The U.S. Environmental Protection Agency has no plans to discontinue the use of the inaccurate lead paint test kits available, even though they indicate “false positives” of lead being present by as much as 72% of the time, NAHB learned during an Aug. 25 meeting it called to discuss concerns about the implementation and enforcement of the lead paint rule.
EPA officials also indicated that they are preparing a new document detailing how the agency plans to levy fines against remodelers and other contractors who run afoul of the Lead: Renovation, Repair, and Painting rule. The fines will range from $150 to $37,500 per violation per day, depending upon the severity of the infraction, the EPA said.
NAHB called the meeting — the latest in a series the association has held with the agency and other industry groups throughout the year — so that the EPA could provide updates on the lead paint rule and give industry representatives an opportunity to air concerns about its implementation and enforcement.
Under the rule, which went into effect on April 22, remodelers and other contractors who work in housing and child-occupied facilities built before 1978 are required to undergo training and certification in order to work in the homes and must employ lead-safe work practices unless the homes are tested and found to be free of any lead paint. About 78 million homes are subject to the new EPA regulation.
During the meeting, EPA officials confirmed that second-generation and more accurate test kits would not be available on Sept. 1, as originally planned. The agency said that none of the new test kits reviewed was able to pass the “false positive” requirement indicating the presence of lead and did not know when more accurate kits would become available.
NAHB indicated its concern that the use of the three currently approved and inaccurate test kits will continue to raise the cost of renovation and repair for home owners as remodelers employ lead-safe work practices even though lead may not be present.
As posted on the EPA website, the inaccurate kits will remain in use until new kits that meet both the EPA’s negative and positive response criteria are introduced.
EPA Training Continues to Fall Short
The EPA reported that 449,000 remodelers and contractors had been trained under the lead rule as of mid-August and that 53,000 firms have been certified. However, EPA officials indicated that they were concerned about the low number of firms that had been certified to date and about contractors’ confusion about the individual training and firm certification requirements needed to work in pre-1978 homes.
The EPA has continued to receive applications for new lead rule training providers, with more than 200 in the pipeline for review. Currently, about 315 training providers have been approved by the EPA, including 15 online providers.
However, EPA officials also told meeting participants that they are investigating the accuracy of some of the training being provided. For example, one trainer was continuing to teach remodelers about the viability of the opt-out rule — where home owners could sign a waiver under certain circumstances. The opt-out rule expired on July 6.
The EPA has requested that remodelers contact the National Lead Information Center at 800-424-5323 with any complaints or concerns about lead rule training so that the agency can correct any problems.
In response to NAHB concerns that Occupational Safety and Health Administration (OSHA) general work site safety regulations may conflict with lead-safe work practices — for example, slipping hazards while using plastic sheeting — EPA representatives said OSHA has reviewed the rule and, while not noting conflicts in the regulations, has suggested changes to the training material. These changes will be incorporated when EPA updates its training material, the officials said.
Until then, remodelers are urged to contact their regional EPA or OSHA offices with questions about safety under the lead rule and OSHA inspections.
EPA Enforcement Procedures Not Finalized
EPA officials have released a draft enforcement plan detailing the fines it will levy against contractors for violating the lead rule. The nature of the offense; the contractor’s record, including previous offenses; and the contractor’s willingness to correct issues would all be factored into the severity of the fine, officials said.
EPA officials also said that some regional offices are investigating enforcement actions against remodelers after receiving tips on potential violations.
In addition, building officials in some jurisdictions have begun to deny permits to firms that have been unable to provide proof that they earned the proper certification under the rule.
The EPA is “encouraging people to ask questions, but not necessarily deny permits.” said the EPA’s Michelle Price.
Ten states have adopted the lead rule and have assumed implementation and enforcement responsibilities, with Georgia, Rhode Island and Massachusetts the most recent ones to implement the regulation.
Most of the states have instituted identical requirements of the federal rule, but some — such as Rhode Island, which plans to require clearance testing for completed remodeling projects in homes that test positive for lead — may enforce stricter rules and levy larger enforcement fines.
In Minnesota, contractors must show proof of EPA lead paint certification before renewing their business licenses.
NAHB will continue to monitor the implementation and enforcement of the lead paint rule and keep members apprised.
For more information on the lead paint rule, visit www.nahb.org/leadpaint.