The National Lumber & Building Material Dealers Association (NLBMDA) joined with three other trade groups today to file suit against the Environmental Protection Agency (EPA) over the removal of an opt-out provision in the EPA's much-derided new rule governing renovations in homes where there's a potential health hazard from lead paint.

The legal action in the U.S. Court of Appeals for the District of Columbia circuit challenges the EPA's legal authority to eliminate the opt-out provision from the Lead Renovation, Repair, and Painting (LRRP) rule "on the grounds that EPA substantially amended the LRRP rule without any new scientific data and before the regulation was even put into place on April 22." Aside from NLBMDA, the suit was filed by the National Association of Home Builders (NAHB), the Window and Door Manufacturers Association (WDMA), and the Hearth, Patio and Barbecue Association.

The rule, which was issued April 22, 2008, and took effect on the same date this year, requires contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 to be certified and follow specific work practices to prevent lead contamination. (See EPA fact sheet.) Ignoring the new rules can lead to fines of up to $37,500 per day.

The rule that took effect in April contains a provision that exempted a renovation firm from the training and work practice requirements if the homeowner provided a certificate declaring that no child under age 6 or pregnant women lived in the house. But on April 22, the EPA announced its final rule would close that exemption. That opt-out expired Tuesday, July 6, EPA said in a news release. "EPA has eliminated the so-called opt-out provision because improper renovations in older homes can create lead hazards resulting in harmful health effects for residents and visitors in these homes, regardless of age," the agency said then. "The result will better protect children and adult occupants during and after renovation, repair and painting projects."

Taking away that op-out option means 79 million homes now are subject to the rule even though the EPA estimates only 38 million homes contain lead-based paint, the trade groups noted. (The LRRP rule affects only homes built before 1978 because that was the year that the use of lead paint in homes was banned.)

"The removal of the opt-out provision, which was done without any substantial research or data to support such a move, will result in millions of homeowners paying for additional measures that they may not need and discourage them from making necessary improvements," NLBMDA Chair Dan Fesler, CEO of Lamperts Inc. in St. Paul, Minn., said in a statement. "Worse, it may encourage homeowners to seek out uncertified contractors and put certified LRRP contractors at a competitive disadvantage."

According to an NAHB statement, remodelers' and other contractors' estimates of the additional costs associated with the lead-safe work practices average about $2,400, but vary according to the size and type of job. "For example," it said, "a complete window replacement requires the contractor to 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."

"Even under the original rule, the opt-out provision was not available in homes where small children or pregnant women live," said NAHB Chairman Bob Jones, a home builder and developer in Bloomfield Hills, Mich. "That shows that this change provides no additional protection to the people who are most vulnerable to lead-based paint hazards."

As for the WDMA, "It's clear that EPA's removal of the opt-out provision will significantly impact the window, door and skylight retrofit market," said association chair Steve Sisson, vice president and general manager of Karona Inc. in Grand Rapids, Mich. "Millions of additional homeowners will be subject to substantial unnecessary costs as a result of the LRRP, which will only discourage them from making energy-efficient improvements or cause them to seek out uncertified contractors."

Bob Hanbury, a design/build remodeler who has been working with NAHB on the lead-paint issue and who owns House of Hanbury in Newington, Conn., said the substantial increase in homes that will need lead-safe practices spells trouble for the nation's renovation efforts. "There won't be enough trained individuals to satisfy the need," Hanbury told Remodeling, a sister publication to ProSales.

Many construction-related organizations, including NLBMDA, had sought to delay the rule on grounds that it had been inadequately publicized, there weren't enough contractors certified in lead-safe practices, and the rule would push up remodeling costs at a time when the Obama administration was promoting energy retrofits as a creator of jobs. EPA said July 6 that to date, the agency has certified 254 training providers who have conducted more than 16,000 courses and trained an estimated 320,000 renovators in lead-safe work practices.