Lead safety: Lawsuit fights for the right to choose

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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