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Planning to renovate a home built before 1978? New EPA requirements on lead-based paint may slow you down

Lead is a highly toxic metal that can cause adverse health effects in humans, especially children, ranging from cognitive impairment and learning disabilities to seizures and even death. For many years, lead was used in the manufacture of household paint. The U.S. Consumer Product Safety Commission banned the residential use of lead-based paint in 1978. However, more than an estimated 38 million homes in the U.S. that were built before that date still contain some lead-based paint. In fact, two-thirds of all homes built before 1960 are estimated to currently contain lead-based paint.

The Toxic Substances Control Act (TSCA) imposes requirements aimed at reducing the health effects of lead-based paint in “target housing,” which is defined as any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless a child under the age of six resides in the housing) and so-called “zero-bedroom” dwellings, such as efficiency apartments. With respect to the renovation and remodeling of private target housing not supported by federal funding, regulatory requirements under TSCA have, to date, imposed only non-substantive procedural requirements.

Specifically, current regulations promulgated by the Environmental Protection Agency (EPA) pursuant to TSCA require that persons performing paint-disturbing renovation activities in target housing for compensation must provide a lead hazardous

information pamphlet to owners and tenants of the property prior to commencing renovation.

On January 10, 2006, the EPA proposed requirements under TSCA that would substantially expand the regulation of lead-based paint disturbing activities performed in connection with the renovation or remodeling of target housing. As proposed, the requirements would introduce affirmative, substantive lead training, and certification and safe work practice requirements for persons conducting renovation and remodeling activities for compensation. Such persons may include general contractors, special contractors such as painters, plumbers, contractors or electricians, and even property owners or managers of tenant-occupied housing.

The EPA proposes implementation of the requirements in two phases. The initial phase, which would take effect two years after the final rule is promulgated, would apply the rule’s requirements to three groups of target housing: (1) rental and owner-occupied housing built before 1978 in which a child resides and has an elevated blood lead level; (2) rental housing built before 1960; and (3) owner-occupied housing built before 1960 in which a child under the age of six resides.

As drafted, the rule would apply to renovation activities that have the potential to disturb paint. Examples of such activities include plumbing, electrical work, painting and window replacement. The rule would require that to engage in covered renovation activities, renovators be trained in the use of lead safe work practices, that renovators and renovation firms be certified, that providers of renovation training be accredited and that renovators follow certain renovation work practice standards.

Examples of work practice standards set forth in the proposal include:

  • posting signs clearly defining the work areas and warning occupants and other persons not involved in the renovation activities to remain outside of the work area;
  • isolation of the work area so that no visible dust or debris leaves the work area during renovation;
  • containment of waste from renovation activities to prevent releases of dust; and
  • procedures to ensure adequate cleaning of the work area after work is completed.
  • Of Counsel

    As a member of the Environment, Energy & Natural Resources practice group, Kelly's practice at Bingham Greenebaum Doll LLP involves consulting with and representing firm corporate clients with respect to a broad range of state and ...

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