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July 9, 2010

Updates Regarding EPA’s Lead Renovation, Repair, and Painting Rule

By: Jennifer Coghlan — Filed under: Compliance, Emerging Issues, Lead Paint — Posted at 3:21 pm

In April 2008, EPA issued its Lead Renovation, Repair and Painting Rule, which required the use of lead-safe work practices during renovation, repair or painting activities in pre-1978 homes.  The 2008 rule, however, allowed owner-occupants to “opt-out” of that requirement by certifying that there were no children under the age of 6 living in the home.  As of July 6, 2010, owner-occupants no longer have that option and all such work in pre-1978 homes must be performed by a certified contractor in accordance with lead-safe practices.   A copy of the May 6, 2010 final rule revoking the “opt-out” provision is available here.

EPA has also announced that it has reopened the comment period on its May 6, 2010 proposed rule to require dust wipe sampling after many types of renovations.  Comments will be accepted until August 6, 2010.

Finally, in recognition of the difficulty contractors have experienced in locating available training classes, EPA issued a guidance document on the enforcement of the new lead rules.  EPA will not initiate enforcement actions for violations of the firm certification requirement until October 1, 2010, and will not enforce certification requirements against individual workers provided that they apply to enroll in certification classes by September 30, 2010 and complete the required training by December 31, 2010.   However, EPA will continue to enforce against firms and individuals who do not comply with the required lead-safe work practices and associated recordkeeping requirements.  A copy of EPA’s Frequent Questions on EPA’s June 18, 2010 Implementation Guidance for the Renovation, Repair and Painting Rule is available here.

May 6, 2010

EPA Proposes Changes to Its Renovation, Repair and Painting Program Governing Disturbances of Lead-Based Paint

By: Jennifer Coghlan — Filed under: Compliance, Emerging Issues, Lead Paint — Posted at 2:12 pm

In April 2008, EPA promulgated regulations governing renovations in target housing (i.e., any housing constructed prior to 1978) and child-occupied facilities.  The rule requires contractors to become certified by EPA, to notify owners and occupants before commencing renovations that disturb lead-based paint, and to follow certain safe work practices in conducting such work.  The certification and safe work requirements went into effect on April 22, 2010.  The current regulations require cleaning verification at the end of a renovation project, but do not require any testing.

In response to the April 2008 Final Rule, several petitions were filed challenging the rule, which were consolidated in the D.C. Circuit Court of Appeals.  As a result of an August 2009 settlement, EPA committed to propose certain changes to the rule.

Today, EPA issued a proposed rule to amend the existing regulations to require post-renovation sampling and an advanced notice of proposed rulemaking announcing its intention to expand the scope of the Renovation, Repair and Painting rule to include public and commercial buildings.

EPA’s proposed rule would require dust wipe testing to be performed for certain types of interior renovations:

  • Use of a heat gun at temperatures below 1100 degrees Fahrenheit.
  • Removal or replacement of window or door frames.
  • Scraping 60 square feet (“SF”) or more of painted surfaces.
  • Removing more than 40 SF of trim, molding, cabinets, or other fixtures.

Such testing would be required after the cleaning procedures specified in the existing rule have been performed.  Samples would be taken from uncarpeted floors, windowsills, and window troughs within each room in the work area.  In addition, the proposed testing requirements would include one floor sample in an area adjacent to the work area that has not been cleaned.

The proposed rule would only require that clearance standards be met for renovations that disturb paint using machinery such as power sanders or abrasive blasting, or for the demolition of plaster and lath building components (such as walls and ceilings) through destructive means.  For all other renovations, re-occupancy could occur prior to the receipt of sampling results.  The proposed rule would require that a dust wipe testing report be provided to the renovation firm within 3 days of the tester’s receipt of sampling results, and that owners and occupants receive such report from the renovation firm within 3 days of its receipt thereof.

The proposed rule also includes several other modifications and clarifications to the existing rule.  A copy of the proposed rule is available here.

EPA’s advance notice of proposed rulemaking seeks comments on several issues related to the potential regulation of renovations in public and commercial buildings, including the appropriate scope of any definition of “public building” and “commercial building”, leaded dust generation from interior and exterior renovations at such buildings, the prevalence of lead-based paint in such buildings, and the types of renovations frequently performed in such buildings and the methods of conducting such work.  A copy of the full notice is available here.

For more information on EPA’s Renovation, Repair and Painting Program and these proposed changes thereto, please contact Steven Russo.

February 26, 2010

New Lead-Based Paint Requirements Under EPA’s Renovation, Repair And Painting Rule Go Into Effect In April 2010

By: Steven C. Russo — Filed under: Compliance, Emerging Issues, Lead Paint — Posted at 1:04 pm

In April 2008, EPA promulgated regulations governing renovations in target housing (i.e., any housing constructed prior to 1978) and child-occupied facilities.  The rule was designed to ensure that owners and occupants of target housing and child-occupied facilities receive information on lead-based paint hazards prior to the commencement of renovations and to ensure that firms performing such work are certified and safe work practices followed.  (A copy of the final rule is available here.)

Pre-renovation notice requirements had been in effect since 1999; the April 2008 regulation simply specified a new pamphlet to be distributed to owners and occupants as of December 22, 2008.  (A copy of that pamphlet is available here.)

However, the new regulations also require that, as of April 22, 2010, all renovations in target housing or child-occupied facilities be conducted by certified renovators and in accordance with specified lead-safe work practices.  This represents a sea change in addressing lead paint issues in pre-1978 housing and child-occupied facilities.  The term “renovations” is broadly defined in the regulations to include any “modification of any existing structure, or portion thereof, that results in the disturbance of painted surfaces” and includes such activities as modification of painted doors, window repair, and weatherization projects.

Significantly, and unlike the abatement requirements of New York City’s lead paint law, the EPA regulations go beyond rental housing and apply to work performed in co-ops and condominiums.  Owners of rental properties performing renovation work themselves will need to be certified and ensure that the lead-safe work practices are followed.  Where outside contractors are used, it will be prudent to ensure that the contracts require EPA certification.  For co-ops and condominiums, it also would be prudent for the corporation or homeowners’ association to take steps to ensure that all work performed within the building complies with these new rules.  Thus, alteration agreements for owner renovations may need to be changed and other steps taken to ensure that the EPA disclosure and renovation rules are followed by contractors working in the building.

For more information and assistance in ensuring that you are ready for these new regulations, contact Steven Russo or David Yudelson.