Getting the Lead Out — EPA's New Rules Will Effect Contractors in 2010

By Hafez Daraee

Exposure to lead-based paint is harmful to everyone, but especially to children. Because lead affects a child's brain and developing nervous system, it can reduce a child's cognitive functions and cause behavior problems and learning disabilities. Lead is most commonly found in dust, soil, and paint chips and is especially problematic because its presence cannot be detected by the naked eye. Prior to the 1978 ban, harmful lead-based paints were used in more than 38 million homes across the country.

In response to the magnitude of this problem, the EPA updated its lead-based paint poisoning prevention rules in 2008. These new rules immediately changed the certification requirement for businesses providing lead-based paint-abatement services and next year, EPA's revised rules will directly impact contractors.

Beginning in April 2010, federal law will require all contractors performing renovation or repair or painting projects that disturb lead-based paint in homes, childcare facilities, or schools built prior to 1978 to be certified and to follow very specific work practices to prevent lead contamination.

These new federal laws will apply if the renovation project affects more than 6 square feet of interior space or more than 20 square feet of exterior space. It is the EPA's intent to target homes, schools, and commercial buildings where children are present. Children are considered to be "present" if any child under the age of six visits the same facility on two different days a week, for at least three hours each day or six hours each week, or 60 hours per year.

Most of EPA's rules regarding lead-based paint focus on work-site practices. For example:

• The abatement services can be performed only by certified firms that employ certified employees.
• For interior work:
  • All items within the work space must be either removed or covered with impervious material and sealed in order to eliminate contamination;
  • All ducts and other heating/ventilating openings must be sealed with impervious coverings; and
  • Rugs and other floor coverings must be sealed with impervious coverings.
• For exterior work:
  • Dust from the work area must be contained;
  • All ground areas within the worksite must be covered by impervious material;
• High-speed equipment such as sanders and grinders can be used only if all exhaust air passes through an HEPA filter first; and
• Heat or flame cannot be used to remove lead-based paint.

The EPA's rules, however, do not apply if:

• The facility has been inspected by a certified inspector who has determined that the lead content present does not exceed EPA guidelines;
• The facility has been tested using an EPA-certified test kit and the tests indicate that the lead present does not exceed EPA guidelines; or,
• If an emergency (very narrowly defined by the rules) exists.

Because lead is presumed to be present if the structure was built before 1978, it is up to contractors working on older buildings to either satisfy the EPA requirements or claim one of the three exemptions. Otherwise, contractors may be subject to agency action and civil penalties of up to $25,000 per incident.

The new EPA-certification requirements are added on to the state licensing requirements. If you are a contractor whose business includes renovation or remodeling of older homes and commercial buildings, you should take immediate steps to become EPA-certified. An application will take approximately 90 days to process.

Contractors must jump numerous hurdles in today's environmentally-conscious arena. Working on older structures will become more complex, more time-consuming, and more expensive after April 2010. If you intend to bid on any home, childcare facility, or school project that was initially built prior to 1978, make sure you factor the extra cost of compliance into your bid.

Published Winter 2010

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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