Attempt to Restore the Opt-Out Provision in Lead Paint Rules

June 2012Articles In the Zone

On June 7, 2012, Reps. John Sullivan (R-OK) and Tim Murphy (R-PA) introduced H.R. 5911 , the Lead Exposure Reduction Amendments Act of 2012. The Sullivan/Murphy bill would provide a much-needed legislative fix to EPA’s Lead Renovation, Repair and Painting Rule (LRRP).

Among the notable provisions, it forces EPA to restore the “Opt-Out Provision,” which would allow homeowners without small children or pregnant women residing in the home to decide whether to require LRRP, and it would lower compliance cost with the rule by $336 million. The legislation would also suspend the rule if EPA cannot approve one or more commercially available test kits that meet the regulation’s requirements. Oklahoma Senator Jim Inhofe previously introduced companion legislation in the U.S. Senate (S 2148). The bill is supported by a strong coalition of home builders, contractors and remodelers who are struggling to comply with the rule.

EPA's April 22, 2010, final Opt-Out Rule eliminated the "opt-out" provision in the final Renovation, Repair and Painting Rule (issued in 2008) that had exempted a renovation firm from the training and work practice requirements of the rule where the firm obtained a certification from the owner of a residence he or she occupies that no child under age six or pregnant women resides in the home and the home is not a child-occupied facility.

If successful enacted into law, the legislation would clearly alter the mandate to follow the LRRP for some homeowners. Remodelers and other contractors could provide some of their customers with the option to “opt-out.” However, the action of “opting-out” of the EPA rule does not automatically eliminate the health or legal risk posed by lead paint contamination. Contractors whose clients choose to avoid the compliance costs associated with following the LRRP should protect themselves by seeking waivers from the homeowner for potential civil liability associated with the “opt-out.”