Berenson LLP Offers an Understanding the Recent LRRP Changes

On October 4, 2011, the latest changes to the EPA’s Lead Renovation, Repair and Painting Rule (LRRP) go effective. Finalized last month, this latest round of changes continues to showcase the inability of the EPA to understand their 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 LRRP 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.

The applicable statement from the EPA was as follows: "After carefully weighing all available science and considering the public comments, EPA has concluded that the current lead-safe work practices and clean up requirements will protect people from lead dust hazards and therefore it is not necessary to impose lead-dust testing or clearance requirements in the Lead Renovation, Repair and Painting rule (LRRP).”

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 the majority of the industry, given the increased cost, complexity, and time that such a procedure will require when compared to the test kits currently available.

What Is a Painted Surface? For a number of years our firm has sought to defend certain clients under EPA audit by asserting that the job(s) in question did not actually involve a “painted surface”. The concept was that the EPA had never defined what a “painted surface” was, and by its plain meaning that term should only apply to a surface that has paint on it (as opposed, for example, to a sink or tub or gutter, which are not generally painted). Apparently in an effort to close down this possible loophole, the new changes to LRRP now state that the term “painted surface” includes any “surface coating”, not just paint.

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 LRRP. 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.

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.

What to do if conditions are too windy to safely construct or maintain a vertical containment system? EPA helpfully advises the contractor to “reschedule the renovation for a more clement day”.

Of some note for contractors is the fact 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 as to 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.

Finally, as an aside, we are often asked by window clients if second- and third-story window replacements mean that a projecting roof outside the window needs to be covered with plastic sheeting? The answer is no, LRRP does not require that roof surfaces be covered by plastic sheeting. Apparently it is OK for lead dust to sit on a roof, to then be blown around or washed onto a lawn.

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