As we had previously mentioned and discussed, as of July 6th there is a new Record Keeping Requirement that affects all contractors working on Pre78 Target Housing. Unfortunately, it appears that what the EPA stated it was going to be & what they posted on the E-CFR site is slightly different. Hmmm, they couldn’t possibly trying to cover up that loophole we pointed out – could they? Well with just a few mouse clicks, they have now managed to affect every single renovation that happens on any pre78 houses – with or without lead present.
First, I need to rant for just a few seconds & ask what does it take to get a job at the EPA to write up their regulations? If a high school, or lord forbid, a college diploma is required – the state of our education system is apparently in really bad shape. What makes this entire episode even funnier, is I pulled a quick search on “writing regulations” & the EPA’s site was at the top of the search results on Bing.
Let’s be honest – in its simplest form a regulation is nothing but an outline. You start with a crazy number like 745.82 and follow it up with sections, sub sections, etc… Every line needs to have some form of writing on it, whether it is a paragraph or just a heading. Hell, leave it to the Archives Department to actually come up with instructions and regulations on how to “Write Regulations for the Federal Government”. Now to top this all off, if you pull the same search via Google, the first result is for another government site on writing a plain language regulations that I suggest the EPA visit.
Now while I can fully understand how hard this might be for someone in one government agency to talk to another agency, I do have a solution. Nope, you do not have to call another agency or even read the regulations on creating regulations. You can actually handle this all in house, with hardly any issues. First, I know the Federal Government uses this nice little product from Microsoft called Word. This program actually has quite a few bells and whistles, but two stand out. First is this awesome thing on creating an outline. You can customize it to how you need it to make your regulation look like a regulation. The second nice option is called “Find” & I will explain this below. Seeing I am in a generous mood, a bonus third tool for you – Spelling & Grammar checking – all it takes is one click of the mouse button.
What the EPA just did:
As mentioned in our prior article the new regulation only applied to those CLR’s employing Lead Testing or utilizing Dust Clearance Testing & should look like this:
(c) When test kits are used, the renovation firm must, within 30 days of the completion of the renovation, provide identifying information as to the manufacturer and model of the test kits used, a description of the components that were tested including their locations, and the test kit results to the person who contracted for the renovation.
(1) When the final invoice for the renovation is delivered or within 30 days of the completion of the renovation, whichever is earlier, the renovation firm must provide information pertaining to compliance with this subpart to the following persons:
Instead, what they pulled was this:
(a) Firms performing renovations must retain and, if requested, make available to EPA all records necessary to demonstrate compliance with this subpart for a period of 3 years following completion of the renovation. This 3–year retention requirement does not supersede longer obligations required by other provisions for retaining the same documentation, including any applicable State or Tribal laws or regulations.
(b) Records that must be retained pursuant to paragraph (a) of this section shall include (where applicable):
… a whole bunch of stuff, and then …
(c)(1) When the final invoice for the renovation is delivered or within 30 days of the completion of the renovation, whichever is earlier, the renovation firm must provide information pertaining to compliance with this subpart to the following persons:
In case you are wondering where (c) went, you are not the only one & that does cause a major issue. Based on how regulations are written (especially their poor excuse for one), this reporting requirement now applies to all renovations completed on any target housing. In case you forgot what target housing really means – it is:
Target housing means any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing) or any 0-bedroom dwelling.
But wait, there’s more:
§ 745.81 Effective dates. (2) (ii) On or after April 22, 2010, no firm may perform, offer, or claim to perform renovations without certification from EPA under §745.89 in target housing or child-occupied facilities, unless the renovation qualifies for one of the exceptions identified in §745.82(a) or (c).
(3) Individuals . On or after April 22, 2010, all renovations must be directed by renovators certified in accordance with §745.90(a) and performed by certified renovators or individuals trained in accordance with §745.90(b)(2) in target housing or child-occupied facilities, unless the renovation qualifies for one of the exceptions identified in §745.82(a) or (c).
Oops – 745.82 (c) was the opt-out provision which was also just eliminated – maybe they ought to try using the “find” feature next time. Another member named Michelle from By Design of Maui, after reading about all this started thinking of the theme music of the Three Stooges. I don’t know, I think some people might find that insulting to their memory, but to each their own. Personally, the song “Oops, I did it again” comes to mind…
After countless Senate hearings & letters, where the EPA said everything was fine, no delays are necessary… they decided to delay enforcement in order to help everyone comply not 10 days in. (EPA & HomeStar Updates article) Well, well, they have now extended that till late October & according to a few off the record talks with the EPA, we might not see any enforcement until next year after they see which way the political winds are blowing.
And another one?
The public comment period for Mandatory Third Part Testing has been extended until August 6th. If you have not posted a Public Comment for or against this proposal, I urge you to get it in soon. In fact, if you happen to belong to the NHBA, they have a customizable form that you can utilize to voice your opposition to it.
NAHB, WDDA, & others sue the EPA:
The NAHB has released a press statement where they have joined forces with other organizations such as WDDA over the removal of the Opt-Out provision. Seeing the removal of the Opt-Out was part of the Sierra Club court settlement, this might get interesting. If the NAHB thinks this will help stem the flow of members leaving the organization, they had better think again and they will need to up their game.
Here’s a novel thought for you – fight the entire package. While lead is an issue, the EPA’s implementation of the program will harm more children than it could possibly help. Come on, those of us that actually comply, are the ones that work safely & cleanly. It is the ones that ignore this regulation, that are now being propped up by the EPA, and now get to cause more harm. Imagine if the EPA actually spent the money blown on this program, actually educating individuals on lead & encouraged people to hire NARI, NAHB, NADRA, WDDA, NKBA, etc… members as they have agreed to work not only ethically but also cleanly.