It’s been nearly a year since the EPA’s Lead RRP took complete effect; however, the agency is still making tweaks to the rule, stirring up some questions and frustration. Check out the below blog post from Remodeling Magazine.

On Oct. 4, 2011, the latest changes to the Environmental Protection Agency’s lead Renovation, Repair and Painting rule (RRP) became effective. Finalized in August, this latest round of changes continues to showcase the EPA’s inability to understand its own law or the industry to which the law applies. That said, here is a brief summary of the changes most relevant to the remodeling and home improvement industry.

Proposed dust-wipe sampling. The previously proposed change to RRP that would have required a new dust-wipe clearance test by a new specially licensed worker — to be performed after the lead-safe work practices were completed — has been cancelled. Despite claims by certain trade organizations that this was the result of their lobbying efforts, the fact is that this proposal was dead once the congressional makeup changed last fall. A number of states had warned the EPA against enacting this “super cleaning” requirement as being unnecessary and unduly burdensome, even threatening to support a defunding of the EPA budget in regard to lead paint regulations.

Lead paint lab analysis. Certified Renovators, instead of conducting their own lead paint test, may submit a lead paint chip to an independent laboratory for analysis. The EPA will be providing details on how this may be accomplished, but in the real world this is unlikely to be of much use to most in the industry, given the increased cost, complexity, and time that such a procedure will require when compared to currently available test kits.

Definition of a “painted surface.” The EPA had never defined “painted surface,” and by its plain meaning that term should apply to a surface that has paint on it — as opposed, for example, to a sink or tub or gutter, each of which is not generally painted. Apparently in an effort to close down this possible loophole, the new changes to RRP now state that the term “painted surface” includes any “surface coating.”

Unfortunately, the EPA has failed to explain what is meant by a “surface coating” and this is not as simple as it appears. Is an enameled surface on a gutter or downspout a surface coating? What about an enameled tub being pulled on a liner job? Adding further potential confusion into the mix, the EPA’s Web page reported some time ago that the EPA would not consider the glaze on ceramic tile to be either a surface coating or a painted surface — and therefore ceramic tile is not subject to the RRP rule. Yet any tile manufacturer can tell you that glaze is either sprayed or painted on to a ceramic tile, not unlike the manner in which some types of enamel are applied (see “Tile & Tribulation.”).

Vertical containment systems. Vertical containment “or equivalent extra precautions” must be used as part of lead-safe work practices for exterior renovations that affect painted surfaces within 10 feet of the property line. The “or equivalent extra precautions” now means that a contractor is allowed to use almost any type of vertical containment system, from a commercial box structure to scaffolding to a make-shift plastic sheeting lean-to, so long as it contains the dust being created from the renovation. Moreover, as long as the floor containment is tightly sealed to the vertical containment, the floor containment can stop where it meets the vertical containment system, even if that is before the current 6-foot standard for interior floor containment or the 10-foot standard for exterior floor containment.

Finally, of some note for contractors is the news that the EPA has once again changed the content of the lead paint informational pamphlet, now known as “The Lead Safe Certified Guide to Renovate Right.” Having lost count of how many times in the past four years the pamphlet has changed, we will simply note that page 10 has been rewritten to better explain what lead-dust testing is to the consumer. There should be no concern, however, about using up your existing stock of pamphlets before going to the newest version.

—D.S. Berenson is the Washington, D.C., managing partner of Berenson LLP (www.homeimprovementlaw.com), a national law firm specializing in the representation of contractors and the home improvement industry. 703.759.1055 or info@berensonllp.com. This article is for informational purposes only and should not be construed as legal advice.

1. Dust wipe testing and clearance requirements are not required. The clearance verification process taught in the RRP course stays.

2. Exterior work; Vertical containment must be used when affected surfaces are within 10 feet of the property line. The containment can be set up as close as possible to the disturbed surface so long as all debris are contained in the work area. For example vertical containment can be set up 5 feet from the disturbed surface.

Interior work; Vertical containment from floor to ceiling. Certified Renovators do not have to place the minimum 6 feet of plastic on interior floors. The vertical containment can be set up as close as possible to the disturbed surface so long as all debris are contained in the work area. For example vertical containment can be set up 3 feet from the disturbed surface.

3. Certified Renovators are allowed to collect a paint chip sample and send it to a recognized laboratory for analysis in lieu of using a test kit.

4. Records to be kept on file for five years instead of the former three year requirement.

5. Minimum penalty for states and Tribal programs of $5,000.

6. HEPA vacuums EPA has decided to promulgate the requirement that HEPA vacuums be operated in accordance with manufacturer’s instructions, but not the requirement that compliant vacuums be rated at a MERV value of 17 or higher. More details coming soon!

Word on the street is that contractors, even those who are in compliance, are simply not taking jobs that require them to work on homes built prior to 1978. A paint store owner recently told us “They’re afraid of the liability. Most have good intentions, but can’t afford the fine if they happen to make a mistake.”

We also heard that contractors are being encouraged to tell on other contractors, a rumor we can’t confirm, but just one example of the controversy the rule has generated.

And in the Western “newer” part of the country, the RRP doesn’t even seem to be on people’s radar. “We’ve heard about it, but there’s been no activity,” is the sentiment of another paint retailer we spoke to. “It will move this way eventually, but we’re all waiting for the first big fine.”

On the flip side, the National Organization of Remediators and Mold Inspectors had some positive news:

While agents may be quite busy with the leads provided by tips and anonymous calls, townships have begun to require the certification in order to obtain a permit, insurers are not renewing policies without it, and law firms are buying up web space in anticipation of many lead paint poisoning cases to pursue.

In speaking with EPA agents, the tone is one of common sense. No one is looking to levy a fine against contractors who are making a good faith effort to comply. One might paraphrase to say that agents aren’t going to come measure the poly on the floor, but there had better BE poly to protect the site or you will face a willful violation. The goal should be for contractors to keep their customers and crew safe and healthy. Agents we spoke to also stressed the importance of safety for the purpose of guarding against litigation. The EPA’s current posture is one of educating, not alienating. Agents seemed understanding of the rigors of compliance and eager to help with questions and issues.

So, what have you heard? What’s your opinion? Are you aware of any RRP violations? Are you a contractor affected by the rule? Please share your experiences!

The webinar is available on our website, here: http://www.nilfiskcfm.com/press/webinars/10-10-22/The_ABC_s_of_the_RRP.aspx

“Tell every contractor you know we’re out there enforcing. Tell your friends, your neighbors, contractors you know, suppliers and trades. We are here and we will enforce the new law.”

Wow.  

These words came from a Massacusetts DOS inspector during a Lead RRP inspection at a Rockport, Mass renovation project. (Read the full story  here). The inspector admitted that the state is taking the rule very serious…and we believe him. Ray McCarthy, our Mass sales rep has been very busy taking calls from contractors looking for good HEPA Filter Vacuums, and the above quote certainly explains why.

While still very similar to  the EPA’s 40 CFR, Subpart E, the Mass  Lead Law,  454 CMR 22, does contain some differences. I’m certainly not an expert on the legalese, but Andrea Goldman from the Massachusetts Builders Blog knows what she’s talking about; she has started to outline the key differences on her blog.

Don’t live in Massachusetts?  The EPA has also authorized these states to administer and enforce their own RRP programs.

Wisconsin, Iowa, North Carolina, Mississippi, Kansas, Rhode Island, Utah, and Oregon.

Although this sounds like good news for contractors standing in line to get certified, industrial legal consultants are warning remodelers to proceed with caution. Regardless of the RRP, contractors are still supposed to practice lead-safe work, and can still be held accountable by the homeowner.

More than 80 million homes in the United States contain traces of lead, a deadly element that if exposed to, even in small amounts, can cause serious effects on the brain, nervous, reproduction, cardiovascular, muscular, skeletal, renal, and blood systems. 

Lead is often absorbed through contaminated dust in older buildings and through paint chips easily ingested by small children, putting them at high risk for lead poisoning. In 2008, in order to curb the occurrence of lead-related diseases, the EPA issued 40 CR, Part 745, Subpart E, also known as the Lead RRP.

In effect since April 22, 2010, the new rule requires contractors who perform renovations, repair or painting projects on homes or schools built before 1978- the year lead paint was banned- to be licensed and become “EPA Lead–Safe Certified” in order to prevent lead contamination. 

As a result, the RRP has sparked a fury amongst contractors to hurry up and fulfill the new requirements, or pay a hefty fine; and while there are approximately 240 EPA-accredited training providers across the country offering the certification, which includes 6 hours of class time and a 2-hour hands-on skills assessment, the number of firms seeking certification is well over 200,000.

To help alleviate the long lines of contractors waiting to be certified, the State of Kansas approached ComplyAbility (Work Comp Associates, LLC), a non-profit web-based human resources, regulatory compliance, training, testing and performance tracking software company to develop a program that addressed the Lead RRP requirements.  

For years, ComplyAbility has assisted companies with training on a variety of topics related to state and federal regulations, but they were unaware of the Lead RRP rule when the state’s Building Industry Association contacted them about a year ago.

“Fortunately we have strong web capabilities to support the requirements of the Lead RRP class that are very specific,” said Tom Knight, CEO of Work Comp Associates, LLC. “With only 1 other accredited online Lead RRP in the country, ComplyAbility’s program, www.leadsafeonline.com, offers not just convenience, but the ability for contractors all over the country to take the class on their own schedule.  We can also accommodate an infinite amount of students, as opposed to live classes that easily hit their 20-person capacity.”

As required by the EPA, ComplyAbility’s online training includes 17 different modules, featuring descriptive text, photos and videos along with complete audio. Students have the ability to ask questions of a certified trainer at any time while proceeding through the class and can save their work at any step of the program to return later to complete. 

Each module is followed by a quiz, with a 30-question final exam at the conclusion of the course; however, the certification process doesn’t end there.

Following the online portion of the class, students move on to the mandatory hands-on skills assessment, taught by 10 of ComplyAbility’s certified trainers, available to firms all over the country.

“We’ll often partner with an entity like a lumberyard or paint store that sponsor RRP certification for their customers and staff in order to alleviate some of the costs.  Once they pass the online portion, we’ll make arrangements to travel to their facility or meeting location, anywhere in the U.S,” said Knight.

The main purpose of the 2 hour skills assessment is for students to demonstrate the work practices they learned about during the online course. They will be required to, establish interior and exterior containment, perform interior and exterior final cleaning, properly dispose of waste, and keep dust levels low using a HEPA filter vacuum cleaner.  

“HEPA vacuum cleaners are a critical part of the Lead RRP,” said Knight. “The EPA requires they be used to clean walls, furniture, and even workers before they leave the work area. They can also be used to collect dust at the source of sanding and grinding with vacuum-assisted power tools. We even teach our students about safe disposal of waste by using the vacuum cleaner to remove excess air from plastic bags filled with lead debris.”

ComplyAbility relies on Nilfisk GD930 HEPA Vacuums, which were donated by the industrial vacuum manufacturer to be used during hands-on training. While the EPA does not recommend any HEPA vacuums, they do discourage against the use of lower cost shop-style vacuums retrofitted with a HEPA filter in place of the original basic filter.

The GD930 HEPA Vacuum meets the EPA’s definition of a HEPA vacuum cleaner, capturing 99.97% of particulate, down to and including 0.3 microns. The vacuum is also available with a carpet beater bar floor nozzle, another EPA requirement that agitates carpet fibers to collect embedded lead dust.

Upon conclusion of both the online and hands-on training, ComplyAbility processes all paperwork and issues the firm or individual their EPA Lead-Safe Certification, allowing them to legally renovate older homes and schools. The entire ComplyAbility program is offered for just under $200, which is in line with the national average cost of Lead RRP certification classes, but contractors must also apply for a separate Lead RRP license through the EPA, which carries an additional $300 fee.

So, while the Lead RRP requires contractors to invest in both equipment and training, the cost not to comply can result in fines upwards of $37,500 per violation, per day; not to mention potential private lawsuits brought on by homeowners.  Indeed, initial costs will be a heavy burden for some, but considering the deadly effects of lead poisoning, it’s a small price to pay.

For more information on the EPA’s Lead RRP, visit
www.epa.gov/lead/pubs/renovation.htm.

For information on ComplyAbility’s online training program, visit www.leadsafeonline.com 

 HEPA Vacuums Play Critical Role in Lead RRP

On April 22, 2010, the Environmental Protection Agency’s Lead RRP (40 CFR, Part 745, Subpart E) went into effect. The new rule requires contractors performing renovation, repair, and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 to be certified and follow specific work practices to prevent lead contamination.

Among these required work practices are the use of a HEPA-filtered vacuum cleaner, to minimize dust and thoroughly clean the work area.

According to the rule:

• Walls must be cleaned starting at the ceiling and working down to the floor by either vacuuming with a HEPA vacuum or wiping with a damp cloth.

• Remaining surfaces are to be cleaned by thoroughly vacuuming all remaining surfaces and objects in the work area, including furniture and fixtures, with a HEPA vacuum. The HEPA vacuum must be equipped with a beater bar when vacuuming carpets and rugs.

• The use of machines that remove lead-based paint through high speed operation such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblasting is prohibited unless such machines are used with HEPA exhaust control.

So, what does the EPA mean by a HEPA vacuum cleaner? In 40 CFR 745.83, the EPA states:

“HEPA vacuum means a vacuum cleaner which has been designed with a high efficiency particulate air (HEPA) filter as the last filtration stage. A HEPA filter is a filter that is capable of capturing particles of 0.3 microns with 99.97% efficiency. The vacuum cleaner must be designed so that all the air drawn into the machine is expelled through the HEPA filter with none of the air leaking past it”

For more information on HEPA Vacuum Cleaners for the Lead RRP, visit www.nilfiskcfm.com/vacuum-applications/EPALeadRRP-hepa-vacuum.aspx or call 1-800-645-3475.

Question:
We are located in a town where a majority of the homes are pre- 1940. How do the new lead rules apply to home owners who do their own work?

Unfortunately, the rules do not apply to home owners doing their own work!  Also, the rule does not apply if the work is being done by volunteers.  The rule only applies if the work is being done for compensation. If volunteers are being supervised by a paid supervisor, the rule does apply.

Homeowners have no responsibilities under the new EPA RRP rules.  They can do their own work as they please, but are “encouraged” to follow lead safe practices.  If home owners are considering doing their own work, contractors can suggest they read Lead Paint Safety: A Field Guide for Painting, Home Maintenance, and Renovation Work.  This booklet published by HUD will make them aware of lead hazards and the risks they will take if they do their own work.  It also includes very thorough instructions, for working lead safe, specific to performing a variety of projects.  This booklet may help many homeowners realize they are getting in over their head and should hire a professional.  The booklet might also be a great resource for contractors trying to collect effective and innovative lead safe work practices. 

For more information on the lead RRP, check out http://www.nilfiskcfm.com/vacuum-applications/EPALeadRRP.aspx

So you’ll certainly be hearing more from us on this hot topic.  But for now check out the new webpage, anf if you have any questions regarding the Lead RRP or HEPA vacuums…let us know.