Opting In on Opting Out
The American Architectural Manufacturers Association fully supports the Lead Exposure Reduction Amendments Act of 2012 (S2148), introduced in early March by Senator James Inhofe (R-Okla.). The bill seeks to restore the “opt-out” provision removed from the Environmental Protection Agency’s Lead Renovation, Repair and Painting rule in April 2010.
In 2008, EPA finalized its RRP rules requiring renovation work that disturbs more than six square feet on the interior of a home built before 1978, including the installation of windows, to follow new Lead Safe Work Practices, supervised by an EPA-certified renovator and performed by an EPA-certified renovation firm. The work must then be inspected by an EPA-certified inspector. The original version included an opt-out provision that would have allowed homeowners to waive the special work practices if there were neither pregnant women nor children less than six years of age living in the home.
However, before the regulations took effect on April 22, 2010, EPA removed the opt-out provision because of a court settlement reached with environmental groups. This single action more than doubled the number of homes covered under the LRRP rule without any peer reviewed evidence that it would lower exposure to the target populations.
Although the building industry wasn’t able to voice its opinion on the removal of the opt-out provision before a settlement was reached, new legislation seeks to give affected parties this opportunity. The Sunshine for Regulatory Decrees and Settlements Act of 2012, introduced in early February by Rep. Ben Quayle (R-Ariz.), would make it possible for affected parties to participate in settlement negotiations by requiring federal agencies to take public comment prior to entry of the consent decree with the court.
But now, the building industry is forced to pay the costs of compliance, which is then passed onto homeowners. The required eight-hour contractor training class, which the EPA says costs about $200 per worker, followed by the EPA registration fee of $300 each, is another expense for remodelers to bear in a difficult economy. Then there is the cost of lead test kits, supplies to isolate the work area, replacement respirator cartridges, HEPA vacuum filters and pollution insurance, not to mention lost work days allocated to training.
For window replacement, estimates of the additional costs have ranged between $120 and $200 per window, which could cause homeowners to postpone the work, take it on as a DIY project or bypass the rule by utilizing a non-certified contractor—all of which serve in opposition to the health goals of the RRP rule.
In addition to unnecessary costs, the lack of a test kit meeting EPA's own standard for accuracy is also forcing companies to follow expensive procedures even when there may be no need to do so. The current test kits have a 30 percent false positive test rate—finding unsafe levels where they really do not exist.
In early 2011, NAHB and three other trade associations—the Hearth, Patio and Barbecue Association; the Window and Door Manufacturers Association; and the National Lumber and Building Material Dealers Association—filed suit against the EPA for its removal of the opt-out provision, noting that its omission leads to NAHB members losing business to either DIYers or contractors that aren’t following the rules. It will probably be sometime this summer before the court makes a decision.
Meanwhile, in addition to restoring the opt-out provision, Senator Inhofe's bill would suspend the RRP if the EPA cannot approve commercially available test kits that meet the regulation’s requirements and would restrict the EPA from expanding RRP activities to commercial and public buildings until a study is conducted to prove necessity. The legislation would also provide exceptions for renovations after a natural disaster and eliminate requirements for hands-on recertification training.
S1248 has been directed to the Senate Committee on Environment and Public Works, on which Inhofe presides as Ranking Minority Member. AAMA provided information to members of EPW to address questions regarding the need to reinstate the opt-out provision.
While we agree with the overall health-based objectives of RRP, inherent flaws and overreach in the RRP regulations are killing jobs and severely limiting the replacement of energy-inefficient windows. The rule unfairly penalizes homeowners, contractors and business owners involved in renovation and repair. We will continue to work to reach a practical and affordable alternative that achieves the worthwhile public health objectives without the unnecessary expenditure of time and money.