for Big Changes
by Tara Taffera

Jim Lett, owner of Abe Windows and Doors in Allentown, Pa., has a big problem facing his business. The bright spot is that he knows a big industry change is coming and at least he can try to prepare for it. Unfortunately, the thousands of door and window dealers across the country are facing the same dilemma as Lett and many don’t even know it.

“I was completely unaware of the lead abatement issue until a week ago,” says David Steele, president of the Window Gallery. “I heard a discussion about it and it caught me totally off guard.”

What many other dealers like Steele don’t know is that according to a the December 2008 Small Entity Compliance Guide to Renovate Right, EPA’s Lead-Based Paint Renovation, Repair and Painting Program that contractors (including those who replace windows) who disturb painted surfaces in pre-1978 homes are required to be certified before these regulations become effective in 2010?

So what if dealers don’t comply? Not a big deal, right? Actually, the fine for non-compliance is $32,500 per violation, per day.

Now this issue facing dealers across the country at first wasn’t as big of a problem as when this rule came out more than a year ago. Here’s what changed. After some pressure from industry groups, the EPA decided to propose a rule that would remove the opt-out clause. So, before homeowners who didn’t have a child under six living in the home, or a pregnant women could opt-out of the lead paint requirements.

“If they didn’t get rid of the opt–out, it wouldn’t be as much of an issue,” says Lett. “But to remove it is horrible for a company my size. We’re estimating 35 to 40 percent additional labor costs.”

That’s what has Lett, and other dealers so distraught and worried about the devastating impact this can have on their businesses.

Removing the Opt-Out
On October 28, 2009, the EPA proposed a few revisions to the RRP. One is to eliminate 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 six nor pregnant women resides in the home and the home is not a child-occupied facility.

In an EPA press release dated October 22, Steve Owens, assistant administrator for the Office of Prevention, Pesticides and Toxic Substances, said the proposed rule will further increase protections for children and their families from lead-based paint hazards associated with home renovation and repair. In the press release, the EPA said it will take comment on the proposal for 30 days and expects to finalize the rule by April 2010.

Comments were due on November 27, and the Window and Door Manufacturers Association (WDMA) was one group that weighed in on behalf of its membership.

“WDMA is opposed to this proposal for a variety of reasons. For one, removing the opt-out provision is a complete reversal of EPA’s determination to include it in the final rule and their reason for doing so,” says Jeff Inks, vice president, codes and regulatory affairs for the WDMA.

By some WDMA members estimates, the added cost of complying with the rule on a window replacement project is approximately $60 per window opening.

“By the EPA’s own estimate, the proposed elimination of the opt-out rule is expected to cost approximately $500 million in the first year alone, which is burdensome on an industry and consumers that are already suffering from the effects of a severe economic recession,” according to the WDMA’s comments to the EPA.

In addition, Inks says the EPA going back on its original decision would be particularly exasperating because it was “clearly reasoned and substantiated by EPA … and that … “EPA has provided no new relevant data, information or analysis establishing the need or justification for this complete reversal in its original determination and significant expansion in the scope of applicability.”

Another thing the EPA is considering is possibly delaying the effective date of the rule. The WDMA firmly supports the delay for two main reasons. First is the concern is that there won’t be enough certified renovators by April, according to Inks.

According to Inks, EPA estimated that approximately 190,000 certified renovators would be needed and only approximately 4,000 to 4,500 have been certified to date.

“Should we consider extending this? Absolutely,” he says.

Another reason relates to the availability of test kits to test for the presence of lead.

“Cost-effective, reliable pre- and post-test kits must be widely available before a rule like this comes into play,” says Inks, who
adds that this isn’t currently the case.

What the Window Industry is Doing
Many door and window companies, including manufactures and suppliers, are doing what they can to inform their customers of what’s coming so they can be prepared. For example, Chelsea Building Products sent an e-mail to all of its window fabricators to inform them of the proposed rule and encouraged them to comment, and also provided them with a copy of the compliance guide.

“Communicating this information to your customers and mounting a grassroots campaign to get this modified is important to our industry and I encourage you to act immediately by commenting and forwarding to your replacement window dealers and contractors,” said Terry Abels, vice president of sales and marketing, in the e-mail.

Wayne Gorell, president of Gorell Industries, says this rule will have a huge impact on the window replacement industry.

“As I see it this could virtually eliminate small window jobs of fewer than seven or so units, to allow the additional cost to not make the selling price prohibitive to the homeowner,” he says. “In an economy where credit is still almost non-existent, this will have a devastating impact to dealers’ ability to make sales.”

Lett agrees, pointing out that for large remodeling companies the rule will not have as much of an impact, but for smaller companies like his, it “is a huge issue.”

“It will kill the small jobs,” he says.

But even though this will have such a profound impact on window dealers many are unaware these rules are even coming.

“The contractors I talk to aren’t even aware of it,” says Lett. “They don’t even know they were supposed to be passing out these pamphlets for years. They take a cavalier attitude. They are trying to skirt the law … They don’t think it applies to windows.”

Manufacturers such as Gorell have notified its dealers through written correspondence and by word-of-mouth from its sales managers.

Ken Barman, director of sales and marketing for ViWinTech Windows & Doors, says the company has been working to get the information out through its sales staff.

“The industry is not well-informed about this,” he says. “Everyone needs to make people aware.”

Barman heard bits and pieces about the RRP in early 2009 and didn’t think much of it until he heard more about it. Barman has been working to become more educated as dealers will be looking to their manufacturers to answer questions. He did report that some of his customers’ customers have been certified.

At window manufacturer BF Rich, Van Sias, territory manager, completed the training with the goal of becoming educated so he in turn can provide information to the dealers. Like other manufacturers, BF Rich has notified dealers through e-mail newsletters, face-to-face conversations and other means. A few dealers have taken the training, but Sias agrees that many are unaware that the rules are even coming.

“The ones who are aware are taking it seriously,” he says. “Some people just don’t know.”

At Lawrence Industries, a supplier of lead-free composite locks, employees have completed the RRP/EPA training, so they will be able to answer questions their window manufacturer customers may have.

“We tell the window manufacturers to take this class,” says Brandon Lawrence, vice president of marketing. “Because you’re going to get questions and inquiries from dealers so you have to be the expert. That’s why we took it.”

Differences of Opinion
Just as some dealers take a laissez faire attitude, while dealers such as Abe Windows and Doors have all their staff trained, differences of opinion occur in other areas as well.

“You hear the word lead and a lot of people get nervous,” says Sias. “We wanted to be fully prepared to tell dealers what would be required of them. It’s not lead abatement, which seems scary. It’s just taking precautions—working around lead.”

He admits that it will involve more labor and a little more materials but “it won’t be extravagant. As long as the certified renovator trained the crew, he just has to be there for tear down and set up.”

But, according to Lett, when one person takes the class and then trains an employee, and then that employee trains another employee, and so on, information can get lost in translation.

“Technically only one person has to be certified,” says Lett. “If you only have one person you don’t recall everything. If you have everyone trained, two, three or even four heads are better than one. For example, you teach me, and you forget a few things.”

He adds that employees who take the class take this issue more seriously. That’s why at his company 15 people have been trained as of January 2009.

Lett adds that while training is a good idea, instructors in the certified renovator courses convey the information differently and sometimes send mixed messages.

“One said the procedures were more commonsense [while] another gave specifics,” says Lett. “What are you supposed to do? If it’s open to interpretation, it’s very confusing for the dealer. If you go to a class and the instructor says you don’t have to put plastic down and mine tells me I do, we both think we are following the law and my competitor is doing it with way less expense.”

There are also differences of opinion as to exactly how many jobs this will affect.

“The main thing dealers have to realize is it’s for homes before 1978,” says Sias. He believes this will be a big issue mainly for homes built before 1960.

Lett believes this will affect most of the projects he works on.

“I’m all for protecting my employees, my customer, the environment, etc. But to put in replacement windows you’re not doing a whole lot of cutting, etc. You’re not out there with saws, etc.,” he says.

One area on which many in the increase in lawsuits that undoubtedly will spring up.

“I’ve never heard a claim that anyone has ever been injured by lead paint during window replacements, but we will certainly be
seeing claims in the future,” says Gorell.

Lett says he can hear the ads now. “Do you have a home built before 1978? Do you have a child under the age of 6 residing in your home? …”

Lett also wonders if the EPA took under consideration some of the environmental effects that the procedures bring along with it. For example, Lett says window contractors have to put down 6-mil plastic for 250 square feet per opening and on the second floor you must go 20 feet out with the plastic.

“Has anyone given any thought to where all that plastic is going to go?” he asks.

Prepare Yourself
The Lead Facts You Need to Know
The Lead-Based Paint Renovation, Repair and Painting Program (RRP) applies to residential houses, apartments and child-occupied facilities such as schools and daycare centers built before 1978. It includes pre-renovation education requirements as well as training, certification and work practice requirements. According to the RRP it applies to “anyone who is paid to perform work that disturbs paint.”

“Renovation is broadly defined as any activity that disturbs painted surfaces and includes most repair, remodeling and maintenance activities, including window replacement,” according to the RPP.

The program excludes the following:
• Housing for elderly persons, unless children under six reside or are expected to reside there;

• Zero-bedroom dwellings;

• Housing or components declared lead-free by a certified inspector or risk assessor; and

• Minor repair and maintenance activities that disturb six square feet or less of paint per room inside, or 20 square feet or less on the exterior. According to the RRP, “Minor repair and maintenance activities do not include window replacement and projects involving demolition or prohibited practices.”

Rules at a Glance
Beginning April 22, 2010, the following rules apply:
• Firms must be certified;

• Renovators must be trained;

• Lead-safe work practices must be followed. Examples of these practices include:

• Work area containment to prevent dust and debris from leaving the work area; and

• Thorough cleanup followed by a certification procedure to minimize exposure to lead-based paint hazards.

Responsibilities of a Certified Firm
Firms performing renovations must ensure that:

1. All individuals performing activities that disturb painted surfaces on behalf of the firm are either certified renovators or have been trained by a certified renovator;

2. A certified renovator is assigned to each renovation and performs all of the certified renovator responsibilities;

3. All renovations performed by the firm are performed in accordance with the work practice standards of the Lead-Based Paint Renovation, Repair and Painting Program;

4. Pre-renovation education requirements of the Lead-Based Paint Renovation, Repair and Painting Program are performed;

5. The program’s recordkeeping requirements are met.

Responsibilities of a Certified Renovator
To become a certified renovator an individual must successfully complete an eight-hour initial renovator training course offered by an accredited training provider (training providers are accredited by EPA, or by an authorized state or tribal program). The course completion certificate serves as proof of certification.

According to the RRP, certified renovators are responsible for ensuring overall compliance with the RRP’s requirements for lead-safe work practices at renovations they are assigned. A certified renovator must do the following:

1. Use a test kit acceptable to EPA, when requested by the party contracting for renovation services, to determine whether components to be affected by the renovation contain lead-based paint (EPA will announce which test kits are acceptable prior to April 2010 at www.epa.gov/lead);

2. Provide on-the-job training to workers on the work practices they will be using in performing their assigned tasks;

3. Be physically present at the work site when warning signs are posted, while the work-area containment is being established, and while the work-area cleaning is performed;

4. Regularly direct work being performed by other individuals to ensure that the work practices are being followed, including maintaining the integrity of the containment barriers and ensuring that dust or debris does not spread beyond the work area;

5. Be available, either on-site or by telephone, at all times while the renovations are being conducted;

6. Perform project cleaning verification;

7. Have with them at the work site copies of their initial course completion certificate and their most recent refresher course completion certificate; and

8. Prepare required records.

In addition, all documents must be retained for three years following the completion of a renovation. Records that must be retained include:

• Reports certifying that lead-based paint is not present;

• Records relating to the distribution of the lead pamphlet; and

• Any signed and dated statements received from owner-occupants documenting that the requirements do not apply (i.e., there are neither any children under age six nor pregnant women residing at the home, and it is not a child-occupied facility); and

• Documentation of compliance with the requirements of the Lead-Based Paint Renovation, Repair and Painting Program.

DWM
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