Compliance with EPA's RRP Rule (40 CFR 745) (Renovation, Repair and Painting)...And the Real World

Whitepaper

TASA ID: 3352

Contents

What's the Issue?

The Law

Table I, Population Younger Than 6 Years of Age

Jurisdiction Details from Table 1, Online

What If...1

What If...2

Conclusion

What's the Issue?

By now, you have probably heard about the rules that tell us how to properly manage lead-based paint under the U.S. EPA, the U.S. Dept. of Housing and Urban Development (HUD), the Occupational Health and Safety Administration (OSHA), and most state, county, and local governments.  I am concerned about the issue of lead-based paint, among the wide diversity of building issues and standards, since I confront the problem in my construction expert witness practice and, my remodeling division, which performs a significant amount of work on older buildings.

Though this is obviously a generalization, basically, if a building was constructed before 1978 and it has not been certified free of lead-based paint by a certified assessor, work on it must comply with EPA, Title X.  From the perspective of a construction expert witness practice, most construction trade professionals, as well as apartment building owners, and many others may be held liable for failure to comply, and those who do comply must be held harmless despite a subsequently-discovered incident of a high blood lead level in an occupant.

So what is the problem?  Profit margins in small and large businesses alike are so tight due to economic conditions that their owners are reluctant to add any costs to construction work, even though it is required legally and in the best interest of people's health.  Politics has created a level of cynicism in some people so that Title X is simply seen as more governmental intrusion.  Their retort is a thought to the effect of, "C'mon, it's just dust! Just sweep or vacuum it, or whatever."  

Yes, the Renovate-Repair-Paint (RRP) curriculum includes data about the percentages of homes that are contaminated with lead- based paint from 1940-1959, 1960-1978, and All Housing.  According to the U.S. National Institutes of Environmental Health Sciences (NIEHS), the "Confirmed Elevated Blood Lead Levels (EBLLs) as a Percent of Children Tested" had dropped in every State, NY City, and Nationwide from 1997 through 2007.  You probably also played with mercury in your bare hand and rode your bicycle without a helmet!  However...

What is Lead?  Lead is a highly toxic metal that remains in the environment after use. Lead has been used in the manufacturing of many products for centuries. Until the 1970's, lead could be found almost everywhere in the United States. Homes were covered with lead paint. Cars used leaded gasoline. Water pipes, ink, batteries, crayons and many other household goods had lead in them. Since I work on so many older homes, I became certified to properly take samples for testing to determine whether lead remediation is necessary. 

What is Lead Poisoning?  Lead poisoning is a serious medical problem that occurs when too much lead accumulates in the body. When eaten or inhaled, lead is easily absorbed into the body and can cause developmental and neurological problems. Anyone can become lead poisoned, but children under the age of six and pregnant women are at greatest risk.

Why Be Concerned?  As a state with one of the oldest and most extensive industrial heritages, New Jersey contains a substantial amount of lead, subjecting its residents to the dangers of lead poisoning. A legacy of lead in housing, soil, and water often creates unacceptably high exposure levels to children, adults, pets and wildlife. Today, the primary cause of lead poisoning in children is lead-based paint. Lead-based paint was banned from residential use in New Jersey in 1971 and nationally in 1978. However, housing built prior to 1978 may be contaminated. Houses built prior to 1950 present the greatest risk due to the high percentage of lead contained in older paint. More than 30% of the housing in New Jersey was built before 1950. In addition, every county in the State has more than 9,000 housing units built before 1950. For these reasons, lead poisoning prevention is of significant importance to the people of New Jersey.

Where is Lead Found?  Lead-Based Paint Lead is often found in peeling and chipping lead-based paint and dust located in houses and apartments built before 1978. Although lead-based paint for residential use was banned in New Jersey in 1971, it was still widely available until the national ban on sales in 1978. However, lead is currently used in industrial paints.

Dust and Debris  Standard maintenance and remodeling practices in old homes may release lead through dust and debris. This is also true for renovation of other structures, such as schools and bridges.

Soil may contain lead from paint fallen from older buildings, industrial pollution, and waste from batteries. Also, until the 1980's, lead was used in gasoline, and lead exhaust from passing vehicles was deposited on the ground. Consequently, a great portion of land, including playgrounds and schoolyards, has lead-contaminated soil.

Soil around newer homes that were constructed on orchard sites may be contaminated with lead arsenate that was formerly used on crops.

Drinking Water  If an older home or facility was constructed using pipes soldered or welded together with metals containing lead, drinking water may be contaminated. When water sits in the pipes for several hours, the lead is released and contaminates the water.

Work Place Exposure  People whose occupations or hobbies involve lead may carry lead residue on their clothing or other objects, and unknowingly expose their families. Some work places and/or occupations where it is common to be exposed to lead include auto body repair shops, bridge and water tank painting and sanding, marine painting and sanding, radiator work, demolition of older buildings and cars, and battery manufacturing.

Food and Household Items  Imported food may contain lead if it was stored in lead soldered cans or kept or cooked in pottery, ceramic, or crystal containers made with lead. Pottery is often covered with glazes that contain lead. This is primarily a problem in industries that do not have the resources to ensure their kilns are hot enough to seal in any lead toxins. Also, imported candles that have metal wicks may contain lead. Pigments used in plastics and labels may increase exposures to lead. Products can include imported mini-blinds, toys, candy labels, shellacs and clear coatings.

Cosmetics or make-up from other countries often contain lead, and are commonly used in Middle Eastern and South Asian cultures.

Home Remedies  Many home remedies used by cultures throughout the world contain lead and are particularly dangerous as they are ingested. These remedies include Paylooah from Southeast Asia, Azarcon from Mexico, and others such as Greta, Ruedo, Alacron Kohl, Ghassard, and Kandu.

SOURCE: New Jersey Dept. of Community Affairs, Division of Codes & Standards

The Residential Lead-Based Paint Hazard Reduction Act of 1992

Lead-based paint is only one of the many materials and issues that the US Department of Environmental Protection manages. 

The Federal government, under the provisions of the Lead-Based Paint Hazard Reduction Act of 1992, carries out an extensive program of regulation, outreach, and research to reduce lead hazards and to eliminate childhood lead poisoning. Many state and tribal governments have lead programs as well. 

Lead poisoning can affect people of any age, race, geographic region, or socioeconomic level. Anyone who is exposed to lead and who unknowingly ingests or breathes it may develop an elevated blood lead level, but the effect of overexposure to lead is greatest on children. Children living at or below the poverty level, children living in urban areas, and children living in older houses with deteriorating lead-based paint, or where renovation is in progress, are at highest risk.  Also, children of some racial and ethnic groups living in older housing are disproportionately affected by lead. For example, 22% of black children and 13% of Mexican-American children living in housing built before 1946 have elevated blood lead levels compared with 6% of white children living in comparable types of housing.

Children are at a greater risk from exposure to lead than adults for several reasons:

• Children are more vulnerable to damage because their bodies and nervous systems are still developing.
• Frequent hand-to-mouth activity brings children into greater contact with lead in the environment, especially in lead dust and soil.
• Children absorb and retain a larger percentage of ingested lead per unit of body weight than adults, which increases the toxic effects of the lead.

The de-leading of gasoline and food containers in the United States was successful in reducing average blood-lead levels by 70 percent between 1970 and 1990. In addition, the Consumer Product Safety Commission banned the sale and use of lead in residential paint over 0.06 percent in 1978.

However, even with these aggressive actions to reduce the amount of lead in a child's environment, many continue to have blood-lead levels that exceed the level of concern of 10 micrograms per deciliter of blood set by the Centers for Disease Control and Prevention (CDC). Data from phase two of the Third National Health Evaluation and Nutrition Survey (1991-1994) indicate that 4.4% of U.S. children - about one million between one and five years of age have elevated blood-lead levels at or greater that 10 micrograms/deciliter (ug/dl). Blood-lead levels were highest among one to two year olds with 5.9 % having elevated blood-lead levels. Many population groups that have been poisoned most by lead in the past continue to be at risk; for example, the incidence of lead poisoning is 2.3% among Caucasian children, 4.0% among Mexican American children and 11.2% among African American children. Results of NHANES data collected in 1999, 2000, and 2001 regarding the number of children with elevated blood lead levels are not yet available to update the estimates from the 1991-1994 NHANES. (Source:  Phase 2 of the Third "Blood Lead Levels in the U.S. Population," Morbidity and Mortality Weekly Report, February 21, 1997.)

Adults 

Approximately 10 adults die each year from lead poisoning. Almost all people have some lead in their blood (the adult average is less than 5 mg/dL).

Adults living next to smelters, mines, and similar industrial enterprises should be concerned about exposure levels. High concentrations of lead can be found in soils of many orchards where pesticides were used for an extended period of time. Recycling batteries at home is very dangerous. During the process, some lead becomes airborne, and airborne lead can be absorbed in high quantities.

Adults who live in homes containing lead-based paint can be exposed when they do renovation or remodeling work that disturbs lead-based painted surfaces. It is safest to assume that all paint in a house built before 1978 is lead-based until testing has shown otherwise. 

For further information, call 1-800-424-LEAD.  There are also a number of informational documents available on the EPA website (www.epa.gov/lead) under the additional resources link. 

SOURCE: U.S. EPA                                                         

The Law

The New EPA Lead Rules and You - In 2008, the Environmental Protection Agency (EPA) updated its lead rules. As a professional builder and remodeler, I am required to use prescribed techniques to protect you, my staff, your home, institution, or child care or commercial building, and the outdoor environment. As a result, we are now certified by the U.S. EPA and Dept. of HUD, and NJ DCA , and follow specific work practices to prevent lead contamination..

Regulations for landlords; remodelers, painters, and others who perform work on older homes... (http://www.epa.gov/reg5rcra/ptb/lead/)

Renovation, Repair and Painting Rule Section §402(c)(3) of the Toxic Substances Control Act - On March 31st, 2008, the U.S. EPA issued a new rule requiring lead-safe work practices to reduce exposure to lead hazards created by renovation, repair and painting (RRP) activities that disturb lead-based paint. The rule addresses hazards created by renovation, repair and painting activities that disturb lead-based paint in "target housing" and "child-occupied facilities." The RRP rule will establish requirements for training renovators and dust sampling technicians; certifying renovators, dust sampling technicians, and renovation firms; accrediting providers of renovation and dust sampling technician training; and for renovation work practices.  

Residential Lead-Based Paint Disclosure Rule/Section § 1018 of Title X - Although highly toxic lead based paint was banned in 1978, homes built in 1978 and before may still contain paint containing lead. Deteriorating paint in such homes presents a lead hazard through inhalation and ingestion of paint chips and lead-contaminated dust and soil. Lead may also be present in varnish, caulk, and other materials. It is important to find out if your home has lead in it or around it. Because of these threats, U.S. EPA has regulations to protect both renters and buyers.

Under the U.S. EPA Residential Lead-Based Paint Disclosure Rule/Section 1018, the landlord or rental agent must give prospective tenants a copy of the pamphlet, "Protect Your Family from Lead in Your Home", and must inform them of any known lead-based paint hazards in the residential unit and common areas. The landlord is not required to test for lead paint or remove it.

If buying a home, the seller or agent must give the buyer a copy of "Protect Your Family from Lead in Your Home" and inform the buyer of any known lead based paint hazards. The seller is not required to test for lead. The seller must offer the prospective buyer a 10-day opportunity to have a lead inspection or risk assessment performed. The buyer cannot be obligated to sign a contract until given this opportunity. The parties may agree to adjust the 10-day period. 

Copies of the "Protect Your Family from Lead in Your Home" in both English and Spanish are provided through this web link: http://www.epa.gov/lead/.

The Pre-Renovation Education Rule/Section §406(b) - If the homeowner hires a contractor to renovate a home built before 1978, the contractor must provide a copy of "Protect Your Family from Lead in Your Home" before work begins. The Pre-Renovation Education Rule/Section §406(b) of TSCA requires renovators of most housing built before 1978, working for compensation, to provide the owner and occupant of the housing the pamphlet "Protect Your Family From Lead In Your Home" before beginning the renovation. If the owner does not live in the housing, the owner must be provide the occupant information regarding the nature and timing of the renovation. The renovator is required to keep specific notification documentation.

If homeowners decide to renovate or rehab their home themselves, U.S. EPA suggests the individuals practice lead-safe work practices. When renovating homes built before 1978, homeowners must take precautions when disturbing old paint. U.S. EPA suggests homeowners read the following brochures before doing any home renovation project that may disturb old paint: "Reducing Lead Hazards When Remodeling Your Home" and Don't Spread Lead: A Do-It-Yourselfer's Guide to Lead-Safe Painting, Repair, and Home Improvement (booklet). Go to the National Lead Information Center web page or contact the Lead Hotline at 1-800-424-LEAD for more information on lead hazards and their prevention.

SOURCE: http://www.cdc.gov/nceh/lead/data/StateConfirmedByYear_1997_2007Web.htm

Conclusion

Yes, 40 CFR 745 is real, as are the penalties for violating its provisions. Compliance is not difficult as long as we make a best effort to provide proper notifications and training, use prescribed techniques, and teach our clients and others skillfully about these issues. For those who doubt the importance of dealing properly with lead, non-compliance can 

•  Break or financially damage an A/E/C company; its owners and other stakeholders, and 
•  Cause any illness that a neurotoxin can create, including death.

As in all of our architecture, engineering, and construction work, knowledge, skills, and excellence are/should be a way of life. My company works with owners, other A/E/C professionals, attorneys, and prosecutors to help ascertain the facts of alleged complaints versus standards of performance, legality, building code and related ordinances, manufacturers' specifications, and compliance with architectural/engineering plans and the contract. A conscientious best effort at mutuality, legality, and artisanship is obviously key to project success for owners and/or our fellow A/E/C colleagues. 

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.   

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