National lead paint lawsuit draws local attention
Published: July 12, 2010
Tags: builder, clause, Degnan Design Builders, Environmental Protection Agency, lawsuit, lead paint, lead renovation, National Association of Home Builders, opt out, regulations, remodel, rules
By Scott Carlson
Special to The Daily Reporter
Wisconsin home remodelers and builders are watching closely a national lawsuit over federal lead paint regulations.
The outcome of the battle between the National Association of Home Builders and the Environmental Protection Agency could spur changes in Wisconsin’s lead paint rules.
The NAHB reported it is suing the EPA for removing an opt-out provision from lead paint rules for home renovations, repairs and painting. That rule, which expired July 6, applied to homes constructed before 1978 — the year lead paint was banned — and let contractors bypass extra preparation, cleanup and recordkeeping requirements in homes where there were no pregnant women or children younger than 6.
According to a press statement attributed to NAHB Chairman Bob Jones, removing the opt-out clause is unnecessary and more than doubles the number of homes affected by the federal regulation.
The Hearth, Patio & Barbeque Association, the National Lumber and Building Material Dealers Association, and the Window and Door Manufacturers Association have joined the NAHB in filing the petition for review in the U.S. Court of Appeals for the D.C. Circuit.
The EPA responded that letting the opt-out rule expire will better serve consumers and protect people of all ages from lead hazards.
In April, the EPA issued the Lead Renovation, Repair and Painting rule, which required the use of lead-safe work practices in pre-1978 homes, but the rule included the opt-out provision. That rule also had a July 6 sunset on the opt-out to make the overall lead paint rule consistent with statutory requirements, according to the agency.
In Wisconsin, the state Department of Health Services never adopted the federal EPA opt out as a part of lead paint regulations. Wisconsin officials knew the EPA planned to eliminate the opt-out, said Shelley Bruce, supervisor of the Wisconsin Department of Health and Family Services’ asbestos and lead certification section.
Bruce said there is no guarantee Wisconsin would follow suit if the NAHB wins its lawsuit to force the EPA to reinstate the opt-out rule. States can set more restrictive rules than the federal government.
“Nothing is ever off the table,” Bruce said. “But at this point, we would have no intention to opening our rules to do that.”
She said despite progress in combating lead paint poisoning, Wisconsin’s percentage of children who have lead poisoning is double the national average.
But Pat Stevens, general counsel of the 8,000-member Wisconsin Builders Association, is among home industry officials who contend the EPA should reinstate the opt-out and, if the NAHB prevails in it is litigation, Wisconsin officials should allow for an opt-out.
Building association officials claim there is no scientific evidence that implementing the opt-out rule is harmful to consumers and homeowners.
Abe Degnan, another Wisconsin Builders Association official, agreed. He contended that without an opt-out rule, home remodeling and renovation projects are more difficult and expensive.
Degnan estimated the EPA’s lead paint rules can add 5 to 10 percent to the cost of a home remodeling project, depending on its size. Degnan, also president of the Madison Area Builders Association, is president of Degnan Design Builders Inc., DeForest.
According to the NAHB, remodelers’ and other contractors’ estimates of the additional costs with the lead-safe work practices average about $2,400. For example, a complete window replacement requires the contractor install thick vinyl sheeting to surround the work area both inside the home and outdoors, with prep time and material costs adding an estimated $60 to $170 for each window, according to the national group.
Degnan said home remodelers will comply with whatever rules the EPA and Wisconsin have in place.
“But we want to make the rules practical,” he said.