On Oct. 4, 2011, the latest changes to the Environmental Protection Agency’s lead Renovation, Repair and Painting rule (RRP) became effective. Finalized in August, this latest round of changes continues to showcase the EPA's inability to understand its own law or the industry to which the law applies. That said, here is a brief summary of the changes most relevant to the remodeling and home improvement industry.
Proposed dust-wipe sampling. The previously proposed change to RRP that would have required a new dust-wipe clearance test by a new specially licensed worker — to be performed after the lead-safe work practices were completed — has been cancelled. Despite claims by certain trade organizations that this was the result of their lobbying efforts, the fact is that this proposal was dead once the congressional makeup changed last fall. A number of states had warned the EPA against enacting this “super cleaning” requirement as being unnecessary and unduly burdensome, even threatening to support a defunding of the EPA budget in regard to lead paint regulations.
Lead paint lab analysis. Certified Renovators, instead of conducting their own lead paint test, may submit a lead paint chip to an independent laboratory for analysis. The EPA will be providing details on how this may be accomplished, but in the real world this is unlikely to be of much use to most in the industry, given the increased cost, complexity, and time that such a procedure will require when compared to currently available test kits.
Definition of a “painted surface.” The EPA had never defined “painted surface,” and by its plain meaning that term should apply to a surface that has paint on it — as opposed, for example, to a sink or tub or gutter, each of which is not generally painted. Apparently in an effort to close down this possible loophole, the new changes to RRP now state that the term “painted surface” includes any “surface coating.”
Unfortunately, the EPA has failed to explain what is meant by a “surface coating” and this is not as simple as it appears. Is an enameled surface on a gutter or downspout a surface coating? What about an enameled tub being pulled on a liner job? Adding further potential confusion into the mix, the EPA’s Web page reported some time ago that the EPA would not consider the glaze on ceramic tile to be either a surface coating or a painted surface — and therefore ceramic tile is not subject to the RRP rule. Yet any tile manufacturer can tell you that glaze is either sprayed or painted on to a ceramic tile, not unlike the manner in which some types of enamel are applied (see "Tile & Tribulation.").
Vertical containment systems. Vertical containment “or equivalent extra precautions” must be used as part of lead-safe work practices for exterior renovations that affect painted surfaces within 10 feet of the property line. The “or equivalent extra precautions” now means that a contractor is allowed to use almost any type of vertical containment system, from a commercial box structure to scaffolding to a make-shift plastic sheeting lean-to, so long as it contains the dust being created from the renovation. Moreover, as long as the floor containment is tightly sealed to the vertical containment, the floor containment can stop where it meets the vertical containment system, even if that is before the current 6-foot standard for interior floor containment or the 10-foot standard for exterior floor containment.
Finally, of some note for contractors is the news that the EPA has once again changed the content of the lead paint informational pamphlet, now known as “The Lead Safe Certified Guide to Renovate Right.” Having lost count of how many times in the past four years the pamphlet has changed, we will simply note that page 10 has been rewritten to better explain what lead-dust testing is to the consumer. There should be no concern, however, about using up your existing stock of pamphlets before going to the newest version.
—D.S. Berenson is the Washington, D.C., managing partner of Berenson LLP (www.homeimprovementlaw.com), a national law firm specializing in the representation of contractors and the home improvement industry. 703.759.1055 or [email protected]. This article is for informational purposes only and should not be construed as legal advice.