EPA Forgoes Third-Party Lead Paint Clearance Testing Requirement

On July 1, the Environmental Protection Agency (EPA) rejected its own proposed rule that would have mandated additional responsibilities for site owners and managers under the Lead Renovation Repair and Painting (RRP) rules, which apply to buildings built before 1978. The proposal would have required on-site maintenance staff and third-party contractors who engage in activities that disturb surfaces that may contain lead to replace simple post-renovation field tests with more expensive clearance testing. According to the proposal, EPA-accredited dust samplers would have had to collect several samples after a renovation and send them to an EPA-accredited lab for lead testing.

Industry groups objected to the proposed rule, mainly on the grounds that mandatory lead-dust testing would increase the cost of renovations in homes covered by RRP regulations. And legislators supported the groups in Washington arguing that the proposed change would encourage owners and contractors to skirt the law and that the delay in obtaining results from a third party were prohibitive enough to cancel the amendment. Sen. James Inhofe, Republican of Oklahoma, said the proposed rule would encourage homeowners to hire uncertified contractors, thereby dodging the regulations and putting building occupants at risk.

RRP Basics

Last July, the RRP rules went into effect. The purpose of the RRP rules are to protect children from lead-based paint hazards in places they frequent. The rules apply to renovators and maintenance professionals that work at sites built before 1978. The RRP rules require contractors and maintenance professionals to be certified; that their employees be trained; and that they follow protective work practice standards. These standards prohibit certain dangerous practices, such as open-flame burning or torching of lead-based paint.

The required work practices also include posting warning signs, restricting occupants from work areas, containing work areas to prevent dust and debris from spreading, conducting a thorough cleanup, and verifying that cleanup was effective.

The amendments of most interest to owners and managers largely apply to the areas of record keeping and reporting.

Resident notification. Site maintenance staff and contractors are now required to provide owners and the occupants of a site being renovated with a copy of records demonstrating compliance with the RRP training and work practice requirements. This information must be delivered along with the final invoice for the renovation, or within 30 days of the completion of the renovation, whichever is earlier. The rule also requires contractors or staff to notify residents before disturbing any painted common areas, by giving them a handout called the “Renovate Right” pamphlet. You can get a copy of the pamphlet by going to the EPA Web site at www.epa.gov/lead/pubs/brochure.htm.

Cleaning verification. The RRP rule doesn't require clearance testing, but it does require cleaning verification once the work area has been cleaned up. Cleaning verification involves wiping horizontal surfaces with a disposable moist cleaning cloth and comparing it to the EPA Cleaning Verification card.

Lead Paint Test Kit's False-Positives

In arguing against the proposed rule, legislators and industry groups also pointed out the need for a more accurate method to determine the presence of lead on various coated surfaces at renovation sites before requiring an additional testing step. The EPA's original estimates to comply with the RRP relied heavily on the availability of low-cost and accurate field tests that owners and managers could use to determine whether a specific repair or renovation job would trigger the rule.

However, the EPA's research found that currently available test kits significantly err on the side of false positives; that is, they wrongly detect lead levels below the legal threshold and result in more jobs being unnecessarily subjected to the costs of the RRP rule. Despite promises to the contrary, the EPA has not been able to certify any widely available accurate test kits.

And this failure has prompted lawmakers to act. Rep. Denny Rehberg, a Montana Republican, offered an amendment to the Department of the Interior's appropriations bill that would restrict EPA funding until the agency “approves a test kit that meets the ‘false positive’ and ‘false negative’ criteria stated in the regulation.” On July 12, the House Appropriations Committee passed the amendment. The next step is for the full House to consider the appropriations bill, and then it must be voted on by the Senate.

Two Significant RRP Changes

Along with rejecting its proposed rule requiring additional clearance testing, the EPA made two other significant changes to the RRP rule. First, the EPA will allow certified renovators to collect their own paint chips that they can then submit to a lab for lead-level testing. This is significant because in light of a negative test, the renovator would not have to perform lead-safe work practices on the component tested.

Second, the EPA is requiring states to carry a minimum enforcement penalty of $5,000 per day per violation. To date, the EPA has granted 12 states authority to administer their own version of the RRP rule that is at least as stringent as the federal version. These states are not required to follow suit on every change the EPA makes to the federal version.

If you own or manage a site in any of these states, you should contact the appropriate state office to ensure compliance with your state's RRP rules before starting a renovation project. The following is a current list of states with their own EPA Authorized State Programs: Alabama, Georgia, Iowa, Kansas, Massachusetts, Mississippi, North Carolina, Oregon, Rhode Island, Utah, Washington, and Wisconsin.