The National Association of Home Builders (NAHB) has applauded a key change to the Renovation, Repair, and Painting (RRP) rule that the U.S. Environmental Protection Agency (EPA) announced earlier this month (Construction Advisor Today, July 21, 2011, "EPA's New Renovation, Repair & Painting Rule Draws Mixed Reviews").
NAHB commended EPA for rejecting a proposal to add third-party clearance testing to the RRP rule. “We’re pleased that the EPA listened to the concerns of remodelers about the extreme costs the proposed clearance testing would have imposed,” NAHB Remodelers Chairperson Bob Peterson said. “Homeowners are saved from spending a great deal of money on lead testing. If remodeling is more affordable, homeowners will be able to hire an EPA-certified renovator to keep them safe from lead dust hazards during renovation.”
At NAHB’s request, this regulation was selected for review by EPA under the presidential Executive Order for Regulatory Review concerning the impact of federal rules on small businesses and job creation.
Under the lead paint rule, contractors have been required to wipe down the project area after completing remodeling or renovation work and match the result to an EPA-approved card to determine whether lead paint dust is still present, a process that EPA believes is effective at reducing dust lead levels below the dust-lead hazard standard.
The proposal would have required contractors to hire EPA-accredited dust samplers to collect several samples after a renovation and send them to an EPA-accredited lab for lead testing. Because of the cost of this as well as the waiting period for test results and the limited number of accredited labs nationwide, professional remodelers were very concerned about home owners’ willingness to undergo the process, according to NAHB.
However, NAHB argued that “several problems” with the rule still remain. “The EPA has yet to recognize an efficient, low-cost lead test kit that meets the requirements of the regulation. And last year, the agency removed a key consumer choice measure -- the opt-out provision -- which allowed homeowners with no children or pregnant women in residence to waive the rule’s requirement.
In April 2008, EPA issued a rule requiring the use of lead-safe work practices for renovation, repair, and painting projects that disturb paint in homes, child care facilities, and schools built before 1978. The rule is aimed at preventing lead poisoning in children as a result of messy renovation and painting work. In April 2010, the rule became effective. As a result, firms performing renovation, repair, and painting projects in pre-1978 homes and facilities must now be certified in lead-safe work practices; individual renovators must be trained by an EPA-accredited training provider; and the firms and renovators must follow specific work practices to prevent lead contamination. EPA estimates that the costs to contractors to follow the work practices will range from $8 to $167 per job.
To become a certified renovator, individuals are required to complete eight hours of training successfully, of which at least two hours must be hands-on training. This training is good for five years. The cost of this training, typically $175-300, is set by individual training providers. In addition, renovation firms must be certified by EPA or by a state authorized by EPA to administer its own program. Firm certification involves filling out a two-page application and paying a $300 fee.
NAHB Representative Provides GBI Additional Details
Kelly Mack, communications manager for NAHB Remodelers, provided Green Building Insider the following additional observations in an email interview:
GBI: NAHB stated that the costs associated with the proposed clearance-testing rule would be “extreme.” What estimates, if any, can you provide about how much money the proposal would cost the industry?
Mack: The overall costs to the economy give a bigger impact than the $160-260 per task that EPA estimated. According to EPA’s economic analysis, the cost of third-party sampling would be $451 million in the first year and that the cost of their proposal would be $393 million in the first year. These numbers are grossly underestimated because the April 2010 economic analysis took into account that an improved test kit would annually eliminate approximately half of the remodeling projects subject to the rule. That test kit has not materialized, so remodelers will still be applying lead-safe work practices to properties unnecessarily. Once again, consumers would [be] paying for services that were not required.
Going back to the per-task example, $160-260 per task adds up, especially on a job like replacing the windows in a home. If you replace eight windows to improve energy efficiency in several different rooms, this could top $2,000 just for testing, in addition to the estimates we have seen for compliance at about $130 per window. (Eight windows replaced equals 8 X $160-260 per task or $1,280-2,080 additional for clearance.) If you look at it from the consumer side, this extra cost will likely mean they cut back on the number of windows replaced or decrease the scope of the home remodel to afford clearance testing. Increased costs to the consumers could translate into reduction or avoidance of remodeling work, including much-needed energy-efficiency upgrades in older homes.
GBI: Is the clearance-testing proposal truly dead, or is there a way that it could still find its way into the rule? How concerned is NAHB that this proposal could eventually be adopted by a new EPA action, new congressional legislation, court action, or some other vehicle?
Mack: EPA has stated in its pre-publication of the final rule that it ‘has decided not to promulgate dust wipe testing and clearance requirements as proposed.’ This was signed by [EPA] Administrator [Lisa] Jackson and will be published in the Federal Register soon. Can EPA open a new rulemaking process if it gets new information or scientific evidence, certainly, but according to the preamble for the final rule, ‘upon the information before it, the agency does not believe that a dust testing requirement alone is warranted.’ Yes, special interest groups could petition the court for review like the Sierra Club did in 2008, but that is speculative, as is any change to the Toxic Substances Control Act.
GBI: What is NAHB’s reaction to the following recommendations that NCHH made in response to EPA’s recent announcement:
“Homeowners contracting for painting or renovation work should ask contractors to show proof of their lead-safe status. This includes both a renovator and a firm certification.”
Mack: NAHB agrees consumers should be choosing professional remodelers who hold EPA lead-safe certification; we make homes safer.
“EPA should increase consumer outreach to educate homeowners and increase enforcement to crack down on contractors that are not adhering to the law.”
Mack: EPA’s consumer outreach has not been effective. The American Coating Association as well as the International Dairy Foods Association, Association of Food, Beverage and Consumer Products Companies, and the Painting and Decorating Contractors Association all objected to the agency’s collaboration with the Ad Council as misleading. EPA has relied heavily on the regulated community to educate homeowners about the rule. We have yet to see any consumer outreach from NCHH. From May 2008 through January 2010, NAHB met with a coalition -- which included industry, EPA, and NCHH –- [but] not once did NCHH produce any efforts it was making to inform the public.
Another problem with EPA’s efforts to inform consumers is that all of the materials target homes with young children even though the rule applies to all owners of pre-1978 homes. EPA has failed to create messages that explain why older homeowners or those without children in residence should pay the additional costs of following the lead rule and hire a certified renovator.
NAHB believes that EPA should be focusing its enforcement efforts on uncertified contractors who are disregarding the rule altogether in an effort to level the playing field. Our members have reported being underbid by unscrupulous contractors that have not bothered with training, certification or following lead-safe work practices. Some folks have made complaints to EPA’s hotline with less-than-stellar results.
Here is an example of a response a certified remodeler received when reporting on observing violations of the lead rule on a home remodel: ‘Thank you for taking the time to report this, but unfortunately there is not sufficient information for us to take action on this complaint. We need the name and address of the contractor in order to pursue enforcement.” -- Elizabeth Wilde, Regional Lead Coordinator, Air, Pesticides & Toxics Management Division, EPA Region 4.
“Homeowners and rental property owners should require clearance testing at the end of any renovation project that stirs up dust in a pre-1978 home.”
Mack: If the consumer wants to pay the extra costs and is willing to deal with the extra delay in getting post-work clearance testing results on the job, NAHB will always support that ‘choice’ by consumers, just like NAHB supported EPA’s original LRRP rule, which allowed homeowners without children or pregnant women in the home similar consumer choice under the ‘opt-out’ provision of the original LRRP rule because EPA has recognized the LRRP offers those homeowners little (if any) documented health benefits as compared to costs. However, NAHB believes that the vast majority of homeowners are not willing to pay additional costs for clearance testing, especially because (as observed by remodeler members) many are unwilling to pay an additional $200 per room for any form of lead-safe work practices. Therefore, NAHB has always believed the success or failure of the LRRP rule’s implementation depends entirely upon consumer awareness and demand for these additional measures during remodeling activity.
GBI: NAHB asserts that ‘EPA has yet to recognize an efficient, low-cost lead test kit that meets the requirements of the regulation.’ How inefficient and expensive is the best-available kit? How efficient and low-cost does the kit need to be?
Mack: In 2008, EPA was so confident that an improved test kit could be developed that it based its economic analysis on its availability, saying that this improved test kit would reduce the number of renovations subject to the RRP in half. The agency’s confidence also extended to the rule itself, stating that after Sept. 1, 2010, it would only recognize test kits that met both the positive and negative response criteria, not just the negative response criteria (see 40 CFR §745.88). The current EPA-recognized test kits give a false positive for lead-based paint 30-60 percent of the time. One test kit can only be used on wood surfaces while another can be used on wood, plaster, and drywall. The test costs $20-30 per package.