Lead safety: Lawsuit fights for the right to choose

The Environmental Protection Agency earlier this year began requiring contractors who work on pre-1978 homes to get certified and follow strict protocol to contain dust from lead-based paint.

Some contractors and consumers disapproved of the regulation and, despite the EPA's decision to delay enforcement, the agency now faces a lawsuit by industry advocates.

Amy Chai, an attorney for the National Association of Home Builders, which is spearheading the suit, says the group believes the EPA should not have removed an opt-out provision that would have permitted homeowners to bypass the lead-safe work practices in some instances.

"It was a common-sense option that allows consumers to make the decision for themselves, except where children under 6 or a pregnant woman resides in the house," Chai says. "They could make choices for the levels of protection they wanted."

Angie's List member Steve Trunk agrees. "It seems like killing flies with a sledgehammer," says Trunk, who lives in a 1927 home in San Diego.

Trunk acknowledges the dangers of lead paint, but says homeowners should have a choice. "There are many of us of boomer age who grew up with lead paint, inhaling things with DDT and riding around in cars without seat belts, and we're fine."

Maria Doa, director of the EPA's National Program Chemicals Division, declined to comment on the lawsuit, though she defends the agency's decision to remove the opt-out option.

"Kids and pregnant women who live next door to a home where they're not using lead-safe work practices can be affected," Doa says. She adds that lead toxins can also affect older children and adults.

Jonathan Wilson, deputy director of the National Association for Healthy Housing, points to similar protections. "A family could opt-out and within a month sell their home to a family with children," he says. "[Or] you may be an older family, but have visiting children."

Known as the Renovation, Repair and Painting Program, the EPA rule requires contractors to get certified in lead-safe techniques if their work disturbs more than 6 square feet on the interior or 20 square feet on the exterior of a home built before 1978, the year lead paint was banned.

The NAHB's lawsuit was filed in July with the U.S. Court of Appeals in Washington, D.C. Parties include the Hearth, Patio & Barbecue Association, the National Lumber and Building Material Dealers Association, and the Window and Door Manufacturers Association.

David Merrick, owner of Merrick Design & Build in Kensington, Md., and chairman of the National Association of the Remodeling Industry's government affairs committee, says the lawsuit is probably justified, but has brought some negative attention to the industry.

"Remodelers are not in favor of poisoning small kids with lead paint," he says. "That's not at all what NAHB's lawsuit is intended to do, but that's the way it's been interpreted."

Both organizations did applaud the EPA's decision to delay enforcement, acknowledging the challenges of certifying everyone before the April 22 deadline. The EPA gave individual workers until the end of September to enroll in a training course and firms until this month to become certified.

By press deadline, 433,000 individuals had been trained - up from about 160,000 on April 22. EPA originally projected a need to train 236,000 individuals.

In the wake of the rule's implementation, contractors continue to raise concerns about the costs of complying, which the EPA estimated at $35 per job on average. The NAHB estimates it could cost as much as $2,400, depending on the job's size.

Homeowner Bernie Brady of Washington, D.C., recently got estimates for replacing 26 windows in her 1930s-era home, and says one contractor asked for $100 more per window to comply with the rule. "The government is giving a credit to save energy, but this is taking it away," Brady says.

Todd Zeiger, director of Indiana Landmarks' northern regional office, says he's concerned home buyers will avoid historic properties because of the higher costs of renovations. "They'll wonder if it's worth the hassle and think, 'I'm just going to go buy a new house out in the 'burbs.'"

At press time, the lawsuit was still in its early stages and no trial date had been set. Merrick says compliance hasn't been "too burdensome," but he wants to see the full effects of the regulations before the EPA institutes further amendments.

The EPA took comments through early August on changes that would require multiple dust-wipe tests to monitor lead levels during certain jobs, versus a single wipe test at the end. "I'd like to see the EPA working in partnership with the industry to provide workable rules," Merrick says.


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Comments

If people are made more aware of the dangers of lead poisoning great. I have taken the class and It seems to have good intentions. If this turns out to be a "power grab" or a way to fine small businesses then all of us men who work for a living can fight that together. Until then lets do our best to comply and do our best to contain or limit the lead dust. Fill out the paper work. Lets try to relax and not assume the worst. Keep track of the cost of doing the work and adjust your price accordingly. I find that if i honestly believe that my pricing is fair I am able to sell my service more often than not.

If they really wanted to take care of the lead problem why not replace the 90 year old lead pipes that bring water into our homes. The amount of lead ingested from lead paint is nothing compared to the amount of lead ingested from lead water pipes. The answer to this question is of course that this has little to do with lead poisoning and everything to do with controlling our lives and increasing costs for customers and contractors. This is a power grab by an unelected bureaucracy called the EPA. These are the type of issues that our elected officials should vote on. This is a serious infringement of our rights and we should make our representatives aware of it. When the government is doing something without our say for our supposed good, we are no longer self governing people but subject to an all knowing government. As far as I'm concerned this issue is more about our rights being threaten than about lead paint.

I am 60 years old,live in Augusta maine and have been a house painter sense I was 16yrs old and started out working for my Dad. I am enclosing my lead paint results I had taken at the VA in Togus,Maine on 3/08/10 which is a {5} I took the lead paint class and they told us 0 to 10 is acceptable and my instructor had a (3) they also told me at the VA that I had no worrys at all with being under a 10 and again I have been painting for 44 years. The lead paint is not as bad as they want you to believe it is unless your a kid eating the paint on the window stools. Please let them do some studies on this and test some paint contractors that have been doing it for 5 yrs or more. MY biggest complaint is working on the 6 mil. plastic they want you to put down 10 feet from building to catch the paint chips out side when you are scraping a house or a garage etc. I do not feel save at all working on the plastic. I have always used a drop cloth to catch the chips and put them in a garbage bag. There will be many people that will be getting hurt working on the plastic through out the usa.People need the money and will not stop scraping because it rains a few drops and they also want you to wet scrape so people will be using a garden sprayer to wet the clabboards down with. I am truely surprised that OSHA will allow this because it is very dangerous working on plastic. People will be having law suits against EPA because they are made to work on the plastic and will be getting hurt. I have sprayed a ceiling once inside with plastic over basement floor and I have never in my life walked on any thing so slippery and much worst than ice when it is wet. who ever wrote up these rules have no idea what it is like trying to put 6 mil plastic up around scrub brusses, plants, flowers etc while trying to get a ladder in there to paint and it is plain stupid to work on wet plastic and any breeze will blow the paint chips onto the ground and if we were allowed to use a drop cloth I have never had any problems with the chips blowing off unless the wind blowed real hard like around 40 mph. This 6 mill plastic is really thick and will be filling our land fills and it takes 1000's of years to deteriorate.The risk out way the benifits.I for 1 do not want to work on plastic and get hurt.some one must be buddies with some one in OSHA to allow this. Can the EPA tell us how many people have died from construction done on there pre 1978 houses. I also sent this letter and more to senator Susan Collins. Please write to your senators to get the Opt-Out reinstated

I quit! After 29 years in business, to suggest that fixing a window is "killing kids" is way over the top. I don’t know how we are going to make a living, and after going through the loan mod to save our home, this epa law has caused so much fear of what is and isn’t legal for a carpenter to do is to much fear! I just want to practice my trade! For 30 years, I have to live with the government telling folks, I have been killing kids. Unbelievable! The EPA lied to the public and stated the cost was “35 dollar” per job? Lying to the feds is a prison sentence. So whoever stated this 35 dollars to deceive the public should face the Martha Stewart law that sent her to prison for lying to federal officials! I will wear a space suit in 105 degrees so a few paint chips will not get on me. I have had heat stroke in my youth. I am 52 years old! These Bast#rds are trying to kill! I just paid off my backhoe! It is only 4 years old. The Cal EPA sent a letter stating I’m polluting the air. It has 400 hours, and I bought it in 2004! They want me to spend FIFTEEN thousand dollars to comply! I quite! I can’t take it any more! Working as a fricken laborer in USA is a crime! If al-Qaida takes over, will they get rid of the EPA? My wife would wear a burka if it meant saving her house! What the heck is the benefit living under a double standard with these insane officials who are immune from obeying law!

Can anyone update me as to the status of the lawsuit filed against the EPA?

a small painting contractor just finished painting my older home. After they finished, the shop-vac-ed all all the scraped paintchips inside the window wells and on the ground outside. I loved it! Everything neat and tidy when they finished. When I complimented them, they said they did it because of this new lead-paint licensing requirement. So I say THANK YOU to whatever lawmakers or bureaucrats are responsible!

I'm a small time residential contractor servicing the upper class clientele for 30 years who expect nothing but the best...and I give it. I also believe in being Greener. I have kids and grand kids. I have been debating if I should get certified. I've contacted building inspectors of local municipalities in Pennsylvania wanting to know if it's a requirement to be certified prior to pulling a permit...NO. The state does not mandate..so they don't require. So what's to prevent me from doing the work? A $35,000 fine...good luck with that!!...my pockets are empty! I would call OSHA on myself and when I get to court...what do you think the Judge would have to do...It's a wash! I'm in violation by one or the other if I follow one or the others requirements! In fact, OSHA has more stringent rules about the workers safety than the EPA! EPA mandates a homeowner to get a certified contractor..but if they do it themselves do they get fined? Let's get real here...I'm compassionate but think of where the most concentrated areas of lead paint is and the class of people who would allow their child to nibble on a window sill...Yeah!..the downtown areas! But you say we are protecting the less fortunate children because of their parents inabilities to raise them ...seriously, that's the kids least of problems! Heck, all children are nibbling on lead and other toxic chemicals on toys from China...but do nothing about that!! Already the downtown areas are falling apart with crime and lack of renovations...do we really think these people who are usually on some sort of Gov. assistance are going to pay extra let alone pay anyone in the first place to do renovations...well now the EPA has just kept out the people with the money who want to revitalize our downtown areas...And do they think the slumlords are going to adhere to the law? It's already hard to explain and justify to my clients why building costs are so high...most of my clients sit behind a desk, collect a pay check, and have no clue the realities of construction...they just want to see the final results...Much like the idiots behind the desks at the EPA...wasn't it a majority of EPA pencil pushers this year who got caught watching adult web sites on their (our) computers at work paid by the tax payers! Real great minds at work!! Some of these idiots were making $200K a year!!! I have sales of $200K a year, but after all the expenses I'm lucky if I'm left with $30K in my pocket! You say that's not bad...but do you know how many hours I have to work to get that...I'm probably below min. wage!...but recent TV interviews determine the idiots in DC don't even know what the min. wage is! Like the GOP party leader, Steele! Nice for them! Seems there are more people PO'D about this than not...contact your Gov Representative and voice your complaint. I would love to work on a EPA agents house that fell into this category...they'd probably pay me under the table so not to be victim of their own rule! This is another policy without supervision or policing that will be forgotten in years to come and all you poor saps paid all that money to be certified! I already know certified contractors who were convinced this would be a way to add to the bottom line...well they have scraped the procedures because it's a pain in the butt and found it's impossible to contain all the dust...so it's business as usual! Inform the homeowner, but let the homeowner decide..it's their property! It shouldn't be a law!This country is leaning backwards...not forward. What's next?...mandates for sanding spackle because it causes lung cancer or the use of Acetone because it detroys brain cells! It doesn't take fumes to destroy brain cells...adult websites do!

I just had replacement windows put on my 1971 home. They had to scrape through layers of paint, down to the primer to find lead. They spread heavy (and previously used) plastic on my bushes and grass, killed one of the bushes and damaged others (sauna effect). Plastic over every window inside too. Cost me over $100 additional per window. Installers wore no protective gear, and no dust masks. It was a big expensive show for no reason at my house. We are adults only. The installers however are scared to not comply because of a huge fine they will incur for non-compliance. Home owners need to be able to opt out. Once again, this is the case of the government and the politicos believing we are TOO STUPID to take care of ourselves.

If this is all about the goverment protecting people from the harmful effects of lead paint then why can a homeowner do anything they want to their home without having to follow any government rules or guidelines pertaining to the the paint rules and requirements? If a homeowner can go buy windows at a big box store and install them in their 100 year old home full of lead paint then they should also be liable for any legal ramifications. Since the government does not care about their safety in this example then it obviously is not about protecting people. This is nothing more than the government looking for more ways to create revenue by enforcing ridiculous fines on small business people just trying to make a living and creating employment. They need to get money from someone and it is easier to get it from a small business than a homeowner. The government just keeps trying to protect us from ourselves in every instance they can. So much for the energy tax credit because it is now eaten up by the extra costs of implementing the lead paint rule.

No kids nearby? Well, someday there will be, and lead doesn't disappear. Ever. Many, many old houses already sit on soil permanently contaminated by decades of flaking, peeling exterior leaded paint. It is not unfair to expect contractors and handymen and painters and homeowners to avoid contributing to the toxic load, and it's astonishingly short-sighted to disclaim responsibility.

thank you obama

this is done to make millions for lawyers not to protect the public. I have been working in older homes for 31 years with no health problems.

As a homeowner it has become a nightmare to get the trim painted; when enforcement began the painter increased the quote by $2100. We have four older adults in the building and yet have to worry about this; it is ridiculous. Now the painting is indefinitely delayed!

The painter who did the trim on our house did an excellent job. Since the housing downturn he had been living in his truck and we were happy to give him work. People like this WANT to work and are hurt by ham-handed rules like this. How can he afford all the materials he needs to cover everything (and himself) and then throw away? There are no children living anywhere within breathing distance of our house.

The EPA is requiring all this training of an industry that already is hurting economically. A Mom & Pop hand-to-mouth remodeler can not afford the time off (but will do so if needed) but certainly can not afford the cost of trainings ($300-$600) to do low end remodels. Larger contractors can not afford to pay to train all their employees, when they are just trying to keep from laying them off! Often since people are out of work, they are buying properties to fix up to sell or rent, making do with materials they scavenge from close-outs and their wood piles. They can not afford the additional cost of the trainings and licenses. So, they will risk being fined at thousands of dollars per day for non-compliance. Then they will file for bankruptcy. This seems unfair to people who are trying hard to keep off the dole by working to support their families. The training and licenses should be free as they are for health issues and virtually all contractors in all fields need the same information for the work to be done correctly. It is not playing favorites to any particular industry for the taxpayers to pay for this training AND it will result in better compliance and, hopefully, healthier homes and businesses.

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