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Get the LEAD out! New EPA Lead Law April 22,2010

April 13, 2010 – 10:48 am

Back in April 2008, under the Bush administration, a Lead Paint law was passed that is set to take effect April 22, 2010.  This law may greatly impact homeowners, landlords and any contractors working on homes built prior to 1978. It’s gotten a great deal of negative press lately so I thought it prudent to give you the facts directly from the EPA’s website. 

Here’s a brief overview in my own words:

To amend the original Lead Based Paint law of 1978, the EPA has added new guidelines for the safe removal of lead particles in homes built prior to 1978.  Lead is a natural material found throughout the world.  It was most commonly used in commercial manufacturing of paint up until the 1950’s when latex paint hit the market. It was also used in residential plumbing, windows, doors, as well as heating and cooling components.  Phased out in the 1950’s and 1960’s it was eventually prohibited by law in 1978 due to repeated research findings indicating that even minute quantities of lead were extremely hazardous to the human neurological system, particularly in children under the age of six.

Since children are most easily exposed to lead through paint dust or fumes from the burning of wood that contains lead-based paints, the EPA issued specific guidelines in 1978 to prohibit lead from being used in commercial paints. The intent of the new 2010 law is to further prevent exposure by specifying environmentally safe procedures for the handling and disposal of lead in and around older homes that may still contain lead from years ago.

In a nutshell, if you own or intend to purchase a home built prior to 1978 and you do any renovations that affect 20 square feet of exterior space or 6 square feet of interior space, the new law may apply to you. 

If you wish to read the entire 79 page law, click here.  Otherwise, here are my highlights taken directly from the EPA website:

Intent of the Law

Therefore, in taking into account safety, this final rule regulates renovation and remodeling activities relative to the TSCA section 403 hazard standard, with the purpose of minimizing exposure to such hazards created during renovation and remodeling activities….Additionally, EPA has interpreted practicality in implementation to be an element of the statutory directive to take into account effectiveness and reliability. In particular, EPA believes that given the highly variable nature of the regulated community, the work practices required by this rule should be simple to understand and easy to use.

WHAT:  Beginning on April 22, 2010, federal law will require that contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 must be certified and follow specific work practices to prevent lead contamination.

Target Housing: Target housing’’ is defined in section 401 of TSCA as any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-dwelling housing.  (According to the National Association of Realtors interpretation, 0-dwelling homes = barracks, dorms, studios and efficiency apartments.)

Renovation: 40 CFR 745.83, defines a ‘‘renovation’’ as the modification of any existing structure, or portion of a structure, that results in the disturbance of painted surfaces.

Examples of Renovation Projects included in the law:

• Paint removal by abrasive sanding.
• Removal of large structures, including demolition of interior plaster walls.
  • Window replacement.
  • Carpet removal.
  • HVAC repair or replacement, including duct work.
  • Repairs resulting in isolated small surface disruptions, including drilling and sawing into wood and plaster.

(According to the NAR, power-washing of older homes may also be considered disruptive to lead paint although it is not specified in the law itself.)

WHO:  NAR interprets this law to potentially affect the following: contractors or anyone “compensated to do work on” homes built prior to 1978. This also includes Property Managers/Landlords who do their own work.  Compensation could also be interpreted as anyone who reduces rents for tenants who do their own work.

 The law states that the potentially affect may include but is not limited to:

• Building construction (NAICS code 236), e.g., single family housing construction, multi-family housing construction, residential remodelers.
• Specialty trade contractors (NAICS code 238), e.g., plumbing, heating, and air-conditioning contractors, painting and wall covering contractors, electrical contractors, finish carpentry contractors, drywall and insulation contractors, siding contractors, tile and terrazzo contractors, glass and glazing contractors.
• Real estate (NAICS code 531), e.g., lessors of residential buildings and dwellings, residential property managers.
• Child day care services (NAICS code 624410).
• Elementary and secondary schools (NAICS code 611110), e.g., elementary schools with kindergarten classrooms.
• Other technical and trade schools (NAICS code 611519), e.g., training providers.
• Engineering services (NAICS code 541330) and building inspection services

Exemptions:  NAR states that the following are exempt from the new law:

• 0-dwelling homes – studios, dorms, barracks, efficiency apartments
• Homes that have a cleared inspection report dated April 2010 or later  
• Do-it-yourselfers – on your own homes only, not tenant occupied properties
• Painting over – Provide that no previous paint is disturbed by sanding, scraping or power-washing

 The law states that the following exemptions are allowed:

 …this regulation contains an exception for renovations in owner-occupied target housing where no child under age 6 or pregnant woman resides, so long as the housing does not meet the definition of ‘‘child-occupied facility.’’ To claim this exception, the renovation firm must obtain, before beginning the renovation, a signed statement from the owner of the housing that states that the person signing is the owner of the housing to be renovated, that he or she resides there, that no child under age 6 or pregnant woman resides there, that the housing is not a child-occupied facility, and that the owner understands that the renovation firm will not be required to use the work practices contained in this rule.

Certified Professionals: A certified professional is any contractor that has been trained under the new guidelines and has documentation of certification.  To become a certified renovator, a person must successfully complete a renovator course accredited by EPA or by a State, Territorial, or Tribal program authorized by EPA.

 Does everyone need to be certified?: No, simply trained by a certified renovator.

 Other renovation worker training. This final rule does not require everyone involved in performing a regulated renovation project to receive training from an accredited training provider. To allow flexibility for firms undertaking these projects, the rule allows firms to use other workers to perform renovation activities as long as they receive on-the-job training (OJT) in work practices from a certified renovator. This training must include instruction in the specific work practices that these workers will be responsible for performing.

 HOW:  There are pages and pages of procedures for each particular situation but the overall guidelines specify that certified renovators:

1. Must have signs present to notify of lead paint hazard
2. Must contain the work area sufficiently to prevent leaking of dust particles and water run-off (like hanging plastic barriers around the room, covering outside grounds with plastic or tarps, etc.)
3. Must dispose of protective barriers properly according to Hazmat guidelines (like inside trash bags disposed of by normal methods of trash collection)
4. Must clean area with HEPA filtration systems and water-based follow-up cleaning

 

The final rule requires renovation firms to use precautions to ensure that all personnel, tools and other items, including the exteriors of containers of waste, to be free of dust and debris before leaving the work area. There are several ways of accomplishing this. For example, tacky mats may be put down immediately adjacent to the plastic sheeting covering the work area floor to remove dust and debris from the bottom of the workers’ shoes as they leave the work area, workers may remove their shoe covers (booties) as they leave the work area, and clothing and materials may be wet-wiped and/or HEPA-vacuumed before they are removed from the work area

 

Prohibited practices:  Contrary to what the media has reported, hand scraping is allowed.  The law states:

 Based on the results of the Dust Study and in response to the voluminous persuasive public comments, this final rule prohibits or restricts the use of the following practices during renovation, repair, and painting activities that are subject to the work practice requirements of this rule:

• Open-flame burning or torching.  
• Machines that remove lead-based paint through high speed operation such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblasting, unless such machines are used with HEPA exhaust control.
• Operating a heat gun above 1100 degrees Fahrenheit.

NOTE: This final rule does not prohibit or restrict the use of dry hand scraping.

Documentation Requirements: Most Realtors and attorneys will tell you that documentation is paramount.  NAR will be instituting new guidelines for Realtors selling homes built prior to 1978.  The biggest change will be that any and all documentation of lead paint testing and lead paint removal is now considered material fact.  In other words, if you as a homeowner do any work after April 2010 or have tests done regarding lead based paint you are required by law to disclose those facts on the Sellers Disclosure and the Lead-based paint disclosure. 

The law: This final rule also requires firms performing renovations to retain documentation of compliance with the work practices and other requirements of the rule. Specifically, the firm must document that a certified renovator was assigned to the project, that the certified renovator provided on-the-job training for workers used on the project, that the certified renovator performed or directed workers who performed the tasks required by this final rule, and that the certified renovator performed the post-renovation cleaning verification. This documentation must include a copy of the certified renovator’s training certificate. Finally, the documentation must include a certification by the certified renovator that the work practices were followed with narration as applicable. The certification must include the specific information listed in § 745.86(b)(7). The firm must keep this information for 3 years after the completion of the renovation.

For more information on this new law and its potential impact on you as a homeowner or landlord, here’s the entire law.  Fast forward to pages 71-73 for procedural guidelines.