New Lead Safety Rules Take Effect

Monday, May 3, 2010 - 01:00

On April 22, 2010, new federal lead-based paint regulations that govern renovations of housing constructed prior to 1978 and facilities occupied by children under the age of six became effective. The regulations were promulgated by the United States Environmental Protection Agency (EPA) pursuant to the Toxic Substances Control Act. The new regulations require that all renovations performed on certain types of housing, except do-it-yourself renovations, be performed by certified renovation firms. These certified renovation firms must perform renovations in accordance with specific enumerated work practice standards and provide owners and occupants with information on lead-based paint hazards before renovations begin. The regulations also require certified renovation firms to comply with recordkeeping and reporting requirements, and contain provisions for EPA and certified inspectors to ensure that certified renovation firms comply with the regulations, as well as sanctions to enforce these requirements.

The new regulations apply to "target housing" and "child-occupied facilities." Target housing is defined as any housing constructed prior to 1978. The rule excludes housing for the elderly or persons with disabilities or any 0-bedroom dwelling, such as studio and efficiency apartments. A child-occupied facility is defined as a building, or portion of a building, constructed prior to 1978, that is visited regularly by the same child who is under age six. Examples of child-occupied facilities include day care centers, preschools and kindergarten classrooms. "Renovation" means the modification of any existing structure, or portion of a structure, that results in the disturbance of a painted surface, unless that activity is performed as part of a lead-based paint abatement.

The regulations apply only if the renovation is performed "for compensation." The regulations exclude minor repair and maintenance activities that disturb no more than six square feet of painted surface per room for interiors, or no more than twenty square feet of painted surface for exteriors; renovations that only affect components that have been tested and are free of lead-based paint; renovations in target housing that is owner-occupied and that is not occupied by a child or pregnant woman; and emergency renovations.

The regulations specify the type of information that must be provided to owners and occupants. For example, before renovations begin, the certified renovation firm must provide the owner of the unit with an informational pamphlet describing the hazards of lead-based paint. The certified renovation firm also must either provide occupants of affected units with the pamphlet, or post informational signs while the renovation is ongoing.

The regulations enumerate several work practice standards. For example, the certified renovation firm must take precautions to isolate the work area in such a manner that prevents dust and debris from leaving the work area while the renovation is being performed. For interior renovations, this includes covering all doors, ducts, flooring, furniture and rugs. All personnel, tools, and other items must be free of dust and debris before leaving the work area. For exterior renovations, all doors and windows within 20 feet of the renovation must be closed. In certain situations, the certified renovation firm must take extra precautions in containing the work area to ensure that dust and debris from the renovation does not contaminate other buildings or other areas of the property or migrate to adjacent properties. Certain practices, including open-flame burning or torching of lead-based paint or using high speed sanding machines, are prohibited or restricted. Waste from renovation activities also must be handled in a manner that prevents releases of dust and debris whenever the waste is being stored temporarily in the work area or being transported away. After the renovation is completed, the certified renovation firm must comply with strict requirements to ensure that the work area is deemed "clean."

Recordkeeping requirements provide that the certified renovation firm must keep records for three years following the completion of the renovation, including determinations that the regulations do not apply (if any), records of notification, and documentation of compliance with the regulations. The regulations also provide for enforcement and inspections by EPA and certified inspectors. Failure to comply with the regulations may subject violators to criminal sanctions and/or civil fines of up to $37,500 per day for each violation.

EPA's new regulations complement New York City's lead-based paint law, which requires every owner of a multiple dwelling constructed prior to 1960 to conduct annual investigations of dwelling units where children under age six reside and to remediate any lead hazards. Unlike New York City's lead-based paint law, EPA's new regulations contain no exemption for condominium and cooperative housing.

EPA's new regulations impose significant obligations on a whole range of individuals, from day laborers to property maintenance staff to master craftsmen, and careful scrutiny is required to determine whether compliance with the regulations is necessary.

Please email the authors at cwarren@kramerlevin.com, kmintzer@kramerlevin.com or cdaggan@kramerlevin.comwith questions about this article.