Getting the Lead Out: What You Should Know AboutEPA'S Renovation, Repair andPainting Rule

December 7, 2010

Presenters:Anne E. Viner and Joshua Glazov

The Rule: 40 CFR 745.80 through 745.91

First published in the Federal Register on April 22, 2008, but due to considerable controversy the RRP Rule was not scheduled to become effective (enforceable) until April 22, 2010.

EPA has extended this deadline to December 30, 2010, because of the difficulties with compliance.

The Rule: 40 CFR 745.80 through 745.91 (cont.)

The full text of the RRP Rule; All required forms for compliance; FAQ’s for contractors, owners, tenants; www.epa.gov/lead/pubs/renovation.htm

Purpose of the Rule:

To prevent exposure to lead during common renovation activities.

To reduce incidences of lead poisoning resulting from renovation work.

Purpose of the Rule: (cont)

Some of the Risks Posed by Lead Paint, include: Irreversible nerve/brain damage

in children and adults; Impaired fetal development; High blood pressure; Diminished motor skills; Permanent memory loss; Headaches, dizziness; and Learning disabilities.

Applicability of the Rule

The Rule applies to all “renovations” performed for “compensation” in pre-1978 “target housing” and in “child-occupied facilities.”

Applicability of the Rule (cont.)

Definitions: “Renovation” means “modification of

any existing structure, or a portion thereof, that results in the disturbance of painted surfaces.”

“Compensation” means pay for work performed by contractors, wages paid to employees, and rent.

Applicability of the Rule (cont.)

Definitions: “Target Housing” means all pre-1978

housing “unless specifically designed, constructed or designated for the elderly or persons with disabilities (unless a child under 6 years of age resides there).”

Applicability of the Rule (cont.)

Definitions: “Child-occupied facility” is any pre-

1978 building “visited regularly by the same child under age six on at least two different days within any week so long as each visit is at least three hours, combined weekly visits are at least six hours and combined annual visits are at least 60 hours.”

Applicability of the Rule (cont.)

Single family homes; Multifamily dwellings; Child care facilities (standing alone or

within a multi-use building); and Schools.

Essentially, the Rule is interpreted to apply to:

Exemptions from the Rule’s Requirements

If interior work disturbs less than 6 square feet.

If exterior work disturbs less than 20 square feet.

If the building has been tested lead free by a Certified Lead Assessor, Lead Inspector or Certified Renovator.

Exemptions from the Rule’s Requirements (cont.)

If the work consists of abatement work intended to permanently eliminate lead-based paint hazards (note: abatement activities are well regulated by other federal, state and local laws).

Emergency renovations arising out of sudden and unexpected events are exempted from the Rule's information distribution, containment, training and certification requirements (cleaning verification and recording keeping requirements will still apply).

Exemptions from the Rule’s Requirements (cont.)

Window replacement; Demolition of painted surfaces; and Use of "prohibited practices" such as

machine sanding.

After July 6, 2010, no longer any “opt-out” exclusion. Pending lawsuit against EPA concerning the removal of this exclusion.

** These exemption will NOT apply if the work involves:

The Rule’s Requirements

Resident Information and Education. Training and Certification of Workers. Work Practices. Verification and Record Keeping.

Failure to comply with the Rule's requirements can result in fines as much as $37,500 per day.

Resident Information and Education

Provide the EPA's lead hazard information pamphlet: Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools;

Obtain a signed form acknowledging receipt of the pamphlet from residents; and

Post information signs about the work.

Contractors or Owners must:

Proof of delivery and of unsuccessfulattempts at delivery must be maintained.

Training and Certification

They must attend an EPA-accredited training course.

8-hour course with 2-hours of hands on training.

Workers must be trained in lead-safe work practices.

Training and Certification (cont.)

Firms working in pre-1978 buildings need to be certified.

Certification requires an application and $300 fee be submitted to EPA (or state).

EPA has 90 days to approve/disapprove the application.

Training and Certification (cont.)

One employee of each firm must be certified as a Certified Renovator, who can then train/oversee others in the firm.

Certification is valid for 5 years.

Training and Certification (cont.)

It is estimated that 250,000 organizations will need to become certified, and many more individual workers.

The Rule affects all contractors in the U.S. conducting work on lead-based painted surfaces. Painters, plumbers, electrical workers, general contractors and other types of service providers are affected.

Work Practices

"Prohibited Practices" include: Open-flame burning or torching of

painted surfaces; Machine sanding to remove paint,

unless connected to HEPA vacuum; and

Use of high-heat guns;

Work Practices (cont.)

Containment of disturbed lead, so that residents can't get into the work area and lead dust can't get out.

Final Cleaning requirements, such as HEPA vacuuming, wet wiping of all surfaces, etc.

Waste Disposal requirements, such as wet bagging of debris.

Verification and Record Keeping

Certified Renovator must verify the cleaning at end of work, using EPA procedures.

A complete file on the project must be kept for three years.

Verification and Record Keeping (Cont.)

Records that must be maintained include: Signed verification/other proof of delivery

of pamphlet; Documentation of all work performed and

practices used; Certifications for firm and Certified

Renovator; Proof of worker training.

Model Contract Language

…..including, without limitation, the Environmental Protection Agency’s Lead Paint Renovation Repair and Painting Rule, 40 CFR Part 745,especially Subparts E and L.

Anne E. VinerSpecial Counsel 312.521.2713 aviner@muchshelist.com

Joshua Glazov Principal 312.521.2659 jglazov@muchshelist.com