The National Lumber and Building Material Dealers Association (NLBMDA) urged the Environmental Protection Agency (EPA) to halt plans to add extra testing requirements to its new Lead Renovation, Repair, and Painting (RRP) rule until the agency makes a better assessment of the rule's current impact and effectiveness.
The comments keep up NLBMDA's drumbeat against the RRP rule, which it--along with many other building-related groups--maintains have dramatically affected the home renovation and retrofit market. "Likewise, we are further troubled by EPA's new proposal to mandate additional dust wipe and clearance testing requirements, which the agency has not justified through any data and could potentially impose even more liability on renovators," the association said in its comments.
In a separate statement, NLBMDA Regulatory Counsel Frank Moore argued that "EPA has also failed to consider in their economic analysis the impact on the building material industry by not taking into account dealers who offer installed sales of products, such as windows, doors and insulation, which comprises over 70% of our members."
The rule, which was issued April 22, 2008, and took effect on the same date this year, is intended to protect children and pregnant women from lead-based paint, exposure to which can lead to learning disabilities, behavior issues and reduced intelligence. It 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.
On May 6, the EPA unveiled a proposed rule that would require dust-wipe testing after many renovations covered by the rule, and in some cases also require the renovating firm to demonstrate that any lead dust remaining in the work area is below legal maximums.
While NLBMDA stressed that it supports EPA's concern for protecting children and pregnant women from lead hazards, and said it supports "efficient and effective means to ensure that proper protective measures are taken when the homes that they occupy are renovated or repaired," it added that there was much about the current RRP that it dislikes. Those objections start with the removal earlier this year of an opt-out provision freeing contractors from the need to follow the rule if the homeowners where the work is occurring declare there are no children or pregnant women in the house.
"[W]e believe that EPA must assess the status and impact of the implementation of the current requirements before it can reasonably determine what additional amendments to the program, if any, are warranted," NLBMDA told the agency. "We believe that it is critical for EPA to perform such an assessment in order for it to gain a sound understanding of the true costs of the current and proposed rule in relation to benefits.
"EPA should also consider such unintended impacts such as significantly discouraging the renovation of any home constructed before 1978, undermining other existing federal, state and voluntary programs that are attempting to encourage homeowners to perform energy efficient renovations in the interest of energy conservation and reduction of the production of green house gases," the association added. "For these general reasons, NLBMDA believes that EPA should not make additional amendments to the rule until it more adequately assesses the current impact and effectiveness of the rule."
NLBMDA gave eight reasons for its recommendation:
- EPA lacks authority under the Toxic Substances Control Act to issue regulations requiring any form of clearance testing.
- EPA failed to demonstrate that RRP activities cause the type of hazard that requires regulation under federal law.
- Imposing dust wipe testing and clearance testing requirements runs counter to Congressional intent because it eliminates the distinction between abatement contractors and renovators.
- With its new requirement, the EPA in effect changed its mind "without citing any new data or circumstances to justify its new direction."
- The proposed requirements' costs will outweigh their benefits.
- EPA's underlying economic analysis supporting the proposed rule failed to include the impact on the building material industry.
- The rule actually will undermine EPA goals of protecting people because it will raise costs to a point that most homeowners won't absorb, thus leading them to postpone needed work, try to fix problems themselves, or hire underground and/or unregulated contractors.
- EPA's refusal to convene a new Small Business Advocacy Review Panel violated the Regulator Flexibility Act.
"NLBMDA will continue to work to bring about more reasonable regulations," the association said.