“Lead”-ing Questions

EPA offers clarity on the finer points of the RRP Rule
January 07, 2011

Editor’s note: Designer Mark Brady, president of Mark Brady Kitchens, has been recounting his experience and frustrations with trying to comply with the Environmental Protection Agency’s Renovation, Repair, and Painting (RRP) Rule on K+BB’s blog, kbbcollective.com. The rule went into effect on April 22, 2010 and was designed to protect homeowners from lead contamination by requiring certification of all contractors performing renovation and painting jobs that disturb lead-based paint in homes built before 1978. K+BB asked Brady to submit some lingering questions regarding compliance, which were then forwarded to the EPA. Following are the EPA’s responses.

If a house is built pre-January 1, 1978, does that mean when it was started or when the certificate of occupancy was issued, or some other criteria?
EPA has received similar inquiries in the past and has developed a frequent questions database and downloadable PDF document. The question you ask is similar to FQ# 5835: “How does a firm or renovator document or confirm the age of the structure? Is a signed statement by the occupant sufficient? Can publicly available information such as tax records, etc. be sufficient?”

Answer: Renovation firms are responsible for determining the age of the property. The property owner is likely to be a good source of information on the age of a home or other building, but the firm may not rely on the statement of the property owner as to the construction date of the building if there is evidence to the contrary. If in doubt, renovation firms can use tax assessments, property records, and similar information to determine the date of construction. Finally, the renovation firm may always assume that a home or child-occupied facility was constructed before 1978.

Is it true that when a house is pre-1978, we can test for lead and skip the lead-safe procedures if none is found?
If a home is found not to contain lead-based paint, it is not subject to the rule’s requirements. If lead-based paint is present, the requirements of the rule must be followed. To find out more details about the specific requirements of the rule, see the Agency’s Small Entity Compliance Guide to Renovate Right at http://epa.gov/lead/pubs/sbcomplianceguide.pdf In addition, EPA has received similar inquiries in the past and has developed a frequent questions database and downloadable PDF document. The question you ask is similar to FQ# 6681: “Is a lead-based paint inspection, performed by a certified inspector or risk assessor, that includes a written determination that various building components are free of paint or other surface coatings containing lead equal to or in excess of 1.0 milligrams per square centimeter (mg/cm2) or 0.5% by weight sufficient to determine compliance with requirements of the RRP rule?”

Answer: The RRP Rule does not apply to target housing where a certified inspector or risk assessor has determined that the components affected by the renovation are free of regulated lead-based paint or that a property is free of lead-based paint for the purposes of the Lead Disclosure Rule.

The RRP Rule does not require certified inspectors or certified risk assessors to test each and every component that will be affected by a renovation. Certified inspectors or risk assessors are free to conduct representative sampling, so long as the components to be tested are chosen in accordance with documented methodologies, such as the HUD Guidelines. However, because certified renovator training does not cover sampling protocols, certified renovators using EPA-recognized test kits to determine the applicability of the RRP Rule must test each and every component that will be affected in order to determine that the RRP Rule does not apply to a particular renovation.

On the outside of a building, it is my understanding that all ground, bushes and trees must be protected from chips and dust. What do we do with steep slopes and shrubbery around the foundation when we need to work up close or with ladders and scaffolding? Isn’t it necessary to remove the landscaping elements to properly cover and protect the ground as specified?
No, it is not necessary to remove landscaping elements. You can cover them with plastic sheeting which will capture chips and prevent dust from getting into the soil where children could play and potentially be exposed to lead-based paint chips or dust.

EPA has received similar inquiries in the past and has developed a frequent questions database and downloadable PDF document. The question you ask is similar to FQ# 6657: “Under the Renovation, Repair, and Painting (RRP) Rule, in exterior containment if a large tree or shrub is within the work area can the plastic be placed around the base and would the plant, however large, also need to be covered?”

Answer: The Renovation, Repair, and Painting (RRP) Rule does not specifically address containment of trees or shrubs, but if dust, debris, or residue remains in the tree or shrub at the conclusion of the job, the site will not pass visual inspection. The work practices for exterior projects are based on a performance standard—the certified renovator or a worker under the direction of the certified renovator must contain the work area so that dust or debris does not leave the work area while the renovation is being performed. In addition, at the end of the job, a certified renovator must perform a visual inspection to determine whether dust, debris or residue is still present on surfaces in and below the work area, including windowsills and the ground. If dust, debris or residue is present, these conditions must be eliminated and another visual inspection must be performed.

How do we ensure ladders are firmly planted in the ground in multiple locations when it is covered and protected with plastic. Won’t slippage be an issue? (This is especially true when the plastic is wet from dew or frost.)
Builders should use their best professional judgment. There are non-skid pads on many ladders that prevent slippage. Or a piece of plywood can be placed on top of the plastic as a secure location to place a ladder and prevent slippage.

Plumbers, heating contractors, electricians, and cabinet and counter installers have been telling me they don’t need to be certified, trained or firm registered because the Rule doesn't apply to them. Is this true?
It depends. If a contractor disturbs more than six square feet of painted surfaces on the interior of a pre-1978 home or child-occupied facility (or more than 20 sq. ft. of painted surfaces on the exterior of a building), the rule’s requirements apply. Many thousands of plumbers, HVAC contractors, electricians, cabinet and counter installers, etc. have already become EPA-certified and taken training in lead-safe work practices from EPA-accredited private training providers.

When I have set up a containment area, don’t those mechanical contractors and the like need to be certified to do work in the containment area? Or do I just remove everything and send them in when it’s vacuumed and “clean enough” to remove the containment?
The rule does not require that every worker at a job be a certified renovator. Certified renovators can conduct on-the-job training for other workers to ensure that the job is carried out in a lead-safe manner and that the work area is contained, the dust is minimized and the clean up is thorough. The rule does require that a certified renovator be present at certain key parts of the job, such as setting up the containment and at the cleaning verification stage. EPA has received similar inquiries in the past and has developed a frequent questions database and downloadable PDF document. The question you ask is similar to FQ # 6797: “If a general contractor hires a subcontractor to work at a renovation site, does the subcontractor need to be a certified firm if the subcontractor does not disturb any paint?”

Answer: Firms performing tasks that disturb no painted surfaces whatsoever do not need to be certified. However, since conditions at the job site may be difficult to predict, EPA strongly recommends that all firms involved in the renovation be certified and use properly trained and certified personnel. For example, a firm hired to install an HVAC system after demolition of painted surfaces has taken place may find that to complete the job painted surfaces need to be disturbed. The HVAC firm may not engage in activities that disturb painted surfaces if it is not certified.

As every renovation job is different, it is up to the firm acting as the general contractor to determine what activities are within the scope of the renovation and to ensure that other firms are properly trained and certified for the tasks they will be performing. All firms, including the firm acting as the general contractor, are responsible for making sure the renovation is performed in accordance with the work practice standards, including keeping containment intact and making sure lead dust and debris do not leave the worksite. General contractors should keep in mind that if a firm hires a subcontractor that fails to follow the work practice standards or otherwise violates the RRP rule, the firm that hired the subcontractor is also responsible for the violation.

In class, the procedure for certifying a space to be clean enough to re-occupy involved using wet Swiffers for every 10 sq. ft.—starting at the ceiling and going to and across the floor—and then administering the little window card test. How can vacuuming rough, bare studs and joists and sub-floors, etc., be considered clean enough to drop the containment and occupy and work regularly?
The RRP rule requires cleaning verification, not clearance testing, after renovation jobs. Cleaning verification involves wiping floors, countertops, and windowsills with wet disposable cleaning cloths and comparing the cloths to a cleaning verification card distributed by EPA. If the cloths match or are lighter than the verification card, those surfaces have been adequately cleaned. When all surfaces pass cleaning verification, the work area is ready for reoccupancy.

Clearance testing is a different process. EPA requires clearance testing after lead abatement projects. Clearance testing is performed by a certified inspector or risk assessor, who collects dust wipe samples from the floors and windows in the work area. These samples must be analyzed for lead content by a laboratory recognized under the National Lead Laboratory Accreditation Program (NLLAP). If the sample results are below the clearance standards, the area has passed clearance and is ready for reoccupancy. The clearance standards are 40 micrograms of lead per sq. ft. of floor area, 200 micrograms of lead per sq. ft. of windowsill area, and 400 micrograms of lead per sq. ft. of window trough area. If any samples are above the clearance standards, the surfaces represented by that sample must be recleaned and retested.

Building owners or contractors may choose to have clearance testing performed instead of cleaning verification after renovations. If this alternative is chosen, the samples may be collected by a certified inspector, risk assessor, or dust sampling technician.

When the lead-bearing components have been deposited in a dumpster, can bare studs and joists and sub-flooring with the bark still on them be vacuumed off and called “clean enough” to remove the “containment” and work normally?
The rule requires that the certified renovator conduct a cleaning verification to ensure that a thorough cleanup takes place after the job is complete. The Small Entity Compliance Guide to Renovate Right outlines the steps required for cleaning verification.EPA has received similar inquiries in the past and has developed a frequent questions database and downloadable PDF document. The question you ask is similar to Question (6823): “If a renovator uses the required practices to remove containment and clean a work area, then performs successful cleaning verification, can the balance of the project then be done using uncertified workers and without reference to the work practices required by the RRP Rule?”

Answer: Yes, as long as the balance of the project can be completed without disturbing a painted surface.

Once the studs, joists and sub-floor are vacuumed and the containment is down and work proceeds as “normal,” can the homeowner re-enter the work area before it is “damp-cloth-cleanable”?
There is no prohibition on the homeowner entering the work area; however, it is a good practice to keep the work area contained so that children, pets, etc., do not enter the area and dust is not inadvertently picked up from the work area and tracked to other parts of the house or building.

Do dumpsters really need to be covered and locked down at night? How do you do that to a 30-yard gondola?
EPA has received similar inquiries in the past and has developed a frequent questions database and downloadable PDF document. The question you ask is similar to FQ# 6819: “What type of container is adequate for on-site storage of debris? Must the container be covered and locked? Must it be placed behind a locked barrier?”
Answer: At the conclusion of each work day and at the conclusion of the renovation, waste that has been collected from renovation activities must be stored under containment, in an enclosure, or behind a barrier that prevents release of dust and debris out of the work area and prevents access to dust and debris. Using a covered container is one way to prevent release of dust and debris. Locking the container and placing it behind a locked barrier are good examples of ways to prevent access to the dust and debris.

Is it true that we need sealed containers for “all” the tools we use in containment areas, and another set of tools for regular work and never the twain shall meet? How do we certify the motors of sawzalls, etc., are “clean” once exposed?
The RRP Rule requires the renovation firm to use precautions to ensure that all personnel, tools, and other items are free of dust and debris before leaving the work area. For certain high-dust generating activities, the rule requires the use of tools with HEPA shrouds to minimize dust generation and spreading. The rule does not require contractors to keep separate sets of tools. Also, see, for example, FQ# 6854: “Why are gloves, which are exposed to large amounts of lead dust, not required to be disposed of under the Renovation, Repair and Painting (RRP) Rule?

Answer: The RRP Rule requires the renovation firm to use precautions to ensure that all personnel, tools, and other items are free of dust and debris before leaving the work area. Workers with contaminated clothing can take that contamination home to their own children, and taking contaminated equipment to another jobsite could potentially create a lead hazard at a new site. There are several ways of ensuring that gloves and other clothing are free of dust and debris before leaving the work area. For example, tacky mats may be put down immediately adjacent to the plastic sheeting covering the work area floor to remove dust and debris from the bottom of the workers' shoes as they leave the work area. If workers wear shoe covers, they may remove them as they leave the work area. Clothing and materials may be wet-wiped and/or HEPA-vacuumed before they are removed from the work area. While the rule does not specifically address gloves, if they are contaminated with lead dust or debris that cannot be removed, EPA recommends that they not be removed from the work site during the job and that they be disposed of as part of final cleanup.

The EPA seems to be projecting very unrealistic estimates in terms of how much these practices will cost—especially after we try to mark it up and pass it along to the homeowner. This is not to mention the bone-crushing fines for any deviations from the “rules,” against which we cannot insure and which we mostly can’t do. To be “self-insured” and to assume or pass on that risk are unrealistic.
While developing the RRP rule, EPA conducted an extensive economic analysis. For a variety of typical renovation jobs, EPA estimated an absolute cost, which is the cost of complying with the lead-safe work practices required by the rule if a renovator does not already use any of these practices. However, EPA heard from the industry that renovators were already using many of the lead-safe work practices required by the rule, or were using work practices that required a similar amount of effort. Based on this input, EPA estimated an average incremental cost of each lead-safe work practice required by the rule, taking into consideration the work practices that renovators were already using. For typical jobs in single-family homes, EPA estimated that the average absolute costs to comply with the rule range from $35 to $376, depending on the size and nature of the job. The average incremental costs of complying with the rule range from $8 to $124. EPA has estimated that the additional costs associated with typical window replacement jobs involving up to 12 windows are within this range. In addition, becoming Lead-safe Certified can be a useful tool to secure more projects as consumers look for firms that are following these important safety regulations. EPA’s economic analysis indicated that the requirements of the rule are not excessive or overly burdensome in light of the importance of avoiding the potentially severe consequences of exposure to lead-based paint hazards.

The ruling has also made tradesmen “target defendants.” Even one maximum fine will end a tradesman’s career forever. Is that really the intent?
The best way for small businesses and workers to avoid paying fines is to simply get trained in lead-safe work practices, become certified, and follow the requirements of the Rule. To that end, EPA’s initial focus is on compliance assistance: promoting awareness of the Rule, helping companies to understand the Rule’s requirements, and encouraging firms and individuals to become EPA certified and trained. EPA will enforce the rule by responding to tips and complaints and making sure firms are certified. Firms who fail to get trained and certified could face business risks for their companies and health risks for their employees and clients. Congress established enforcement requirements in the Toxic Substances Control Act, and the statute provides that any person who violates a requirement is liable for a civil penalty not to exceed $37,500 for each violation. In assigning a penalty amount, however, EPA has some discretion and will take into account the nature, circumstances, extent, and gravity of each violation. EPA must also take into account the effect on the violator's ability to continue to do business, and the violator's history of violations and degree of culpability. With some very limited exceptions, EPA also seeks to eliminate any economic benefit a violator may have gained from its violations. EPA has developed a penalty policy which will provide guidance to the Regions on how to apply the penalty factors from TSCA to the lead RRP rule.

In general, contractors understand that it is important to protect themselves and their clients from hazards associated with lead-based paint. However, some expressed concern about their ability to comply with the rule and get training in lead-safe work practices by the rule’s effective date of April 22, 2010. On June 18, 2010, EPA announced that it will offer additional time for renovation firms and workers to obtain the necessary training and certifications to comply with the RRP rule. Until October 1, 2010, EPA will not take enforcement action for violations of the RRP rule's firm certification requirement. For violations of the RRP rule's renovation worker certification requirement, EPA will not enforce against individual renovation workers if the person has applied to enroll in, or has enrolled in, by not later than September 30, 2010, a certified renovator class to train contractors in practices necessary for compliance with the final rule. Renovators must complete the training by December 31, 2010.

Congress directed EPA to issue regulations governing renovations involving lead-based paint in 1994; the lead RRP rule was proposed in 2006 and finalized in 2008. There is scientific evidence linking new cases of childhood lead poisoning to improper home renovation involving lead-based paint where work areas had been insufficiently contained and cleaned. A disturbing number of America's children are still being poisoned by lead-based paint in their homes - leading to learning and behavioral disorders. The rule provides simple, low cost, common-sense steps contractors can take during their work to protect children and families.

EPA recognizes the unique nature of this rule and the challenges that must be taken into account in informing and working with this industry sector, which is made up almost exclusively of small businesses. EPA is continuing efforts to provide support and assistance to states, industry and communities on all aspects of implementing this rule. These efforts include a range of outreach efforts specifically geared toward contractors, as well as homeowners to help build demand for lead-safe firms. The Agency is on course to have enough contractors trained and certified in lead safe work practices to ensure that Americans will be able to find a certified contractor to repair or renovate their homes.

Mark Brady, president of Mark Brady Kitchens,inc in Simsbury, CT, is a 46-year veteran of home remodeling and restoration, who has “lead-free” kids.
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