Understanding EPA’s New
Renovation, Repair and Painting Rule:
Now
is the Time to Prepare for Compliance
Baltimore Maryland
This article appeared in the July/August 2009 issue of
the Journal of Property Management, a publication of the Institute of
Real Estate Management
Last year, the US Environmental Protection Agency published its Renovation, Repair and Painting Rule in the Federal Register. This new Rule, which becomes fully effective on April 22, 2010, is the last major federal initiative to come out of the Residential Lead-Based Paint Hazard Reduction Act of 1992, also known as Title X. Congress originally directed EPA to promulgate a regulation governing renovations in pre-1978 housing by 1996. However, years of field research and demonstrations, meetings with and commentary from affected stakeholders, and internal agency debate on how to address certain difficult issues delayed finalization of the regulation by 12 years.
The Rule will impact
a substantial number of firms and individuals, including professional
residential real estate managers and residential rental property owners, and
create new regulatory requirements with which they must comply. In the first year alone, EPA estimates that
approximately 8.4 million renovation events will be impacted by the Rule's
requirements. EPA also estimates that
this number will be reduced almost in half as more and more pre-1978 housing
units are tested and found to be lead-based paint free. The intent of the Rule is to “do no harm,” not
to abate preexisting lead-based paint hazards.
With less than one
year remaining before the Rule becomes enforceable, now is the time to gather
information, assess your responsibilities, strategize, take action and be
prepared to meet the Rule’s requirements.
The Rule applies to all "renovations" performed
for "compensation" in pre-1978 “target housing” and in
"child-occupied facilities."
The Rule’s requirements are generally triggered when paint (including
shellac, stain and varnish), which has not been certified as being
lead-free, is disturbed by any renovation, repair or painting project. Owners
and occupants of target housing and child-occupied facilities must receive
information on lead-based paint hazards before these projects can begin. Finally, certain lead-safe work practice
standards must be met during the work and a “cleaning verification” must be
performed before the work area can be reoccupied.
“Firms” performing
these renovations must submit an application and fee to become EPA
certified. Further, individuals who work
for Certified Renovation
Firms must be properly trained and EPA certified as "Renovators"
or be trained and supervised on the job by Certified Renovators. EPA conservatively estimates that 210,000
organizations will apply to become Certified Renovation Firms
and EPA-accredited training providers will train 235,000 individuals as Certified Renovators within the
first year that the Rule is in effect.
Key Rule definitions include the following:
· “Target housing” means housing constructed prior to 1978 unless it is specifically designed, constructed and/or designated for the elderly or for persons with disabilities (unless a child under age six resides there or is expected to reside there), or if it is a zero-bedroom dwelling.
· A “child-occupied facility” is that which was constructed prior to 1978 and which is 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 total at least 60 hours.
· “Renovation” means “modification of any existing structure, or a portion thereof, that results in the disturbance of painted surfaces, unless that activity is performed as part of an abatement.” Renovation can include removal, modification or repair of painted surfaces or building components, weatherization projects, and converting a building or a portion of a building into target housing or a child-occupied facility.
· “Compensation” means pay for work performed by contractors, wages paid to employees, and rent.
· “Firm” means a company, partnership, corporation, association, sole proprietorship or individual, or other business entity; a Federal, State, Tribal, or local government agency; or a nonprofit organization. Firms can include a myriad of organizations that perform “renovations for compensation,” such as trade contractors, painters, third-party property management companies, multifamily apartment complex owners, and public housing authorities.
Renovation, repair and painting projects that will only disturb surfaces and building components that have been tested and found to be free of lead-based paint are excluded from the Rule. There are other exclusions (complete and partial) in the Rule that may apply:
· Activities that disturb less than six square feet of painted surfaces (includes paint, shellac, stain or varnish) per interior room.
· Activities that disturb less than 20 square feet of painted surfaces (includes paint, shellac, stain or varnish) per exterior side.
· Abatement work, which is intended to permanently eliminate lead-based paint hazards.
· Emergency renovations necessitated by sudden and unexpected events, which are required to address immediate human safety or health hazards or to avoid significant damage to equipment or other property. These emergency renovations are exempt from the Rule’s information distribution, warning sign posting, containment, and waste handling, training and certification requirements. However, the Rule’s cleaning, “cleaning verification” and recordkeeping requirements will still apply.
When any work involves window replacement, demolition of painted surfaces and/or building components, or use of “prohibited practices,” such as machine sanding, and the surface or building component has not been tested or otherwise determined to be free of lead-based paint, the above exclusions do not apply.
Beginning on October 22, 2009, any entities that renovate, repair or paint target housing or child occupied facilities must submit an application, including a proposed $300 fee, to EPA in order to become a Certified Renovation Firm. Firm certification is good for five years.
The Rule requires that Certified Renovation Firms:
· Fully comply with applicable Rule requirements.
· Ensure that all personnel are either Certified Renovators or have received on-the-job training from a Certified Renovator.
· Meet pre-renovation education requirements before the renovation, repair or painting project begins.
· Assign at least one Certified Renovator to each renovation, repair and painting project.
· Ensure that contractors and subcontractors working on renovation, repair and painting projects are also Certified Renovation Firms meeting the same requirements.
· Ensure that lead-safe work practice standards and “cleaning verification” are followed on each renovation, repair and painting project.
· Meet recordkeeping requirements, including maintaining renovation, repair and painting project records for at least three years.
The Rule requires that Certified Renovators:
· Individually perform the renovation, repair or painting project and train and direct the work of any other uncertified workers on the job site.
· Be physically present on the job site or available by telephone at all times during the project.
· Be physically present during job site set-up, including posting warning signs and establishing containment.
· Assure that any dust and debris generated by the work is minimized, contained, controlled and cleaned up as the project proceeds.
· Be physically present during final cleaning of the work area and ensure that waste is properly bagged and disposed of off-site.
· Conduct the “cleaning verification” procedure.
· Prepare required project records.
These requirements may necessitate having each on-site maintenance supervisor and maintenance technician, and all trade contractors’ and subcontractors’ workers (e.g., painters, plasterers, cabinet installers, etc.), trained as Certified Renovators to enable them to work independently, particularly for larger-scale projects.
In the Rule, Certified Renovators have the option of using EPA-recognized test kits in advance of renovation, repair and painting projects to determine if lead-based paint is present on surfaces or building components that will be disturbed by the work. Presently, there are two such kits available for paint testing, but EPA will be evaluating the effectiveness of additional kits by asking the vendors to submit them for review.
As of December 22, 2008, prior to conducting renovation, repair or painting projects, renovators must provide a new EPA booklet, entitled Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools, to the adult residents of an occupied dwelling unit. You must also obtain a signed form acknowledging their receipt of the pamphlet or maintain proof that you mailed the pamphlet or were unsuccessful in attempting to deliver it. If working in common areas of a multifamily property or in child-occupied facilities, you must notify residents or parents/guardians of the children, or post informational signs about the work. Distribution of the pamphlet must be no more than 60 days before the project begins. This is a change from the original 1999 EPA Pre-Renovation Education Rule. Prior to December 22, 2008, renovators were required to provide the same booklet, Protect Your Family From Lead in Your Home, that property managers and rental property owners have been required to provide at issuance of initial and renewal residential leases since promulgation of the EPA/HUD Real Estate Notification and Disclosure Rule in 1996.
During renovation, repair and painting projects, a Certified Renovator must ensure that certain lead-safe work practice standards are met. These include not using prohibited or restricted practices, such as open flame burning or torching, high-speed machine sanding to remove paint unless the tool is equipped with a shroud and exhaust port that can be connected to a HEPA (“high efficiency particulate air” filter) vacuum, and operating a heat gun in excess of 1,100 degrees Fahrenheit. Also, a Certified Renovator must not permit residents to enter the work area or let dust and debris escape from that area. Heavy-duty plastic sheeting sealed at the edges must be used to cover occupants’ belongings and the floors, and extend six feet beyond interior work areas. Also, windows, doors, and HVAC ducts must be closed or sealed off with heavy-duty plastic sheeting. When working on the building exterior, heavy-duty plastic sheeting must extend at least ten feet beyond the work areas. Upon completion of the work, all gross paint chips and debris must be picked up, the plastic sheeting must be HEPA vacuumed, wet misted, folded inward and discarded off-site in heavy-duty plastic garbage bags, and all objects and surfaces in and around the work area must be properly cleaned following a specific cleaning protocol. Walls must be cleaned with a HEPA vacuum or wiped with a damp cloth from the ceiling downward, and all remaining horizontal surfaces and objects must be HEPA vacuumed. These horizontal surfaces must then be wiped with a damp cloth and uncarpeted floors must be mopped.
Finally, the Rule has a “cleaning verification” procedure, which must be performed by the Certified Renovator after final cleaning of the work area surfaces and components. The procedure involves individually wiping floors, countertops and windowsills with commercially available cleaning cloths and then comparing each cloth to a “cleaning verification card,” which EPA will produce and supply to EPA-accredited training providers and to others upon request. Before this procedure can be performed, the Certified Renovator must conduct a visual inspection of the work area and look for visible dust and debris. If any are observed, the work area must be re-cleaned and a visual inspection conducted again. Once the visual inspection is completed, the Certified Renovator can perform the cleaning verification.
Separate wet cleaning cloths are used, respectively, for windowsills and for countertops (if any) within the work area. For floors in the work area, one wet cleaning cloth is used for each 40 square foot section. If the wet cleaning cloth is darker than the cleaning verification card after wiping a particular surface, the Certified Renovator must re-clean that surface and then re-wipe it with a new wet cleaning cloth. If the second wet cleaning cloth is still darker than the cleaning verification card, the Certified Renovator must wait at least one hour and allow that surface to dry completely. Then, the surface is wiped for a final time with a dry electrostatic cleaning cloth, which essentially completes the cleaning verification procedure.
Please note that this procedure does not constitute a clearance examination. However, laboratory analysis of dust wipe samples obtained by an independent professional, including an EPA-certified Dust Sampling Technician or an EPA or state-certified Lead Paint Inspector or Lead Paint Risk Assessor, is an option when a firm is required by contract or by another Federal, state or local regulation to clean the work area until it passes a lead dust clearance standard.
There is no cleaning verification procedure following exterior renovation, repair and painting projects. However, after cleaning the exterior work area of any dust and debris, and removing and properly discarding heavy-duty plastic sheeting in heavy-duty plastic garbage bags, the Certified Renovator must conduct a visual inspection. If necessary, a final cleaning is performed when any remaining dust and/or debris are detected, and the visual inspection is repeated. Warning signs may be removed if the Certified Renovator finds no further dust or debris.
It is important to note that, in addition to the EPA Rule, many third-party property managers, multifamily property owners, and others responsible for target housing and child-occupied facilities will have other responsibilities under HUD’s Lead Safe Housing Rule (24 CFR 35) if their apartment communities are Federally assisted. The requirements under HUD’s Rule differ from the EPA Rule. However, both agencies’ rules may potentially apply during renovation, repair and painting projects in Federally assisted properties and units. In these instances, the more stringent set of agency-specific requirements must be met.
Preparing to Comply
To prepare to implement the Rule’s requirements in their apartment communities, third-party property managers, multifamily property owners, and others responsible for target housing and child-occupied facilities should consider the following:
1. First, develop a Compliance Plan:
a. Determine which of your apartment communities were constructed prior to 1978.
b. Determine which of your apartment communities have already been tested and found to be lead-based paint free.
c. Determine which individual surfaces and building components in your apartment communities have already been tested for and found to be lead-based paint free.
d. Identify the untested apartment communities, individual buildings, apartment units, surfaces and/or building components that will be subject to the EPA Rule requirements.
e. Develop or expand your lead-based paint testing program to limit the apartment communities, buildings, apartment units, surfaces and/or building components that will be subject to the EPA Rule requirements.
2. Second, develop a Training strategy:
a. Identify Maintenance Technicians and/or Maintenance Supervisors who work by themselves who will require Certified Renovator training from an EPA-accredited training provider.
b. Identify Maintenance Technicians who, on a project-by-project basis, will work under the direct supervision of a Certified Renovator and who may be eligible to receive on-the-job training from that Certified Renovator. (Caution: These non-certified Maintenance Technicians are limited in the EPA Rule as to the level of work they can perform. Therefore, this training exclusion may not be feasible for the daily activities at most apartment communities.)
c. Identify key contractors and subcontractors that will need to send their employees to Certified Renovator training from an EPA-accredited training provider.
3. Third, develop a Certification strategy:
a. Submit an application and fee to EPA to become a Certified Renovation Firm on or after October 22, 2009.
b. Instruct key contractors and subcontractors to submit applications and fees to EPA to become Certified Renovation Firms on or after October 22, 2009.
4. Fourth, develop Recordkeeping procedures:
a. Establish a procedure to ensure that all affected work orders or paint disturbance activities are only assigned to Certified Renovators.
b. Establish a procedure to track or link the Certified Renovator, non-certified but trained workers, lead-safe work practices, and cleaning verification procedure to each affected work order or paint disturbance activity and maintain related project records for at least three years.
c. Establish a procedure to track or link your contractors’ and subcontractors’ Certified Renovators, non-certified but trained workers, lead-safe work practices, and cleaning verification procedure to each affected work order or paint disturbance activity and maintain related project records for at least three years.
d. Establish a procedure to track firm and Renovator certification renewal dates along with the original accredited training provider, class date, and final exam grade, and maintain related records for at least five years.
By establishing and then implementing a plan to comply with the new EPA Rule, your organization will be well equipped and prepared to meet the new requirements once they become fully effective in April 2010.
Jack Anderson is Vice President of Governmental
Operations at CONNOR, a national real estate due diligence,
environmental assessment and inspection, and training organization
headquartered in Baltimore. The firm,
which was established in 1991, offers practical solutions to stakeholders in
affordable and multi-family housing, large commercial properties, lending
institutions, and other private and public sector organizations. CONNOR
is also a major provider of environmental training services, having trained
over 14,000 individuals since 1996. CONNOR is accredited by EPA to train
the Certified Renovator
Initial and Certified
Renovator Refresher courses in all 50 states, the District of Columbia, the
Indian Tribal Nations and the four US territories.
CONNOR has
worked closely with the multifamily housing community for many years. The firm understands the needs of
professional residential real estate managers and residential rental property
owners when it comes to federal, state and local requirements related to
lead-based paint. To date, CONNOR has conducted lead-based
paint inspections, lead-based paint risk assessments and lead clearance
examinations in over 53,000 housing units.