EPA Must Re-examine Lead Definition and Clearance Testing Standards, Court Says

Filed in Codes and Standards, Remodeling by on January 15, 2018 10 Comments

shutterA recent court decision that requires the Environmental Protection Agency (EPA) to take another look at its dust-lead hazard standard may result in tighter regulations for contractors who do lead-abatement work if it leads to a stricter standard for clearance testing.

Down the road, it could also increase the number of homes subject to the Lead: Renovation, Repair and Painting Rule (RRP) that remodelers and other home contractors must pay attention to.

In 2009, advocacy groups filed a petition calling on EPA to revise its dust-lead hazard standards and definition of lead-based paint. EPA granted the petition and convened a review panel and coordinated a survey with HUD to see whether lower lead clearance levels were feasible. But in 2016, after the agency failed to act further, the groups filed a lawsuit at the 9th Circuit, asking the court to order EPA to conduct these two rulemakings.

On Dec. 27, 2017, in A Community Voice, et al. v. EPA, the 9th Circuit found that EPA must abide by its statutory duty and gave the agency 90 days to issue a proposed rule concerning the dust-lead hazard standard and definition of lead-based paint.

EPA may ask for more time, ask the full 9th Circuit to review it or ask the U.S. Supreme Court to take the case – so the outlook is still murky.

The Outlook for Remodeling

EPA has estimated that 76% of homes built between 1960 and 1978 do not contain currently regulated levels of lead-based paint. As a practical matter, the RRP rule is already applied to many homes where lead paint is not present in sufficient quantity to be regulated, because commercially available test kits cannot be accurately calibrated to the current definition of lead-based paint.

If EPA tightens the standard, and HUD joins EPA in changing the definition of lead-based paint, many of these homes will officially be regulated by the RRP Rule. Lead test kits may then meet the RRP specifications for the false positive/negative ratings for test kits.

NAHB will continue to engage with EPA to ensure the agency understands the impacts that changes to the lead-based paint definition and clearance standards could have on the RRP rule.

For additional information about the lawsuit, please contact Amy Chai. For more information about EPA’s lead-based paint regulations, please contact Tamra Spielvogel.

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Comments (10)

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  1. Mike says:

    Sooo, we don’t have a testing system that can accurately detect current regulated levels so lets lower the levels to the available inadequate testing systems??

  2. M.B. Daisycutter says:

    Im so glad I retired and don’t have to put up with this BS anymore. The Feds have taken all the fun out of our work. They’re a bunch of bureaucrats who never worked an honest day in their lives, deciding what is good for us and the “environment.” Remember the prayer I say everyday: “Dear God, please protect me from the people who want to protect me from myself.” They will be the ruination of this once glorious country.

    • william house says:

      Not so sure I agree with your position M.B. Daisycutter. To be sure the regulations present a bit of a an obstacle but with them we are slowly killing ourselves as well as other living things. Even our kids are affected by toxins and other hazards. Eliminating regulations is no way to proceed. However, we could focus new regulations to cover the manufacture of any new materials so as to eliminate the dangers presented by using products that were not investigated as to their efficacy. Unfortunately, as we learn more about the dangers of the products currently in place, and install new regs. to deal with the future safety issues, not to mention the potential lawsuits associated with the mitigation of damages, the more expensive it will become to do any renovations to existing buildings.

      • Stacey Dean says:

        William I’m curious if you have ever gone through the RRP training? Have you ever worked with the test kits? Or have you ever completed the final wipe tests to see if any lead dust is remaining? If you had, you might consider changing your views. It’s the darn test kits are terrible and give false positives and false negatives. The silly nature of actually wiping a surface and viewing how dark the wipe is as a measure of lead dust removal is just plain goofy. I mean how can we see if lead dust is present or not by the color of a wipe if lead dust isn’t visible to the naked eye? The entire regulations are written very poorly and the way we are required to undertake testing, removal and cleaning is ridiculous. Please let us know what type of work you have completed in this arena.

      • JD says:

        I agree 100% with M. B. Daisycutter. Way too much governmental red tape-in Taxifornia homeowners can’t even have us start a job immediately (unless under $750.00) with signing a waiver and they must specify the emergency that warrants waiving their 3 day wait. My suggestion is always for the homeowner to write “it’s MY house and MY decision, not the state’s. I will decide when the work begins.” I’m in the process of moving to a more friendly state-no contractor license required. No more $150.00 per year license fee (plus bond and ins). 9th circuit is a joke staffed by clowns

  3. Stacey Dean says:

    The 9th circuit court is the worst place to have an environmental regulation reviewed. An incredibly high percentage of their rulings are over turned in the Supreme Court. Which means all of this is a huge waste of time and won’t settle anything until it’s appealed to the Supreme Court. The 9th circuit court finds almost always in favor of crazy environmental groups, no matter how ridiculous the the case is. In this case, I’m sure the environmental group will have some new higher requirements put in lace that will have a ruling that will be difficult to read and understand. The environmental group will not want to appeal to the Supreme Court because they know it will be thrown out. Which means that some other group like NAHB will have to appeal the decision, which could be years of dragging through the system. In the meantime us contractors will be left in the proverbial dust trying to figure out what to do.

    • william house says:

      I think what you end up doing then Mr. Dean is to carry on the way you have until a new regulation directs that you do something different.

      • Stacey Dean says:

        Why do you assume I am a Mr.? Just curious, not offended, but wondering. I’ve worked in male-dominated construction for over 20 years and allied male-dominated industries prior. I’m continually expected to be a male. I know my name is male or female. It’s too bad there aren’t more women in this industry.

        Going back to your point about the regulations changing. The 9th circuit court opinions scare the heck out of me. They can really come up with some crazy stuff. They have the ability to require the EPA to change their regulations and that in itself is what has me upset. Especially since it will only cost me money, and do very little to protect the public from lead paint dust.

  4. Dave Tenn says:

    RRP rule is a lousy law that is poorly written. All contractors should do their best to clean work sites.
    However, there is no protection for contractors that do everything right. A child could have lead exposure before the project starts or they could spend time at a much more contaminated site. The contractor will certainly be blamed and sued. As well as the do it your self homeowner who could have poisoned his child on a previous project. There is no way you will get people to test their kids before project, not to mention you will scare them out of the project.
    Lastly, lead is in the soil so anyone with a garden could be poisoning their family.
    It puts a bull eye on the back of contractors!!

  5. Kevin Frasco says:

    M.B. Daisycutter is so right. I CAN’T WAIT
    While rules to protect the public and workers are necessary. Not all play by those rules. And frankly the Gov. makes rules they can not enforce. The conscious contractor who follows the rules that are put in front of him now becomes the the guy who can’t win a bid. The not so great state I live in (NJ) and the Fed Gov. just keep reaching into the little business owners pockets. And take and take. Making an honest decent living has been a job in itself. Now lets discuss INSURANCE !!!

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