Selectwood Perspectives

Lead Paint Rules and Remediation

New Rules Regarding Lead Paint Repair and Renovation

The word "lead" may conjure images of dust, paint chips and old homes, but lead is not an issue of the past.  As rules and regulations governing lead-based paint renovation, repair and painting continue to evolve; contractors will be expected to stay updated to new rules and handling practices.  Education is essential to ensuring they develop a proactive strategy disturbing existing lead paint.  One thing is for sure – lead paint in older homes and buildings is a real problem, and it’s here to stay.

Though lead paint was banned for residential use in 1978, the health issues associated with it remain.  According to the Environmental Protection Agency (EPA), children under the age of six are particularly susceptible to the potentially harmful effects of lead paint chips and dust that can be disturbed during renovation.  Lead can affect a child’s brain and nervous system. Lead dust ingestion may cause reduced IQ, learning disabilities and behavioral issues.  Pregnant women can “transfer lead to their fetuses,” and adults can suffer the ill-effects of low levels of lead, which include high blood pressure and hypertension.

To combat the threat of creating more lead paint dust in buildings, the EPA established the Renovation, Repair and Painting Program (RRP rule), which was published on April 22, 2008, and originally went into effect on April 22, 2010. On June 15th the EPA announced it would delay enforcement until October 1, 2010 for the enforcement of contractor training and certification. The delay in training enforcement does not mean that contractors will still not be liable for not using lead safe practices even if they are not currently certified. As the revised enforcement October 1 date draws closer, questions regarding the testing, training, and safe practices for renovation linger among contractors.

Aimed at contractors, painters, electricians, plumbers, HVAC contractors and other trade contractors, the rule outlines appropriate methods of containing work areas with lead-based paint. Any interior or exterior surface originally painted in 1978 or earlier is considered to be contaminated by lead paint even if the surface was later covered with lead free paint. RRP guidelines prohibit work practices “which generate significant amounts of lead-contaminated dust.  The rule requires firms working on homes built prior to 1978 receive training, complete a certification and register with the EPA.

Even for those working to proactively adhere to the new rule, compliance is complicated by the availability of EPA-approved, LeadCheck Kit from Hybrivet Systems, the only other kit available for testing is the State of Massachusetts Kit.  Though it does provide an alternative, the Massachusetts Kit is only available to Massachusetts certified contractors.

As the April 22 compliance date passed, concern grew over the limited availability of training classes and individuals qualified to facilitate training complicates the issue.  On May 27, 2010, when April 22 was still the effective date, the Senate opted to introduce a bill (not yet passed by the house) to temporarily block fines contractors can incur if they aren’t yet in compliance with the EPA rules.  Sen. Susan Collins of Maine, who sponsored the bill, said she supports efforts to “rid lead-based paint from our homes,” but took issue with the burden on contractors who are not provided sufficient training opportunities from the EPA.

“The problem is there still aren’t enough EPA-certified trainers in place to certify contractors,” she said.  “As a result, contractors face devastating fines...The intent of my amendment is to give small contractors and construction professionals more time to comply with the new rule,” she explained.

The EPA has heard the concern – though October 1 is the new effective date, contractors and renovators will have until the last day of the calendar year for training, provided they enroll by September 31.  Will extra time solve the issue of training availability?  Only time will tell.  

Local enforceability of the new law is also in question as civic health officers and building inspectors gain a better understanding of their role in RRP rule requirements. 

According to Health Officer/Building Inspector Kevin Kelley, based in Hampton Falls, New Hampshire, local officers grappled with their enforcement roles during a recent question and answer session with the EPA.  It’s become clear the onus of the RRP rule lies with local officials as much as it does with contractors and homeowners. “There is record keeping required of me too,” Kelley said.

In addition to familiarizing himself with new record-keeping obligations, Kelley said he has already been working to assist local governments in integrating the RRP rule – its expenses and contractor requirements - when requesting bids for work on town property.

In addition to training and enforceability, RRP rule language and definitions are already in question. Another point of confusion is the issue of high efficiency particulate (HEPA) vacuums for lead cleanup as required within the rule.  Though the EPA has mandated the use of HEPA vacuums, standards for EPA-approved vacuums remain blurry.  Though some vacuums bear the HEPA designation in name, vacuum leakage is a concern. Many machines equipped with retrofitted filters are not necessarily up-to-standard for RRP rule compliance. 

Though feasibility of training, compliance, enforceability and semantics are still points of uncertainty, recent activity suggests the EPA is dedicated to working out the kinks and enforcing the RRP rule to its fullest extent as soon as possible.  Amendments to the rule slated that went into effect on July 6 place more responsibility on contractors’ plates. 

One amendment deals with the issue of “cleaning verification,” which requires a comparison of a sample from a recently cleaned work area with an EPA Cleaning Verification card. Another mandate deals with resident notification, which demands contractors provide documentation of compliance and RRP training to residents in buildings undergoing renovation.

The July 6 elimination of the “opt-out” provision is the most telling sign of the RRP rule’s permanence.  The “opt-out” provision initially permitted homeowners in single-family residences to allow renovations without RRP rule adherence in homes that were owner-occupied and did not have any pregnant residents or residents under the age of 6.

In the future, those who aren’t trained could face lawsuits, legal fees and be slammed with EPA fines that reach $37,500 per day.  In addition to potential penalties, contractors will have to recalibrate the way in which they do business - extra costs associated with proper lead cleanup will need to be incorporated into quotes.

Now is the time to for contractors to focus on education, training and the development of a plan to deal with the issue of lead. Lead isn’t an issue of the past.  It’s an issue of the present, future and an entire industry.