Collins The Trend Tracker
by Mike Collins
April 12th, 2010

Living with Lead Rules

When I spoke on January 26 at a meeting of the Northeast Window and Door Association, I was asked of the likely impact of the new EPA lead rules. I have to confess that, as recently as that date, I was completely unaware of the pending rules. The problem is that many manufacturers were also unaware, or at least unclear, about the rules at that time, too.

I attended a presentation in March at Fenestration Day in which a presenter from Gorell Windows and Doors explained how they’ve taken a proactive approach. Numerous employees are certified in lead safe practices and they’ve begun hosting educational seminars for their customers. I couldn’t help thinking during the meeting that some of the manufacturer attendees were probably realizing that they hadn’t taken sufficient steps to prepare.

Technically, the rules focus on companies that actually replace windows which means it doesn’t apply purely to manufacturers. The problem is that, if there are problems stemming from unsafe lead practices, the homeowner will look to the party in the chain with the most money. That will typically be the manufacturer, rather than the dealer or contractor. Exacerbating that reality is the fact that, like many new government policies, the implementation of this policy has been highly flawed.

Even the individuals hired to train others regarding lead safe practices apparently have widely differing views of the requirements of the law. There have been numerous articles in DWM explaining the onerous methods window installers will need to take in pre-1978 homes. Suffice it to say that there will be more people at the job site in hazmat suits than if E.T. had Asian Bird Flu when he landed. One area where the instructors differed was how the plastic generated by all of these containment measures should be treated – hazardous waste with special disposal requirements or standard trash thrown in your dumpster. There are thousands of dollars and numerous potential fines and violations between those two extremes, so which is correct?

The bottom line is that manufacturers heading for April 22with insufficient plans in place need to conduct a lifeboat drill on this topic. At that the least, they should consult with an attorney who is knowledgeable about the new lead rules. Manufacturers with whom we’ve discussed the upcoming rules have said they will add language to their standard sales contracts with dealer and installer customers to disclaim any liability for the customer or installer’s failure to properly follow safe lead practices. I don’t know if that will work, but it’s worth exploring. Manufacturers that find themselves behind the curve must act quickly to try to establish some sort of shield in the face of some pretty daunting EPA rules. If they’re coming to that realization a little late, an attorney is probably the right place to start.

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  1. It is mind boggling that our judicial system continues to let litigators go after the deep pockets that have absolutely no connection with the actual violation. How in the world does the manufacturer have any responsibility to an installer of their product.

    What if a guy slams a window over someone’s head, for the purpose of doing harm to the recipient? Is the window manufacturer liable for that crime? Obviously not and passing the liability to manufacturers for violations of the lead containment act is equally irresponsible.

    The judges need to get past this. I heard that California (some years ago) was proposing legislation to prevent or limit this type of situation. Yes, this is a democracy and that is what allows attorneys to test these kinds of things, but surely there must also be a guideline that makes common sense that judges can refer to.

    America continues to spend money it doesn’t have and this just adds to the pie. The lead paint act has not created jobs that are sustainable and has caused many people to look in other industries for work. Trading jobs is like trading dollars, except the alternative jobs generally pay less.

    To date, I have not seen any documentation that qualifies that lead contamination in children and others has been the direct result of home improvements. I can think of several other ways for children to be exposed to lead in their everyday lives. If someone can produce a study that incorporates all the possibilities for lead contamination in humans, I would be very interested to see it.

    People have work done on their homes but a large number of improvements are done by homeowners themselves. It is conceivable that contractors are being punished for being in the right place at the wrong time, ie a window is replaced and a child gets sick, but the homeowner just scraped the walls and repainted, and so on.

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