Wherever they stand on the continuum ù all-out effort to comply, head-in-the-sand denial that the rules exist, or somewhere in between ù all remodelers face risks when it comes to lead paint and the regulations surrounding it.
Clients or workers can sue, claiming they developed lead poisoning on a job. Government officials can fine remodelers for noncompliance with the rules. And even the most careful remodelers face having to pay for ù and charge for ù the cost of lead-safe work practices, which many of their competitors donÆt observe.
ôI got religion on this three years ago when we typed the word lead into our computer and a bunch of attorney firms popped up on the screen,ö says Mike Sullivan of Sullivan Construction in Portland, Ore. Remodelers have not yet been subjected to big lawsuits on the lead paint issue, but the potential exists under current and proposed state and federal legislation.
By comparison, Lansing, Mich., remodeler Brindley Byrd is philosophical. When lead paint regulations first appeared, he says, remodelers were eager to improve their work practices and feared big lawsuits. As far as heÆs concerned, at least for now, ôthe big, dark cloud is gone. Homeowners donÆt care about lead. There hasnÆt been much enforcement. The EPA rules wonÆt make a difference.ö
So whoÆs right?
The difficulties of compliance
Young children with lead poisoning risk permanent damage to the brain and the rest of the central nervous system; or may develop behavioral, learning and hearing problems; suffer headaches; and experience slowed growth. Adults may suffer high blood pressure; nerve disorders; digestive, memory and reproductive problems; and muscle and joint pain.
The U.S. Consumer Product Safety Board banned the use of lead in residential and most commercial products in 1977. But almost any kind of remodeling work can stir up lead paint dust or chips, sending them into the air, HVAC ductwork or even soil, putting both homeowners and workers at risk of inhaling or eating lead. And so in 1992 Congress enacted the Residential Lead-Based Paint Reduction Act. Also known as Title X, the law required three federal agencies ù the Department of Housing and Urban Development, the Environmental Protection Agency and the Occupational Safety and Health Administration ù to issue regulations to reduce lead exposure in pre-1978 housing where a child younger than age 6 is likely to live.
Issue regulations they have. WeÆve collected them for you in one handy chart (see ôExisting and proposed federal regulationsö). In addition, every state has the option of taking over the administration of the federal rules or using its own regulations as long as theyÆre at least as protective as the federal ones. Some state policies, such as OregonÆs EPA program, almost mirror the federal rules. Other states, such as Massachusetts, have stricter requirements. A few cities, including San Francisco and New York, also have their own rules.
OSHAÆs 8-year-old Lead-In-Construction Rule is one of the toughest. It applies to all construction activities, buildings of all types and ages, and all kinds of lead exposure, whether or not the source is paint. It requires worker training, air monitoring at the work site and, if lead levels warrant it, medical monitoring, implementation of safe work practices, use of protective equipment such as respirators, protective clothing, HEPA vacuums, HEPA filters on tools ù plus documentation of all of this.
Compliance among remodelers who are not abatement contractors is minimal. Sullivan estimates that as of a year ago, only about 1% of the 30,000 or so remodelers in Oregon were in compliance. After an aggressive effort by the Oregon Remodelers Association to train remodelers, he figures the number might be up to 5%. Nationwide, the number in compliance is ôso small it canÆt be measured,ö says Bob Hanbury, CGR, who helps monitor lead-related issues for the NAHB and the Remodelors Council.
Most remodelers donÆt realize they are affected. Dan Chatfield, administrator of OhioÆs lead-poisoning prevention program, says almost none of the remodelers in the state is in compliance, largely because the state has no way of finding and educating all of them. ôSince thereÆs no licensure law here, thereÆs no way for us to identify all the smaller remodeling companies,ö he explains.
Even remodelers who know theyÆre affected find it difficult to comply fully because of the time and money required for ongoing monitoring, record keeping, and delays while waiting for test results.
Jim Minden of Classic Construction and Remodeling in Portland took a two-day HUD/NARI training course and even invited an Oregon OSHA representative to review his companyÆs procedures. (Such consultations are for information only and do not trigger fines.) Minden is doing his best but has come to believe that total compliance requires sophisticated, expensive calibration equipment and that ôthere should be a distinction between companies that work with lead paint daily and those that work with it occasionally.ö Minden is now on a task force working with the state OSHA office to revisit the rules for lead paint.
Some remodelers say the national OSHA playing field is uneven: Companies with no employees are not affected. Sullivan says that means bigger operations, such as his $1 million company, that do try to comply ôwill continue to potentially price ourselves out of the market.ö
Of course, compared with the real giants in the construction industry, almost every remodeling company is small. As ôlittle guys,ö some remodelers feel hidden from OSHA. They figure OSHA will never pinpoint their companies, let alone one of their short-duration jobs, for an inspection.
They might be right.
Under OSHAÆs new National Lead Emphasis Program, if an employee reports a problem, a state health department refers a problem to OSHA, or a company name pops up randomly from a site-specific targeting list, OSHA will do its best to schedule an inspection. If the inspector finds that the employer doesnÆt comply with OSHA standards, the employer might be told to remedy the problem by an agreed-on date and possibly face a penalty.
However, a senior OSHA official says that while OSHA wants to pay more attention to the lead hazard, it will not increase its rate of approximately 34,000 inspections a year. She adds that OSHA inspections are prioritized, with sites posing ôimminent dangerö at the top, ôemployee complaints or referralsö coming second, and ôprogrammedö inspections of workplaces third.
Watch out for this one
The EPA has spent the past three years working on a lead rule aimed specifically at renovators and remodelers. The Renovation and Remodeling Rule likely will feature training, safe-practice and enforcement components. The idea is to provide training that is inexpensive, easy to follow, and concise enough to be com-pleted in one day, says Mike Wilson, environmental protection specialist in the EPAÆs Office of Pollution Prevention and Toxics.
ôThe abatement regulations are burdensome and not necessary for renovators,ö Wilson explains. ôThe goal of abatement is to eliminate lead hazards. A renovatorÆs goal is to not introduce new lead hazards during the remodeling activity. With the renovation rule, we want to cause contractors to work in a lead-safe fashion that would lead to a safer result.ö
Wilson adds that safe work practices ôare not rocket science,ö and points out that containment, dust control and thorough cleanup are simple steps that should already be standard operating procedure. Safe-practice equipment such as HEPA vacs might be recommended, but because this equipment is encouraged in OSHA standards that have been in effect for years, remodelers might already have it. The EPA is also considering clearance requirements mandating post-remodel lead testing, which costs about $150, Wilson adds. He suggests that contractors consider pre-testing to protect themselves even if itÆs not required.
Even if the Renovation and Remodeling Rule is published in late 2002, as Wilson hopes, an 18-month review and comment period would follow. Then the states would get two years to decide whether to establish and administer their own programs to comply with the rule (the federal government would implement the rule in states without programs). WeÆre talking 2006 at the earliest for the rule to take effect.
Thirty-six states have authorized EPA abatement programs, and Wilson hopes at least that many states would administer the Renovation and Remodeling Rule. State agencies ôknow more about the problem areas in their states,ö he says. ôTheyÆre there and can get to a site fast if a tip comes in.ö
Hanbury, an NAHB representative on a panel reviewing the rule, acknowledges that while the EPA proposal is not as strict as other requirements already in place, the cost of the work practices is being underestimated because insurance and record keeping have not been factored in. Add pre-testing, post-testing, equipment costs, and salaries and travel expenses for employee training, he says, and that could mean a 7-8% increase in expenses.
Kevin Nolan of Nolan Painting in Ardmore, Pa., is less worried about the costs. ôWe treat all homes the same, whether they are pre-1978 or not,ö he says. ôMy customers donÆt like dust, whether itÆs lead dust or not.ö Though he seals off rooms with plastic and uses HEPA vacs, Nolan does not do wet scraping and sanding because he says theyÆre not as effective as the dry procedures. After working with EPA officials and inviting them to his job sites, Nolan hopes the EPA moves from regulations prescribing specific techniques to more performance-based regulations focused on the results.
Hanbury shares that hope, saying, ôIÆm optimistic that [the regulations] may carve out a whole lot of houses that would not have to be treated.ö
Dollars, but not much sense
Remodelers report that most clients donÆt care about lead and donÆt want to pay extra to deal with it, so keeping up with regulations means additional costs rather than opportunities to increase sales. As for abatement, ôthereÆs very little market demand from private homeowners,ö Hanbury says. ôTo do abatement full time, remodelers have to be really good businesspeople to follow the rules absolutely and still figure out how to make money and not be sued.ö
Nolan uses the EPAÆs Renovation Disclosure Rule as an opportunity to do a sales pitch on the safe practices his company uses routinely. He says the EPA pamphlet Protect Your Family From Lead In Your Home and accompanying lead-disclosure discussion donÆt necessarily increase his sales, but do reinforce the message that his company does good work. ôWe are more expensive than some of our competitors because we offer a higher level of service, including containment and cleanup,ö he explains.
Other remodelers view the pamphlet as a big nothing. Byrd finds that many homeowners seem uninterested.
But there are remodelers who donÆt consider the pamphlet so benign. Jeff Rainey, CR, of Home Equity Builders in Great Falls, Va., says that when homeowners read the pamphlet or listen to the contractorÆs talk about lead paint, it opens a PandoraÆs box by moving owners to get their homes tested for lead. A positive test brings another layer of cost for the remodeler: The estimate for stepped-up lead-paint-handling procedures can be noncompetitive, or the remodeler might lose the job to an abatement contractor. Sometimes homeowners drop their remodeling plans altogether.
The Monday after he completed a HUD/NARI class on safe practices, Rainey was scheduled to start an addition and window-replacement project for a pregnant client. The training had alerted Rainey to leadÆs effects on pregnancy. ôIt scared the hell out of me,ö he says. He quickly trained his staff, instituted safe practices and asked the homeowner to move out temporarily. Rainey ended up losing money on the job.
High costs are the main reason Byrd no longer wants HUD work, despite being HUD-certified. The first six years his 8-year-old company, Qx2 Contracting, was in business, 90% of ByrdÆs work was on HUD projects. That figure dropped to 10% in 2001. Why the sea change? ôMy market has shifted, thatÆs one reason,ö he says. It was serendipity, he adds, because he no longer could justify the increase in overhead caused by meeting HUD requirements for handling lead. Providing respirators for all crew, fitting them, maintaining them and documenting all this was ôthe biggest sleeperö in the cost arena, he says. ôWe figured an easy $500 a year per employee just for this.ö Then there was the cost of training, measured in direct cost as well as lost production time because production slows to accom-modate stringent job-site protection measures. ôYou price yourself out of the market when you add this to the estimate,ö says Byrd.
ôWe did all the [required] paperwork and got outbidö by less compliant companies because ônobody requires the paperwork to be turned in,ö he adds.
In addition, most insurance policies exclude coverage of lead and other hazardous materials. Byrd found a two-year lead abatement liability policy with Commercial Special Risk Management Inc. that would have cost $1,500 a year. In 2001, for the first time, Nolan, whose primary business is painting, got supplemental coverage from Erie Insurance to cover lead at an annual cost of $6,000. ôInsurance and the standard-of-care issue,ö Hanbury predicts, ôwill be the biggest problem for any residential remodeler with any assets to lose.ö
What are your choices? Walk away from HUD projects and jobs involving pre-1978 housing; plenty of remodelers are doing so. Walk away from clients who look like trouble, such as those with older homes or small children. Go after low-risk jobs; ôIÆve done lots of roofs, vinyl siding, additions and basement renovations,ö Byrd says. Use subcontractors. ôI have all subcontractors now,ö Byrd says. ôI choose subs that accept the risk, and all my subs have to follow the guidelines of regulations I follow.ö This reduces his risk somewhat, though heÆs still liable if his clients are exposed to lead through negligence on his projects.
Or wait long enough, and the problem just might go away. HUDÆs 2000 National Survey of Lead and Allergens in Housing showed that just 50% of pre-1980 houses contained lead paint, compared with 83% of such homes in its 1990 National Survey of Lead-Based Paint in Housing. In homes built from 1960 to 1978, that number drops from about 65% to about 25%. HUD says part of the reason for the decline is a revised research protocol that is much more accurate than its predecessor, but adds that the main factor is all of the renovation, remodeling, demolition and paint removal that occurred in the 1990s.