EPA’s Lead Based Paint Toxic Substances Control Act

Co-Author:  Doug Barber

Don’t Paint Yourself into a Corner – The “Toxic Substances Control Act”

You may have heard that EPA has some new rules for lead based paint (LBP). The rules passed in 2008 and became effective April 22, 2010. Here is our overview of the law from the perspective of Attorney (Oliver), Realtor®, and Certified Contractor (Doug).

Target Property. What is covered? Property where a repair (painting, renovation, fix and flip) creates a hazard in affected housing and child-occupied commercial facilities. That means houses, day care centers. It will cover your personal residence also.

Residential. The rule generally applies to renovation (remodel, repair) of any housing constructed prior to 1978 (for which a building permit was issued prior to 1978).

Commercial. It also applies to a public/commercial facility of similar date where children are present on a regular basis (e.g., school or day care facility), and spells out what that means.

Exemptions to the Rule include: (don’t guess – check to be sure)

  1. Repair/maintenance work where the disturbed area is no larger than 6 sq. ft. of interior painted surface, or 20 sq. ft. of exterior surface.
  2. A certification that the work area is free of lead-based paint (as determined using an EPA certified lead tester, or EPA recognized test kit. The kits they sell at Home Depot & Lowes do not qualify). To my knowledge there is also no EPA approved test kit for lead in sheetrock, so workers must assume lead exists in painted drywall in target properties, unless they pay an EPA “certified lead tester” (different from a renovator) to certify that there is no lead (often using an X-Ray Fluorescence analyzer, called an XRF).
  3. Renovations by an owner to their own residence. This assumes that the owner is doing the work, not having it done by a property manager or contractor “friend.” So if you paint the room, ok. If your brother-in-law helps, not ok.
  4. Some housing may be exempt if it is shown that no child under the age of 6 or pregnant woman resides or regularly visits there.

Who is regulated? General and specialty contractors that may disturb the requisite amount of LBP surface (plumbing, painting, HVAC, electrical, finish carpentry, drywall, insulation, siding, tile, glass and glazing, as well as others). General contractors would be wise to verify compliance by their subs by obtaining a copy of their certification. Property owners and property managers will likely be deemed responsible for compliance also.

Cost? Owners and managers of affected properties will probably want to have competitive bids made before hiring contractors/subs, and will want to use only certified vendors (I can assure you that if a vendor does not know about this regulation, his bid will be less than one who complies). Since some vendors may decline the work rather than get certified, certified vendors can reasonably be expected to charge more both for the additional time and materials required, but also as a return on their certification investment.

What contractors (could be non-owner friends) must do:

  1. Be certified if they are performing prescribed work on target properties;
  2. Perform such work pursuant to EPA prescribed methods (containment, personal protective gear, cleanup, etc.); and
  3. Provide warnings to let people know of the potential hazards.

More detail for Contractors. The rule requires that any non-exempt person doing renovation on target properties must obtain certification showing that they are trained in the use of lead safe work practices and that they will follow specific work practices when performing the renovation. What this means to the contractor/sub is:

  • (a) your company must also receive EPA certification;
  • (b) a certified renovator must be assigned to each renovation of a covered facility;
  • (c) all persons performing work on the project must receive on-the-job training by a certified renovator;
  • (d) all renovations must be performed in accordance with the EPA work practice standards related to lead-based paint;
  • (e) you must provide the owner and occupants of the property with an EPA pamphlet advising them of the lead hazards associated with renovation and obtain a signed certificate of receipt; and
  • (f) you must keep records of compliance on all projects.

Enforcement and Liability: As with OSHA, EPA inspectors can come to the site and inspect your documentation and procedures. If non-compliant, they can order work stoppage and issue fines (they are big, as in put-you-out-of-business big-more than $40,000). If someone is injured due to LBP dust exposure from a repair/renovation, the contractor may be liable for personal injuries for failure to comply with the law. I am not sure whether the owner is liable or not (might be if knowingly has noncompliant work done). It may also be advisable for owners and property managers to ensure that home improvement contracts contain provisions dealing with LBP hazards. Contractors may want indemnification language included. Check with your insurance company to determine whether failure to comply may let the insurance company off the hook for liability claims.

How to Get Certified? Training programs will be approved by the EPA, and can be found through trade associations or on the internet. Uncertified people can’t perform nonexempt renovations to affected properties. Certifications must be renewed every five years. Doug got certified through Safe Objectives, Inc. The class was $200 and the EPA certification for the construction company was $300. Firm certification takes up to 90 days, so don’t delay if this applies to you.

Resources. View the rule: Environmental Protection Agency 40 CFR Part 745 – Lead; Renovation, Repair, and Painting Program.

Information and sample checklists at Environmental Protection Agency – Lead in Paint, Dust, and Soil – Information.

Disclaimer — Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.

OLIVER E. FRASCONA