New EPA Lead-Based Paint Rules Go Into Effect

Almost a year ago, IDA alerted its membership regarding rules issued by the Environmental Protection Agency (EPA) requiring the use of safe practices when working in certain properties constructed before 1978 where lead-based paint was or may be present.  Those rules will go into effect April 22, 2010, and now members must follow those practices in any property subject to the rules.

The EPA rules – codified at 40 CFR Part 745 – require all contractors working on residential, public or commercial buildings where children under the age of six are present on a regular basis (such as child care facilities and schools) will need to be certified in and use of lead safe work practices, if the building has or may have lead-based paint.  The rules specifically apply to buildings constructed or utilizing materials manufactured before 1978.

There has been a lot of confusion and discussion among IDA members and staff as to whether employees will need to be certified under the rules, and then whether the safe practices need to be used for particular projects.  The confusion is particularly great when it comes to a removal and/or repair of a garage door, which can involve installation or modification of rails, runners, hinges, and trim.  For this reason, IDA contacted the EPA to get clarification on the rule, and was advised that members should follow these guidelines:

1. If the property in question was built before 1978, and is used for housing, or is a facility where children under the age of six may be present on a regular basis (such as child care facilities or schools), then the contractor must verify whether there is lead-based paint present, assuming the work to be performed would disturb at least 20 square feet of paint (for external work).
2. If there is lead-based paint, or if the contractor does not perform the testing (and therefore must assume that there is lead-based paint), the contractor must observe the safety rules for dealing with the lead-based paint.

The safe work practices identified under the rules and commentary include properly containing the work area, minimizing dust, and then thoroughly cleaning up the area after completion of the project.  The certified contractor must utilize appropriate equipment, including warning signs, plastic drop cloths and heavy tape, HEPA vacuums, and wet mops for clean-up.  The work must also be performed in order to generate as little dust as possible, and whenever possible to avoid open flames, heat guns, and any form of sanding or grinding equipment unless equipped with a HEPA vacuum attachment.

EPA had already required that contractors performing renovation, repair and painting projects that disturb lead-based paint, provide to owners and occupants of child occupied facilities built prior to 1978 the lead hazard information pamphlet entitled “Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools”.  That pamphlet is available from EPA at http://epa.gov/lead/pubs/renovaterightbrochure.pdf.  The rules also require contractors to prepare a pre-renovation disclosure form to document compliance with these requirements.

If you are going to perform work on an affected property, and the work would be subject to the rules, certification and compliance is essential for avoiding serious liability.  The rules provide for penalties of up to $32,500 per violation per day, so the cost of evading the new rules is very steep.

One of the most important tools available for members, whether you will be performing work under the rules or avoiding such projects, is a lead-based paint test kit.  There are simple test kits which are available for less than $20.00 each, including the LeadCheck kit, and the State of Massachusetts test kit, and there are various retail and online vendors who market these and other EPA-approved testing equipment.  For homes which may be subject to the rules, a test kit is essential for determining whether lead-based paint is present, and therefore whether the safety practices are required.

Door dealers should also keep in mind that their employees must continue to observe safety standards, even if the work does not involve properties where young children may be present.  In particular, companies should make sure their installers are familiar with Section 1926.62 of the federal OSHA regulations, which applies to all construction work where an employee may be exposed to lead.

Whether or not you plan to work on EPA-targeted properties, the following are additional important practices under the new rules:

• When handing a service calls it is a good idea to add the age of the structure to a customer information sheet as a tip off to the potential of lead based paint.  This information may determine to the need for a certified technician from your company.
• Notify customers either verbally and/or via a signed notification form that they may be charged a fee for a lead-based paint verification test and/or remediation work if they choose to proceed with the work.  Be sure customers understand that any service company must comply with the same procedures to avoid suspicion of overcharges and comply with the law.
• Make it company policy to communicate the dangers associated with lead based paint to all employees.  Further, make sure that all employees know and understand the basics of these new regulations regardless of certification status.  This could include Toolbox Talks, posters, or employees meetings.