April 22, 2010

EPA's Rule on Lead Paint a Cause for Celebration, but Challenges Remain

Guest blogger Patrick MacRoy is Director of Community-Based Initiatives and RRP Training Program Manager for the National Center for Healthy Housing. He launched the first “train-the-trainer” program to help increase the supply of accredited RRP training providers and has been working on related policy issues.

Today marks a major milestone in the century-long battle against childhood lead poisoning in the United States: the EPA will be officially implementing the Renovation, Repair, and Painting rule. Known as the RRP rule, the regulation is designed to prevent the contamination of nearly four million homes a year with toxic lead dust created from the disturbance of old lead-based paint during rehab or maintenance work in older homes. Mandated by Congress nearly two decades ago, the rule has long been a source of controversy and will continue to require attention from advocates to ensure it reaches its full potential.

As part of the Residential Lead Based Paint Hazard Reduction Act of 1992, Congress mandated EPA to study the lead hazards created by renovation activities to determine appropriate regulations. EPA studied the issue exhaustively, missing the congressional deadline of October 1996 to promulgate regulations in the process. EPA’s studies, however, clearly demonstrated that renovation activity results in high levels of lead dust, and EPA continued to promise health and housing advocates that regulations were in the works. Despite the public assurances, the Bush administration EPA was quietly working to undermine the rule. In March 2005, Public Employees for Environmental Responsibility released internal EPA documents showing the agency had abandoned the regulations the previous year, deciding instead to push for a “voluntary” approach of encouraging awareness and training for contractors.

Recognizing the futility of a “voluntary” program to reach the large and competitive home renovation market (which, by all accounts was almost completely non-compliant with mandatory OSHA regulations already in place requiring protection of workers from lead exposure), advocates called for action to force EPA to issue a rule. While PEER and others eventually filed a lawsuit to try to force EPA’s hand, what may have had the greatest impact was the political response. Illinois’s Junior Senator, Barack Obama, pressured EPA to commit to issuing the long awaited renovation rules by threatening to put a hold on the confirmation of EPA Deputy Director Marcus Peacock in July 2005 until he was promised the rule would be written by the end of the year. When EPA again dragged its feet Senator Obama called EPA to task that November, placing a hold on the confirmation of an assistant administrator and threatening to hold all future confirmations to the agency unless the renovation rule was issued by the end of the year. The pressure worked, and EPA issued a proposed rule on December 29, 2005. After two more years of debate, including a delay to allow an industry group to conduct its own study of lead hazards (the result: renovation creates leaded dust), EPA published a final rule on April 22, 2008 to go into effect two years later.

While a significant step forward, the rule has several glaring shortcomings. Scientific studies, as well as decades of experience in the lead abatement industry, have shown that the only sure way to ensure a home is free of invisible lead dust is to collect a dust sample and send it to a lab for a quantitative measurement of lead. Bowing to industry concerns over the cost, EPA jettisoned this proven and validated “clearance” test in favor of a newly imagined and poorly studied “cleaning verification” test, which requires the contractor to wipe the work area with a wet wipe and compare it to an EPA provided reference card (the appearance of which lead many of us to refer to it as the “dirty diaper test”). Additionally, EPA changed the congressionally mandated scope of the rule, giving an exclusion to owner-occupied homes with no children under the age of 6, and failing to regulate public and commercial buildings altogether. A coalition of public interest petitioners sued the EPA over these and other shortcomings to the rule, winning a settlement agreement in August 2009 forcing EPA to propose number of changes to the rule over the next six or more years (I served as a technical advisor to the petitioners). The first set of resulting revisions are due to be announced by the end of today, with EPA anticipated to remove the owner-occupied exemption and require contractors to share with home owners and occupants additional information on the protections taken during the construction.

Despite then-Senator Obama’s enthusiasm for the rule, President Obama’s administration has devoted few new resources to support the implementation of the rule. In the face of a need to certify and oversee at least a quarter million firms and individual renovators, ensure the rule is complied at 4 million job sites nationally, and support state enforcement efforts, the President’s FY10 budget provided a mere extra $1 million. In reviewing its enforcement priorities list for the next three years, EPA soundly rejected adding RRP, claiming it did not meet criteria for inclusion despite its large scale impact on children’s health. And a long awaited public outreach campaign around lead jointly sponsored by the EPA and announced Tuesday barely mentions the RRP requirements.

To ensure a successful implementation of the rule, health, environment, and housing advocates are going to continue to have to push EPA for tougher standards and better enforcement. As a result of the 2009 settlement, EPA will also today be proposing requirements to require clearance testing following some jobs under the RRP rule. Retaining strong requirements in the final revision will not be easy. EPA will continue to face opposition from industry groups and will likely face an OMB hostile to arguments that clearance testing will provide monetizable benefits. While EPA has made substantial progress in getting contractors through the certification process in the last few months (with an estimated 150,000 trained to date), many questions remain about enforcement. Without a vigorous presence to ensure compliance with the rules, it’s likely that many will ignore the lead safe work practices required, especially if shaving off the compliance costs prevents contractors from being undercut by other non-compliant contractors. Getting to the smallest contractors, especially those working in our highest-risk low-income neighborhoods, is going to remain a challenge. While the best solution may ultimately involve state and local-level enforcement supported by increased Federal assistance, in the meantime, EPA will need to develop local partnerships and work with code inspection and permitting offices already working with contractors.

If the regulation's omissions are indeed corrected and EPA steps up with serious enforcement, the RRP rule will truly move us toward the goal of eliminating childhood lead poisoning in the next decade.

Patrick MacRoy, Director of Community-Based Initiatives, National Center for Healthy Housing.