Projects that involve damage or disturbance of painted or coated surfaces, as well as development or improvements of existing structures, may involve some level of lead impact regardless of the type, age, or location of the property. The use of lead in paints and coatings has not been completely banned in the United States, and elevated blood lead concentrations in children and adult workers resulting in adverse health effects is still an issue today. Federal, state, and local regulations are in place and are continually updated to reduce human exposure to lead.
The United States Environmental Protection Agency (EPA) and the United States Department of Housing and Urban Development (HUD) developed standards and guidelines to eliminate lead-based paint hazards and prevent childhood lead poisoning. These standards and guidelines were implemented after Congress reported in 1992 that low-level lead poisoning was afflicting as many as 3,000,000 children under the age of 6, mainly as a result of ingestion of household dust containing lead.¹ To further eliminate potential childhood lead exposure, the EPA and HUD recently adopted new standards that reduce the allowable concentrations of lead in dust.
These regulatory changes are applicable to projects that require the removal of lead-based paint or a lead-based paint hazard, i.e. abatement projects. These changes are not applicable to most renovation or restoration projects. Regulations are in place to protect occupants and workers from lead exposure during these activities. Understanding the implication of applicable and current regulations is essential in order for a successful project to ensure regulatory compliance, to limit liability, to eliminate the potential of creating lead hazards, and to understand how compliance can impact project timelines and costs.
Prior to the start of any project, there must be a clear understanding of potential environmental hazards impacting the property and the regulatory compliance requirements to address them. Lead is one commonly encountered environmental hazard. Regulatory compliance is required for most projects to address occupational and/or childhood exposure to lead and lead-based paint.
It is a regulatory requirement to protect employees from occupational exposure to lead. This is true on every project and in any setting, whether the property is residential, commercial, public, or industrial. The Occupational Safety and Health Administration (OSHA) and state-specific programs are in place to protect workers from exposure to lead in a variety of forms, not just in lead-based paint. The requirements to implement specific regulatory compliance activities are triggered when workers are exposed to lead above established standards, as confirmed through air monitoring. Regulatory compliance is the contractor’s responsibility—as the employer to the employee—and is factored into work requirements and project costs.
Regulatory requirements to reduce or prevent childhood exposure to lead are in place for residential properties and child-occupied facilities constructed prior to 1978. There are two different project intents that trigger these regulations: renovation and restoration, and abatement. The difference between these two criteria is mainly the focus of the work being performed. Renovation or restoration occurs regardless of the presence of lead-based paint, while abatement is intended to permanently eliminate lead-based paint or lead-based paint hazards. The more likely of these scenarios, for property loss claims and development and improvements, is renovation and restoration.
Lead-based paint is defined as “…paint or other surface coatings that contain lead equal to or exceeding 1.0 milligrams per square centimeter or 0.5 percent by weight or 5,000 parts per million (ppm) by weight.” One common misunderstanding is that properties constructed after 1978 are “lead free.” This idea comes from the fact that the Consumer Product Safety Commission (CPSC) reduced the amount of lead allowed in residential paint in 1978; however, these paints can still contain some concentrations of lead.²
Regulations for childhood lead exposure are in place for two types of properties constructed prior to 1978:
Once you’ve identified that the property is target housing or a child-occupied facility, determine regulatory applicability based on the presence of lead-based paint or lead-based paint hazards.
For both renovation and abatement projects, lead-based paint is either assumed present or is identified through a lead-based paint inspection (a surface-by-surface investigation for lead-based paint). These inspections are performed by a Certified Inspector (Inspector) or Certified Risk Assessor (Risk Assessor) utilizing an X-Ray Fluorescence (XRF) device or paint chip sampling (see figures).
Inspectors or Risk Assessors are accredited under state or federal regulations, including training classes, licensing exams, and regular re-certification. The EPA Renovation Repair and Painting Rule (RRP Rule) also allows for an EPA-Certified Renovator (Renovator) to test painted surfaces using one of the methods described above or by using an EPA-recognized lead test kit. This is not recommended, as there are limitations to the kits.⁵
If no lead-based paint is identified, work activities for both renovation and abatement projects are not regulated.
Most property loss claims, or development and improvement projects, will not include lead-based paint hazards. For projects that do, a lead risk assessment is required. This can only be performed by a Risk Assessor. According to the EPA, “A risk assessment is an on-site investigation to determine the presence, type, severity, and location of lead-based paint hazards (including lead hazards in paint, dust, and soil) and provides suggested ways to control them.” Lead-based paint hazards can include paint-lead hazards (deteriorated lead-based paint) and dust-lead or soil-lead hazards (elevated concentrations of lead in dust and soil, respectively).
An important next step is to clarify project intent. Mistakes are commonly made at this step that can greatly impact the project scope and costs when the difference between renovation or restoration and abatement are not fully understood. After identifying lead-based paint, and regardless of project intent, a plan should immediately be developed and implemented to ensure damaged lead-based paint is not made worse and that no lead-based paint hazards are created.
The most common mistake we see is the assumption that the project requires abatement of lead-based paint when in fact the RRP Rule should be applied. Renovations and restoration activities may incidentally reduce or eliminate lead-based paint or a lead-based paint hazard, but that is not the intent of the activities. Renovation and restoration projects are regulated by the EPA under the RRP Rule (40 CFR Part 745 Subpart E – Residential Property Renovation) or through EPA-authorized state or tribal RRP programs. The RRP Rule is in place for two main reasons: to ensure that owners and occupants of regulated properties receive information regarding lead-based paint hazards prior to renovation or restoration activities; and to ensure workers are properly trained, contractors are properly certified, and certain work practice standards are followed.
Another common mistake is assuming that lead-based paint must be abated simply because it exists. Projects with the intent to permanently eliminate lead-based paint or lead-based paint hazards are regulated by the EPA (40 CFR Part 745 Subpart D – Lead-Based Paint Hazards and Subpart L – Lead-Based Paint Activities) or by state, territory, or tribal lead regulations. These lead-based paint regulations do not require abatement of lead-based paint or corrective actions. However, these regulations are in place to ensure that if lead-based paint activities and corrective actions occur, they are performed by accredited and trained individuals with accredited and licensed contractors, following specific work practice standards and criteria. Lead hazards and lead clearance standards are identified within these regulations.
The requirements for a lead-based hazard assessment and corrective action are generally project-specific and will probably not apply to most property claim losses or development and improvements. Common triggers are property funding, tenant-based assistance, and project assistance programs. HUD (24 CFR Part 35 – Lead-Based Paint Poisoning Prevention in Certain Residential Structures) implements the requirements for lead-based paint activities and corrective action to occur in target housing that is federally owned or receiving Federal assistance and for Federal housing activities or programs; it also provides methods for the required evaluation and hazard reduction activities. Some federally-funded projects and assistance programs (such as HUD-funded housing, with families receiving tenant-based assistance like Section 8, or program funding through the Community Development Block Grant (CDBG) program) implement hazard or clearance standards that are more stringent than EPA or state standards.
The next step after establishment of intent is understanding project compliance requirements.
Compliance with the RRP Rule is the responsibility of the contractor and should be factored into the project timeline and costs. All work must be performed by Certified Renovation Firms (Renovation Firm) with Certified Renovators, both certified through EPA or EPA-authorized state accreditation programs. There is no EPA certification for workers, but training is required. General contractors on projects must also be certified. One exception to the RRP Rule is called “Minor Repair and Maintenance Activities.” This means work activities are exempt from the EPA RRP Rule if they disturb six (6) square feet or less of interior paint per room or twenty (20) square feet or less of exterior paint and do not involve window replacement or demolition of painted surface areas. An example might be electrical or plumbing work.
Compliance with the RRP Rule typically includes information distribution and notification requirements, proper work-practices, and recordkeeping and reporting requirements, among others. A project design prepared by a third-party consultant is not required under the EPA RRP Rule but is always recommended by J.S. Held. Cleaning verification is required to confirm that work is complete under the EPA RRP rule. However, if requested by the client or required due to specific funding, dust wipe clearance sampling with laboratory analysis must be performed by an accredited Risk Assessor or Inspector, or by a Certified Dust Sampling Technician. Two project examples following the RRP Rule are as follows:
The abatement of both lead-based paint and lead-based paint hazards are regulated in the same manner. Abatement is performed by a licensed Lead Abatement Contractor (Contractor), Certified Supervisors (Supervisor), and Certified Abatement Workers (Worker) in accordance with an abatement project design prepared by a Certified Project Designer (Designer) and an occupant protection work plan prepared by a Designer or Supervisor. Lead abatement clearances must be performed by an Inspector or Risk Assessor and include a visual assessment and the collection of samples for laboratory analysis. All contractors and individuals must be licensed or certified either through EPA or state accreditation programs.
The contractor is responsible for compliance with applicable EPA or state regulations (and HUD regulations, where applicable) for lead-based paint activities. Compliance requirements typically include project notification, lead-safe work practices, post-abatement clearances, and preparation of an abatement report. Two project examples where these regulations may apply are as follows:
The EPA and HUD have adopted new standards that further reduce the concentrations of lead in dust. In 2017, the HUD’s Office of Lead Hazard Control and Health Homes (OLHCHH) lowered the dust-lead action levels for its Lead-Based Paint Hazard Control (LBPHC) and Lead Hazard Reduction Demonstration (LHRD) Grantees.⁶ This means that for those specific grant programs only, a lesser concentration of lead in dust is required to determine a dust-lead hazard and to pass dust wipe clearance criteria. The EPA also lowered the dust-lead hazard standards for floors and windowsills; however, they have not yet reduced the lead in dust clearance standard. These new EPA standards are to take effect 180 days after the date of publication on the federal register: January 6, 2020. A summary of the new action levels are as follows:
These new standards will probably not impact most projects for now; however, there are a few scenarios to consider. For projects impacted by the new clearance standards (such as for the LBPHC and LHRD grant programs), the Contractor must meet tighter cleaning criteria, and the Inspector or Risk Assessor must utilize a laboratory that can meet the lower limit of detection requirements. A Risk Assessor must utilize the correct dust-lead hazard criteria in place at the time of the assessment for projects requiring a risk assessment. If the lead project passes clearance criteria (as it stands now for the EPA), the project may still have a dust-lead hazard based on the new EPA dust-lead hazard criteria. Project documentation must clearly state that “clearance” is based on the current EPA clearance criteria, and not the EPA updated dust-lead hazard criteria.
In summary, occupational and childhood lead exposure regulations apply to multiple projects. Therefore, it is critical that project representatives are made aware of the potential hazards of lead-based paint on their projects and that they understand the regulatory requirements by stepping through the process of determining applicability. Discussions should center around whether (“if” and “when”) the regulatory standards apply and how these regulatory requirements may impact the project from cost, time, and liability perspectives. These regulatory requirements can be as basic as occupational exposure compliance or as involved as lead-based paint hazard compliance. Most projects will typically include RRP regulations, and some will include abatement regulations due to project and property funding requirements. It is also critical that new regulatory standards are understood and correctly applied.
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