Comment submitted by Mary Busey Harris,Executive Vice President, National Association of the Remodeling Industry (NARI)

RESPONSE TO THE EPA PROPOSED RULES ON LEAD Submitted by the National Association of the Remodeling Industry (NARI) May 22, 2006 About National Association of the Remodeling Industry (NARI) NARI is a non-profit trade association with national headquarters based in Des Plaines, IL (northwest Chicago) and with 58 Chapters in most major metro areas nationwide. NARI is comprised of almost 7,000 member companies ? remodeling contracting companies, local suppliers and national suppliers. NARI?s Core Purpose is to advance and promote the remodeling industry?s professionalism, product and vital public purpose. NARI members voluntarily subscribe to a strict Code of Ethics and Standards of Practice. NARI provides rigorous programs of study with hands-on training through its chapter structure. With passage of examinations demonstrating competence, certifications holding national recognition are awarded (e.g., Certified Remodeler, Certified Lead Carpenter, Certified Kitchen and Bath Remodeler, etc.). These programs are a NARI hallmark and exemplify NARI?s commitment to its Core Purpose. NARI?s Role in Lead-Safe Work Practice: Contractor Training NARI demonstrates a ten-year history of strong support for government initiatives on lead-safe work practices. Since lead came to the forefront as an environmental and health hazard, NARI has taken a proactive position training both remodeling contractors and informing consumers. Between 1996 and 1998, NARI worked with both EPA and HUD and conducted two-day training seminars throughout the country on Lead-Safe Remodeling. The outreach was broad and offered to all remodeling contractors, not just NARI members. NARI continues to work to ensure that its members employ lead-safe work practices. NARI certification programs and skill training are consistently updated to reflect most current lead- safe work practices. Consumer Education NARI strives to ensure that the public remains informed about the hazards of lead and about hiring contractors trained in lead-safe work practices. NARI provides a brochure entitled ?Protect Your Family From Lead in Your Home.? The brochure is available in both Spanish and English. NARI contractors are aware that they are to provide, as required by law, this brochure to homeowners prior to commencing a remodeling project in homes of pre-1978 construction. NARI?s Position -- Opposed NARI is in strong opposition to the EPA new proposed rules governing lead as announced on December 29, 2005. NARI requests EPA?s review and serious consideration of the following points: 1. The stated purpose of the EPA proposal is to reduce exposure to lead hazards created by renovation, repair, and painting activities that disturb lead with a stated goal of eliminating childhood lead poisoning. NARI members encourage lead safe practices, and they are very concerned about the incidence and effects of lead in young children. NARI members have significant legal and financial incentives to protect their clients and consumers. NARI is very concerned that the proposed rules will not decrease the potential for lead exposure and continues a policy of imposing action in a very limited set of circumstances. Moreover, because the proposed rules do NOT work in a cost-effective manner to achieve the stated goal of eliminating childhood lead poisoning, the proposed rules, rather than eliminate the potential for lead exposure in residential dwellings, may actually INCREASE the risk of lead exposure to children. . 2. The new requirements do little to achieve the goal of ?eliminating childhood lead poisoning by 2010.? There other real and potential sources of lead exposure which may be present outside of professional remodeling. The current rules and the proposed rules continue to take a rather passive purported ?educational? direction. Yet the clear facts are that only 24% of the housing stock is impacted at this time. The proposed rules do little to identify which homes are part of that stock and which homes, having potential lead dangers, have children present. Nonetheless the rules add significant costs to remodelers which will be passed along to consumers, whether their own homes are impacted or not. 3. The current rules and the proposed rules continue to require that homeowners be given a lead pamphlet at certain times, including at the time of their purchase or by a professional remodeler if their home is built prior to 1978. What the current system fails to do is to provide to consumers a basis to understand what the potential cost impacts are so that they can truly make an informed decision. Studies have demonstrated that homeowners are likely to engage in a remodeling project within two years of new home purchase. Lower- income families struggling to acquire a home or rental property may receive a disclosure at the time of their purchase that their home may or may not have lead paint, without an assessment of the cost of remediation. The current system, although stating that it encourages owners, buyers and renters to check for lead, does NOT require a check prior to exposing a child to the situation. Because the discovery of lead could impose a significant increase in costs for the seller or others, the economic incentive for sellers and landlords is to intentionally remain in the dark about the possible lead presence. In simple words, sellers, landlords and others hope to pass off the issues to an unsuspecting member of the public and the current rules encourage that economic reality. When the unsuspecting family undertakes the remodeling project, given the high cost of remediation, the most likely course of action will be to perform the work without professional remediation. The result will be a greater likelihood of childhood lead poisoning. 4. One potential solution is to require that at the time of sales transaction of a pre-1978 home that there be a mandatory test of the home for lead by a professional and that the impacted housing stock be identified. Homes that are tested lead free may then be certified and the information maintained in an EPA database. Purchasers who are buying lead impacted homes may then be given not only lead disclosure information but they may then know with assurance that their children may be at risk. As homes are discovered impacted, when they are remediated, they may be certified by a lead testing professional as ?clean.? This would be a more cost-effective method of identifying impacted stock and protecting children. 5. Many of these projects may not require the use of a professional remodeling contractor for assistance. The current rules and the proposed rules do not ensure that the homeowner, handyman or installer can and will observe lead- safe practice in a non-professional remodeling project. NARI strongly urges that if the EPA considers offering a further modification of a testing program by offering a tax credit for the cost of testing and identification of lead impacted homes to low- income families. 6. The proposed rules do not address the responsibilities of homeowners, homebuilders, and real estate professionals; the only responsibility and consequent significant liability rests with remodeling contractors. 7. The proposed rules are entirely focused on contractor behavior with the creation of more regulation added to existing regulations. Further restrictions on training, licensing and insurance will only raise the cost of remodeling. These costs cannot be absorbed in the cost of projects born by the contractor and will be passed on to homeowners. This, in turn, may well encourage homeowners to do the work themselves, without any appropriate safeguards. 8. Utilizing Exactimate (a bidding system widely used in the insurance industry), the original scope of work on a small job was assessed at $6,063; with consideration of lead-safe work practices, this same job was assessed at $7,080, which represents an increase of 15%. It is further estimated that employment of lead-safe work practices coupled with proper insurance coverage will increase contractor costs on overall average by 28%. Many competent ethical contractors will exclude this type of work or will raise prices across the board. Higher remodeling costs will mean that consumers, not aware of the real risks to health, will be more likely to use unlicensed and unethical contractors who may not use lead-safe practices or undertake the work on their own without lead-safe practices. These rules could have the unintended impact of raising the risk of exposure to children. 9. In a competitive environment, without strong education and enforcement, the 28% cost burden for compliant contracting procedures will encourage non-compliance and will foster unlicensed, unethical behavior among less reputable contractors whose appeal will be in lower cost and shorter deadlines as well as improper disposal. The financial impact will distort the market place and will encourage the avoidance of building permits and the inspection process that are designed to protect families and consumers. It also will encourage more lead remediation scams perpetrated on unsuspecting families. Professional remodeling contractors who consistently observe competent, diligent work practices and ethics will be subject to unfair competition and thus economically harmed. Thus, NARI urges the EPA to consider strong enforcement regulations, significant penalties for violations, including non-contractor parties such as homeowners, real estate professionals, installers and others. Again, the required testing for impacted homes and non-certified homes at time of sale will strongly encourage compliance and discourage unsafe behavior. 10. In today?s legal environment, there is significant risk to a remodeler that if unsafe lead levels are discovered in a home, claims will be asserted against the remodeler without regard to the true cause. These claims can arise many years after a remodeling project and determining responsibility may be nearly impossible. Moreover, because of the potential risk, many reputable remodelers will avoid projects in pre-1978 homes. The result, again, is a less-competitive environment in which professional remodeling costs rise and homeowners will be less likely to utilize professional remodelers utilizing lead-safe practices. Again, the incidence of lead exposure to children may actually increase. Without clear rules allowing for a clear process for compliant contractors to obtain an end to liability exposure, the uncertainty will result in growing insurance coverage crisis for remodelers and will have an unintended impact of leaving consumers at risk from uninsured or underinsured contractors. The EPA has the responsibility to address this point clearly to enable proper risk assessment by contractors and insurers. 11. The EPA acknowledges that current testing is not reliable in that existing test kits, in general, when used by a trained professional, can reliably determine that regulated lead-based paint is not present by virtue of a negative result but that are unable to clearly distinguish if a presence of lead rises to a regulated level. These proposals would coordinate with the improvement of EPA certified test kits and encourage the use of trained professionals in utilizing and interpreting the results from such kits. Recommendation NARI strongly recommends and encourages EPA to reconsider its current system and the proposed rules and to make several changes to the current regulations to achieve the 2010 goal: 1. The EPA should undertake an ongoing study in conjunction with industry representatives, including industry-related associations such as NARI to identify a set of ?best practices? for lead safe remodeling of the housing stock. 2. The EPA should undertake a certification program to identify the housing stock impacted by lead and to allow exclusion of housing stock not impacted or certified by lead testing professionals as clean. If mandatory testing is implemented at the time of sale or rental of a non-certified home or dwelling, the result will be (a) a certification (and thus a removal of concern as to that home and the confidence of protecting the safety of any children residing in that home), (b) a remediation followed by a certification or (c) a truly informed purchaser who understands that there will be costs to remediate and obtain a certification. Ultimately, these positive steps will assure the cleaning of the housing stock. 3. The EPA should further adopt a ?safe-harbor? rule which provides that contractors working on a pre-1978 home which has been tested by a certified lead test professional and has been certified as clean would be excluded from liability. This liability exclusion would be available for contractors when (a) a pre-1978 home is certified as clean in the EPA database, (b) a pre-1978 home that is not already certified but is tested by a professional and the results are submitted to the EPA for certification as clean or (c) a pre-1978 home is discovered to have unsafe lead levels and after lead-safe remediation, is tested by a professional and the results are submitted to the EPA for certification as clean. 4. The contemplated certification program will encompass homeowners and others who undertake remodeling projects on their own. If they follow lead- safe remediation practices, then they will be able to obtain a post-remediation test for certification. IF they fail to utilize lead safe practices, when they attempt to sell or rent the home, the mandatory testing requirement will expose the failure and PROTECT the unsuspecting purchaser or renter. Conclusion NARI members remain significantly concerned about protecting children and others from lead exposure. NARI and its chapters remain committed to working with EPA and other private or government entities in implementing cost-effective construction practices and solutions which are calculated to lower the incidence of lead exposure and danger for families and young children. NARI remains concerned that the proposed rules will not accomplish the stated goals and believes that the NARI suggested recommendations will have a more positive and cost-effective impact to accomplish the goals. NARI urges the EPA to consider these recommendations. NARI is willing to work with the EPA to more fully develop proposed rules which will implement these recommendations. For More Information Mary Busey Harris, Executive Vice President, NARI mharris@nari.org or 847 298 9200