Is this Worth Considering?

[bconley]

There is no doubt that this thing has everyone one of us (justifiably) flipped out and hunting for the magic bullet. I’ve read and heard everything:
- outright retirement from the industry
- I’ll take my chances by skirting the law
- we’ll do our best and hope for the best
- it’s no big deal, just fill out a few forms, pay your fees, and do business as usual
- we’re flat walking away from ANY project pre-1978

BUT ... I think we all have a better solution available to us.

One of the best kept secrets about this whole process is that MOST homes from the mid-1940's on don't have ANY lead paint on their interiors (mid-1960's for the exteriors). That information comes from a company we work with which has done over 9,000 XRF (x-ray flourescence) lead building certifications. They report that at least 80% of the pre-1978 properties they test have NO lead. The EPA just picked 1978 as the date when we can ASSUME lead-free WITHOUT testing ... but they never say anything about WITH testing.

Of all the MANY ways that the EPA has bungled this whole process, the single biggest one (in my opinion) is by teaching everyone to automatically ASSUME lead in anything pre-1978 rather than teaching us to simply TEST FIRST, thus saving upwards of 80% of the headaches, hassles, and liabilities they're forcing on us.

Many certified testing companies which have the XRF technology can give you a written certification in a matter of hours for somewhere between $300-$600 (depending on the size of the area you're remodeling) which will tell you exactly whether or not the property actually contains lead. So think about it, for a few hundred dollars up front (billable to the building owner) it's possible to safely and LEGALLY exempt close to EIGHTY-PERCENT of all your pre-1978 projects from the regulations entirely!! That means no assumptions, no headaches, no daily documentation, NO INCREASED LIABILITY down the road, etc., etc. etc. After a clean certification, you just price and conduct the project like any other.

CONVERSELY ... if the results do come back positive, then you have WRITTEN proof to show your client why they should be concerned and why your price is fully justified in being adjusted/increased. This also will knock out any of your less-prepared competition that's going to try to undercut you by skirting the law. The homeowner will now know they can't go that route and will know they have a legitimate issue in their homes that needs to be handled (and paid for) appropriately.

And, if you still don’t want to deal with the lead liability at all, you can now at least make an INFORMED decision based in fact. Rather than just walking away from anything pre-1978 based on a random blanket company policy, you can still pursue the majority of those jobs for your company and simply explain to the remaining minority that your company has elected not to pursue projects with known lead existence. (80% of something vs. 100% of nothing...)

Also, many people have been floating different types of disclaimers, waivers, and other language they plan to add to their contracts. Multiple legal advisers from the national level all the way down have said that NO level of disclaimer or hold-harmless clause will do ANY good in court. To that point, I have an associate who is a certified Lead Abatement contractor at the federal level and does expert witness testimony for property owners almost monthly. He told me last week that he has yet to see any type of signed waiver / disclaimer hold up in court in 6 years worth of trials.

SO ... the clause to put in our contracts instead, is one which says that any pre-1978 property owners need to agree to and pay for an initial XRF test certification BEFORE any work starts or final pricing is committed to; and that if lead IS found then pricing will be adjusted accordingly to allow for the proper remediation as required by the regulations. (Or that your firm chooses not to pursue the project at that point and will refer them to a colleague who handles those types of buildings.)

Let’s not run from this thing or let it bury us. Let’s use technology and fact to take control and make accurate decisions for our companies, our employees, and our clients. The EPA and the various state agencies may not want to educate us properly, but if we do it ourselves, we can take the upper hand on this and guide our companies to the successful outcomes we all work so hard for everyday!

I found this on another forum, I haven't had time to check out this XRF or if this strategy is plausible.
Thought I would share and get your thoughts.

[afkama]

I've said it before. We've been testing for a long time.
Almost all the housing stock in SF is pre 78
We have rarely found lead.

We have had to use lead safe practices no matter what the testing shows.
This will be less liability for me.

I couldn't tell you the percentage of our projects that test positive exactly, but it's probably under 5%.

[OGStilts]

In Illinois, if you test and you find lead then you no longer have the option to just do the protection measures the EPA is requiring. If you find lead, you are then required to bring in an abatement company costing 10's of thousands of dollars. If you don't test, then you can just assume and do what the EPA is requiring.

I don't know if this applies elsewhere, but I don't think homeowners will like you gambling with their money.

[Silvertree]

I won't test because it may end up with the HO hiring an abatement firm instead of getting their bath remodeled.

Its a tough call sometimes.
On lead disclosures you only need to acknowledge there is a chance of lead being present.

[J.Renza]

That,s a hell of a good question.

First,I think you have to consider how much disturbance you will be doing.
If it's minimal,skip the test.
On a one room gut,it almost seems it would be a wash,since you would probably be using
dust control anyways.
Bigger than one or two rooms,you have to start considering the odds as to
whether lead may be present.
This is going to depend on your location and the age of the house.
If your going to gamble by doing the test,it's always good to know the odds.
It seems there has to be a point where doing the test may save some time if no lead is found.
As afkama said,he's rarely found lead.

I'm still having a hard time wrapping my head around all the RRP rulings.
As long as you don't test,and take all the precautions,you can do some demo.
If you test and find lead,you have to call an abatement firm.
Doesn't make sense to me,and makes me think that mandatory testing may be next.
The EPA is allowing you to do what an abatement firm should be doing,only without testing first.

[JasonW]

I won't test because it may end up with the HO hiring an abatement firm instead of getting their bath remodeled.

Its a tough call sometimes.
On lead disclosures you only need to acknowledge there is a chance of lead being present.

Abatement only comes into play if your contract say's you're removing the materials because it's lead based. As long as you're sure to exclude that language or anything close to it, it's not abatement.

It's that simple...

[J.Renza]

I guess I'll have to wait till next week when I go
to my class and see what the instructor's interpretation
is locally.

From what I've been reading:
If you don't do the test and take the precautions as per RRP,
than you can remove material because your doing a renovation
that needs some old material removed.(even though it may have lead)
But you can't remove that same material if you know it has lead?
Whew!!!

Then I go to the Kachina training site they state:

WHAT DOES A CERTIFIED RENOVATOR ACTUALLY DO?
The certified renovator should be thought of as the job “manager”. He or she is responsible for:

* Test for lead paint.
* Making sure the job is conducted using lead-safe work practices. The certified renovator can do the work personally, or can direct uncertified workers to do the job except that the certified renovator must perform the post-renovation cleaning verification;
* Providing training to uncertified workers on lead-safe work practices; Making himself or herself available at the job site during key stages of the job, and at other times be available on-site or by telephone; and
* The certified renovator can also use an acceptable test kit to determine whether lead-based paint is present in affected areas.

[JasonW]

I guess I'll have to wait till next week when I go
to my class and see what the instructor's interpretation
is locally.

From what I've been reading:
If you don't do the test and take the precautions as per RRP,
than you can remove material because your doing a renovation
that needs some old material removed.(even though it may have lead)
But you can't remove that same material if you know it has lead?
Whew!!!

Then I go to the Kachina training site they state:

WHAT DOES A CERTIFIED RENOVATOR ACTUALLY DO?
The certified renovator should be thought of as the job “manager”. He or she is responsible for:

* Test for lead paint.
* Making sure the job is conducted using lead-safe work practices. The certified renovator can do the work personally, or can direct uncertified workers to do the job except that the certified renovator must perform the post-renovation cleaning verification;
* Providing training to uncertified workers on lead-safe work practices; Making himself or herself available at the job site during key stages of the job, and at other times be available on-site or by telephone; and
* The certified renovator can also use an acceptable test kit to determine whether lead-based paint is present in affected areas.

That's incorrect. You can't remove it for the propose of removing lead based materials, unless you're an Abatement Firm. If you're removing it because it's old and the owner wants something new, it falls under the RRP rule.

Careful how you write your contracts fella's...

[J.Renza]

I wonder if they realize they left this big loop hole in their rulings?

[JasonW]

I wonder if they realize they left this big loop hole in their rulings?

I don't see it as a loop hole; more as a definition.

If they want to hire you to removed lead based paints and materials, it takes a little more to insure you've done that (3rd party testing, stricter containment areas, and higher insurance rates across the board).

I plan on never mentioning the word "lead" in any of my contracts.;)

[J.Renza]

Definition,
Okay,I'll go with that.
I guess it has something to do with our intent.
Since we approach the job to improve an area our intent is remodeling.
If we go to the job intending to remove lead tainted material,it's abatement.
Kind of an incidental removal of tainted material.
I just hope the Insurance Co.'s consider it incidental and keep our rates low
for pre 78' work.

[Bodger]

Why not just call a lead abatement company, test for lead, if lead is present have them remove it in the areas where we'll be working and go about our business?

It might cost more, but it's the homeowner's problem to begin with, not ours.

Is this approach not possible or feasible? It's what I have always done with asbestos, what's different about this?

[Splinter]

Why not just call a lead abatement company, test for lead, if lead is present have them remove it in the areas where we'll be working and go about our business?

It might cost more, but it's the homeowner's problem to begin with, not ours.

Is this approach not possible or feasible? It's what I have always done with asbestos, what's different about this?


Alright, this thread was dormant for awhile, but I want to answer Bodger...

You're assuming the homeowner will have no problem coughing up the tons of extra cash to the lead abatement firm...
The majority of homeowners just see the bottom line, and on Long Island, the land of a bazillion contractors, they'll easily find someone else to skirt the rules and crank out their bathroom remodel for less.

I lose 25% of my leads before ever seeing their homes because they dont want to pay for properly licensed electricians and plumbers, and PERMITS. They know they'll get Joe Remodeler to take care of all of it himself at half the cost.

[Bodger]

I see your point there. Especially with the economy the way it is.
But, if I had a client that was willing to cough up the dough for a lead abatement, would I still have to be certified to continue on with the remodel after a full-on abatement had been done?

[bconley]

I see your point there. Especially with the economy the way it is.
But, if I had a client that was willing to cough up the dough for a lead abatement, would I still have to be certified to continue on with the remodel after a full-on abatement had been done?
No, lead abatement is the removal of all traces of lead.
You wouldn't have to hire an abatement co., a RRP cert. firm can do the work for you.
And yes you can continue with the remodel, the rule only applies when you are disrupting components containing LBP

[Bodger]

No, lead abatement is the removal of all traces of lead.
You wouldn't have to hire an abatement co., a RRP cert. firm can do the work for you.
And yes you can continue with the remodel, the rule only applies when you are disrupting components containing LBP


I'm sure it would be cost prohibitive over the long haul, but it sounds like it might be feasible on certain projects to let someone else deal with the lead (and the liability).

[JasonW]

I'm sure it would be cost prohibitive over the long haul, but it sounds like it might be feasible on certain projects to let someone else deal with the lead (and the liability).

I disagree with this in a big way. The only time I would ever bring up Lead Abatement is if the Homeowner told me they were removing the materials because it contained lead.

If it's a 30k Remodel job, they already think it's gonna cost 20k or less. I wouldn't even consider the thought of introducing the same project for 80k by turning it into an Abatement job.

You'll be out of business fast doing it like that.:surrender:

[WarnerConstInc.]

Not really.

Sub out the demo to a company that has their rrp stuff in a row.
That seems relatively harmless and much easier.

[Bodger]

I disagree with this in a big way. The only time I would ever bring up Lead Abatement is if the Homeowner told me they were removing the materials because it contained lead.

If it's a 30k Remodel job, they already think it's gonna cost 20k or less. I wouldn't even consider the thought of introducing the same project for 80k by turning it into an Abatement job.

You'll be out of business fast doing it like that.:surrender:


Do you mean removing all of the lead in the whole house? Or just the areas affected by the reno.

If only dealing with the areas involved in the remodel, it might not cost much more to have someone else do it, let the homeowner hire and pay them and keep it off my plate.
I'm not saying this is feasible, just asking.

[JasonW]

Not really.

Sub out the demo to a company that has their rrp stuff in a row.
That seems relatively harmless and much easier.

You can do that. Just make sure you're you're "Firm Certified" even if you wish to sub that work out. Or let them contract directly with the client to avoid the liability. I'm sure they wont try to snag more of the work while you're gone...:laugh3: I didn't see any demo companies at the class I took, mostly Remodelers and GC's.

[bconley]

You can hire a Certified Firm to do the lead work, the general contractor doesn't have to be
the firm, you just have to have one if you're doing RRP work.
It could be your painter or plumber, doesn't matter.
I don't see much liability risk if you document the work carefully.

[JasonW]

You can hire a Certified Firm to do the lead work, the general contractor doesn't have to be
the firm, you just have to have one if you're doing RRP work.
It could be your painter or plumber, doesn't matter.
I don't see much liability risk if you document the work carefully.


Sorry, but that's wrong. You must be a certified firm if you plan on contracting work on a pre 1978 home regardless of who you plan to sub the work out to.

That means you, as the GC, promise to hire RRP trained and certified sub contractors and assume liability for making sure they are indeed certified and following the rules.

[bconley]

Jason,
My understanding is the GC can hire a firm who in turn becomes responsible for the RRP rule.
I asked that question of my instructor and he assured me that is the case.
I've been looking through the rule and don't see where it says otherwise.
How come you believe the GC has to be the firm?
Thanks

[bconley]

EPA (http://toxics.custhelp.com/cgi-bin/toxics.cfg/php/enduser/std_adp.php?p_faqid=6751&p_created=1269618270&p_sid=65s5oCYj&p_accessibility=0&p_redirect=&p_srch=1&p_lva=&p_sp=cF9zcmNoPTEmcF9zb3J0X2J5PSZwX2dyaWRzb3J0PSZwX 3Jvd19jbnQ9ODIsODImcF9wcm9kcz03MTYsNzQ3JnBfY2F0cz0 mcF9wdj0yLjc0NyZwX2N2PSZwX3BhZ2U9MQ!!&p_li=&p_topview=1)
This seem to say its OK to subcontract Certified Firms

[bconley]

By the way I plan on being the Certified Firm on my jobs just because I will know it will be done correctly.
That could change in the future depending on schedules.

[Dean CRCNA]

Just verifying the GC has to be a certified firm

http://toxics.custhelp.com/cgi-bin/toxics.cfg/php/enduser/std_adp.php?p_faqid=6701&p_created=1268924398&p_sid=t2kIsCYj&p_accessibility=0&p_redirect=&p_srch=1&p_lva=6751&p_sp=cF9zcmNoPTEmcF9zb3J0X2J5PSZwX2dyaWRzb3J0PSZwX 3Jvd19jbnQ9ODIsODImcF9wcm9kcz03MTYsNzQ3JnBfY2F0cz0 mcF9wdj0yLjc0NyZwX2N2PSZwX3BhZ2U9Mg!!&p_li=&p_topview=1

[Bodger]

Just verifying the GC has to be a certified firm

http://toxics.custhelp.com/cgi-bin/toxics.cfg/php/enduser/std_adp.php?p_faqid=6701&p_created=1268924398&p_sid=t2kIsCYj&p_accessibility=0&p_redirect=&p_srch=1&p_lva=6751&p_sp=cF9zcmNoPTEmcF9zb3J0X2J5PSZwX2dyaWRzb3J0PSZwX 3Jvd19jbnQ9ODIsODImcF9wcm9kcz03MTYsNzQ3JnBfY2F0cz0 mcF9wdj0yLjc0NyZwX2N2PSZwX3BhZ2U9Mg!!&p_li=&p_topview=1

That pretty well clears it up. I wonder why we don't have to be certified for asbestos. I've dealt with that many times, and hired out the work. Or more accurately, had the client hire the abatement firm to stay out of that liability loop.

[bconley]

That pretty well clears it up. I wonder why we don't have to be certified for asbestos. I've dealt with that many times, and hired out the work. Or more accurately, had the client hire the abatement firm to stay out of that liability loop.

That was my thinking also, we have to hire lead abatement as well.
It makes sense in the spirit of the law to do it this way.