On July 15, 2011, the Environmental Protection Agency (“EPA”) rejected its own proposed revisions to the Lead Renovation, Repair and Painting Rule (the “RRP Rule”), which went into effect in April 2010. The RRP Rule established accreditation, training, certification, and recordkeeping requirements as well as work practice standards for persons performing renovations for compensation in most pre-1978 housing and child-occupied community facilities, such as day care centers and kindergarten classrooms. In May 2010, as part of a settlement of litigation over post-renovation cleaning requirements in the RRP Rule, EPA proposed revising the RRP Rule to add certain requirements in order to demonstrate that minimal dust-lead levels remained in the work area after the completion of renovations. These proposed requirements were similar to those requirements applicable after lead abatement work has been conducted. As mentioned above, and as discussed in greater detail below, EPA determined that these additional measures were unwarranted.
Dust wipe testing and “clearance” are typically used to demonstrate that minimal dust-lead levels remain in the work area after lead abatement work has been performed. Lead abatement work is specifically performed to permanently eliminate identified lead-based paint and lead-based paint hazards (i.e., lead-based paint chips and lead dust particles). Pursuant to EPA’s Lead-Based Paint Activities Regulations, abatement contractors are required to achieve “clearance” upon completing a lead-based paint abatement project. This means that the abatement contractor must demonstrate, through dust wipe testing, that dust levels remaining in the abatement work area post-abatement are below the clearance levels established by EPA. When EPA promulgated the RRP Rule in 2008, EPA considered including similar requirements for renovation work, but declined to do so. At the time, EPA stated that RRP Rule work practice requirements, including containment, cleaning, and cleaning verification, were effective at minimizing exposure to lead-based paint hazards created by renovation, repair, and painting activities, and thus it was not necessary to require dust wipe testing and clearance.
After the RRP Rule was promulgated, it was challenged in a lawsuit brought by several environmental and children’s health advocacy groups. In August 2009, the lawsuit was settled and, as part of the settlement, EPA agreed to consider whether the RRP Rule should require dust wipe testing and clearance. In May 2010, EPA proposed requiring dust wipe testing for certain types of interior renovations to determine the post-renovation lead content on uncarpeted floors, windowsills, and window troughs in the work area, which would then be provided to the owners and occupants of the renovated property. For jobs involving demolition or removal of plaster through destructive means or removing paint using power sanders or abrasive blasters, dust wipe testing would have to show that dust-lead levels on uncarpeted floors, windowsills, and window troughs in the work area were below regulatory clearance levels.
On July 15, 2011, after receiving public comment on the May 2010 proposed revisions, EPA decided not to require dust wipe testing and clearance for renovations covered by the RRP Rule. Among the reasons for EPA’s decision were the inherent differences between abatement work and renovation work, the costs of dust wipe testing and clearance, the potential delay in re-occupying the work area while awaiting laboratory results, and the likelihood that renovation firms would become liable for pre-existing dust-lead hazards that may have existed separate from the renovation. Furthermore, adding dust wipe testing and clearance would make compliance with the RRP Rule difficult and impractical, thereby increasing the likelihood that renovators would not comply with the RRP Rule and increasing the possibility of exposure to lead-based paint hazards created by renovation activities.
The May 2010 proposed rule contained other minor amendments to the RRP Rule, which were promulgated by EPA on July 15, 2011. These amendments clarify certain portions of the RRP Rule, such as the prohibited or restricted work practice provisions and the requirements for high-efficiency particulate air (“HEPA”) vacuums, and make minor changes to the verification, sampling, accreditation and enforcement provisions of the RRP Rule.
The final rule will become effective on October 4, 2011. Failure to comply with the RRP Rule and its amendments may lead to serious consequences. For example, in October 2010, EPA brought an administrative proceeding against a renovation firm because its workers failed to contain dust and debris generated by lead paint removal activities during a painting project in Maine. While the owner of the renovation firm had completed the training required by the RRP Rule, he did not provide the required training or supervision to his employees to ensure that they followed RRP Rule work practices. EPA alleged that the renovation firm was in violation of the RRP Rule for failing to:
- Obtain required certification as a renovation firm from EPA;
- Post warning signs in the work area;
- Cover the ground in the work area with plastic sheeting to collect falling lead paint debris;
- Contain waste from the renovation activities to prevent releases of dust and debris before the waste was removed from the work area for storage or disposal;
- Prohibit the use of machines that remove lead-based paint through high speed operation without HEPA exhaust controls; and
- Establish and maintain records necessary to demonstrate compliance with the RRP.
The renovation firm faces a maximum penalty of $37,500 per violation per day. Notably, EPA was made aware of the violations via an anonymous tip linking to a video that was posted on YouTube. The video showed workers using power equipment to remove lead paint from an exterior wall of a residential building without using any containment practices for dust and debris. This matter is still pending.