Homebuilders sue EPA over lead paint rule

Homebuilders are suing the Obama administration for nixing the industry’s ability to sidestep rules requiring the safe handling of lead paint during the renovation of older homes.
 


The challenge is turning into a larger legal battle over the reach of the Environmental Protection Agency in regulating lead paint, with smaller construction groups intervening on behalf of the National Association of Home Builders (NAHB) and environmental and public health advocates siding with the agency.



NAHB filed a lawsuit against the EPA on Thursday regarding the new rule, which went into effect Tuesday. It requires contractors working in homes built before lead paint was banned in 1978 to adhere to lead-safe work practices. This includes dust control, site clean-up and containing work areas.
 


The administration, in effect, removed an opt-out provision from a 2008 Bush-era EPA lead paint rule that allowed a contractor to avoid these practices if there were no children under the age of six in the home.
 
The average costs for adhering to the lead-safe requirements is about $2,400, according to NAHB.

The central legal argument they make is EPA has presented no scientific evidence to justify the changes to the 2008 rule.
 
NAHB also sued EPA over that 2008 rule, arguing that it was overreaching.
 
“We do not oppose the intent or purpose of this regulation,” to protect young children and pregnant women, said Amy Chai, a senior counsel at NAHB. “Our concern is when EPA has exceeded its authority.”
 


Jane Malone, policy director for the National Center for Healthy Housing, calls the EPA changes long overdue. “This is another effort by building industry to resist the lead safety requirements,” said Malone, who served as a technical adviser to Sierra Club in that group’s legal challenge to the 2008 rule. “They just keep pounding away trying in different ways to undermine” EPA’s ability to regulate lead paint, she said.



“I think it’s shortsighted,” said Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning, of the NAHB challenge. “It’s almost like they’re trying to put their heads in the sand on issues that they really ought to be leading on.”

"To say that we have our heads in the sand when this affects every member of our industry is just totally untrue," countered NAHB spokeswoman Calli Barker Schmidt, noting the organization meets with EPA every six weeks on the issue. "We're not trying to undermine them, we're trying to help them."


Norton said her group is likely to intervene and side with EPA in the lawsuit.



“It’s baseless to argue there’s no scientific foundation to remove the opt out,” said Wes Stewart, an attorney with Norton’s group. He said the removal of the opt out protects children who visit the properties and neighboring properties.



Stewart cites Centers for Disease Control and Prevention data indicating there are 250,000 children under the age of 6 in the country that have elevated blood levels. A CDC spokeswoman said the number of children who had elevated lead levels in their blood between 2005 and 2006 -- the latest figures available -- actually dropped to 120,000. 

EPA — in publishing its latest lead rule in May this year — cited, among other studies, a March 2009 article in the journal of the American Academy of Pediatrics citing blood levels in young children through 2004. 



The Hearth, Patio & Barbecue Association, the National Lumber and Building Material Dealers Association, and the Window and Door Manufacturers Association joined NAHB in the filing to the U.S. Court of Appeals for the District of Columbia Circuit.



The removal of the opt-out language was part of a settlement EPA made with Sierra Club and others. Chai said NAHB was not part of those settlement talks. 



After NAHB, Sierra Club and others sued EPA over the 2008 rule for different reasons, settlement negotiations with all groups began in fall of that year. But the discussions took a turn in 2009 after President Barack Obama took office, Chai noted. EPA then agreed to propose three new rulemakings, including two that amended the 2008 rule. The removal of the opt-out provision is the first of the two amendments to that rule to be finalized.
 


EPA has given additional time for contractors to receive training and become certified to comply with the new lead rule and the agency will not go after violators until October at the earliest. But when they do, it would amount to fines of up to $37,500 a day.



Lead exposure is particularly harmful to young children, potentially causing brain and nervous system damage, stunted growth and impaired hearing. But it can also raise blood pressure, cause nerve disorders, reproductive problems, affect memory and concentration and cause muscle and joint pain in adults as well, according to EPA.


An EPA spokesman said in an email that the opt-out provision was removed "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 result will better protect children and adult occupants during and after renovation, repair and painting projects."