Comprehensive EPA Lead Paint Rule to Take Effect in April: New Requirements for Broad Range of Renovation Activities

March 29, 2010
by Michael Gross
MGKF Special Alert

In less than one month, the United States Environmental Protection Agency ("EPA") will implement the Renovation, Repair and Painting Rule (the "Rule") (40 C.F.R. Part 745) to address lead-based paint hazards created by renovation, repair and painting activities that disturb lead-based paint in specifically identified "target housing" and "child occupied facilities." The Rule includes new requirements for training renovators, establishes a new certification process for those who disturb painted surfaces where lead paint may be present and imposes new requirements with respect to dust minimization and work practices.

The Rule broadly applies to renovators, electricians, HVAC specialists, plumbers, painters, electricians, drywall installers, insulation installers, siding contractors, tile contractors, wall covering specialists and maintenance staff who disrupt more than six square feet of lead paint in target housing and/or child occupied facilities. The Rule also indicates that potentially affected entities include those engaged in building construction (single family and multi-family), landlords who lease property in target housing or child occupied facilities, and education service providers.

Target housing is defined as pre-1978 homes (excluding certain housing for the elderly unless a child under the age of six years old is known to reside therein, or zero bedroom residences). Child occupied facilities are defined by the Rule as pre-1978 buildings visited regularly by the same child, under the age of six years old, at least two days per week, with each visit lasting a minimum of three hours. Examples of child occupied facilities include day care centers, preschools and kindergarten classrooms. As such, the scope of the Rule covers an enormous number of buildings, particularly in urban and suburban areas that were developed prior to 1978.

New requirements imposed by the Rule include:

  • Distribution of new renovation-specific lead hazard information prior to the commencement of any work through the posting of signs in common areas and the mailing of pamphlets;
  • Training and certification of individual renovators and dust sampling technicians, including a hands-on training component;
  • Specific requirements for lead-based paint training providers, including a new EPA-accreditation process;
  • Project-specific requirements mandating that each renovation project covered by the Rule must be performed or directed by a certified renovator who is responsible for ensuring compliance with the requirements of the Rule, including but not limited to posting warning signs, establishing containment of the work area and the implementation of the new work practice standards;
  • New work practices standards including prohibitions on the use of high heat guns, torches, power sanding and power planning of lead based paint surfaces. (Extensive new requirements also pertain to waste handling, cleaning and the execution of a post-renovation cleaning verification.

New recordkeeping requirements:

  • New requirements for firms engaged in renovation activities mandating that all renovation projects covered by the Rule must be performed by certified firms. A firm seeking to become certified must apply to EPA and attest under penalty of law that it will only use properly trained renovators and that it will follow the work practice and recordkeeping requirements established by the Rule.
  • The Rule contains an exception for renovations in pre-1978 owner-occupied housing where no child under the age of six or pregnant women reside, so long as the housing does not meet the definition of a child occupied facility. To claim the exception, the renovator must obtain a signed statement from the owner of the housing to be renovated that he or she resides therein, that no children under the age of six or pregnant women live therein, that the housing is not a child occupied facility, and that the owner understands that the renovation firm will not be required to follow the work practices established by the Rule. This exception statement must be obtained by the renovator prior to the initiation of any applicable work. This exception is not applicable to rental housing. The Rule also makes clear that homeowners are able to perform renovations to their own homes outside the scope of the Rule. Certain minor maintenance activities are also excluded from the Rule, even where the potential for lead-based paint surfaces exist.

Failure to follow the Rule could result in the risk of governmental fines, civil liability and potential litigation. Accordingly, potentially covered parties including contractors, developers, landlords, education providers, real estate investors and owners need to carefully understand the nuances of these extensive regulations and potentially applicable exceptions which take effect on April 22, 2010. For more information regarding the Rule, its requirements, please contact Michael Gross at mgross@mgkflaw.com or Michael Meloy at mmeloy@mgkflaw.com, or any of the other professionals with whom you work at the firm.