Renovation rule.indd

The US Environmental Protection Administra- 1) pre-1978 units where there is no child tion (EPA) has just issued a new rule on ad- dressing lead-based paint during renovations. Adding to an already complex regulatory re- gime, this new set of rules governing lead-based paint, phases in implementation between June In many instances LL 1 and the new EPA rules 23, 2008 and April 22, 2010. Covering the same specify different ways of dealing with similar ground as the repair and renovation portions of situations. Attempting to fi gure out which set of New York City’s Local Law 1 of 2004 (LL 1), rules apply will often be confusing. For exam- but with different procedures and thresholds for ple coops and condos that are sublet and have a applicability, the new rules create a confusing child under 6 will be governed by LL 1. Those alternate scheme for treating lead-based paint that are sublet without a child under 6 will be during renovation and repair of homes, apart- governed by the new EPA rule. Those that are ments and child-occupied facilities built prior to owner occupied, with or without a child under 1978. This edition of The Inside Edge will focus 6, will be governed by the new EPA rule. Worse on the rule’s application to residential housing the two sets of rules will interact in ways that (leaving aside its impact on child-occupied fa- Overview of New EPA Rules
These rules govern the precautions that must be Unlike prior EPA rules, which governed con- be, nor should it be taken as, legal advice in regard to any repair or renovation work taken by homeowners, owners of rental housing duct for the abatement of lead-based paint pri- which involves the treatment or abatement and contractors with regard to the renovation marily in federally assisted housing1, these new of surfaces containing lead-based paint. and repair of pre-1978 private housing that has, rules now specify notifi cation and work prac- or is assumed to have, lead-based paint with tices for renovations and repairs in all privately based paint or any other similar lead-based coating, you should consult with a qualifi ed a lead content in excess of 1.0 milligram per owned housing even where there is no federal professional to determine which laws, rules square centimeter. They are the last set of rules assistance. The rules defi ne target housing as all mandated by the Residential Lead-Based Paint pre-1978 housing (except elderly and housing Hazard Reduction Act of 1992’s amendments to the Toxic Substances Control Act (TSCA).
The new rules require that repair and renovation Residential property in New York City is also in such buildings be done by trained certifi ed governed by LL 1 as explained in rules issued renovators, employed by EPA certifi ed renova- by the New York City Department of Health tion fi rms, using EPA specifi ed renovation work and Mental Hygiene and the New York City De- practices. After work is done, trained dust sam- partment of Housing Preservation and Develop- pling technicians must ensure that the work area Citizens Housing &
ment. LL 1. According to the EPA, owners and was properly cleaned. These are new categories contractors will have to comply with both the of trained lead-based paint personnel, which the Planning Council
EPA rules and LL 1. Generally speaking, within new rule defi nes, and for which it sets up re- New York City, LL 1 will apply to repairs and quirements for the accreditation of the workers renovations in multiple dwellings where a child profi t policy research organization under 6 is present. dedicated to improving housing and 1. Technically the pre-existing EPA rules apply wherever neighborhood conditions through The new federal rule adds three categories of an owner has the “intent” of abating lead-based paint. As cooperative eff orts of the public and housing that are undergoing repair or renova- a practical matter this almost only occurs where the U.S. tion that had not previously been subject to Department of Housing and Urban Development (HUD) lead-based paint regulation in New York City; requires lead-based paint abatement under HUD rules or where LL 1 requires abatement of lead hazards.
When Do These New Rules Apply?
EPA has created a new category of trained per- The new rules cover pre-1978 housing and child- sonnel called certifi ed renovators who must be occupied facilities where renovation work is formally trained and certifi ed and who supervise done for compensation and the renovation work all lead work. Individual workers need not have will disturb surfaces with lead-based paint. Thus received formal training. However, they must get homeowners, doing work on their own homes, on the job training from a certifi ed renovator and are exempt. If, however a homeowner hires a be supervised by certifi ed renovators to insure contractor, the new rules will apply unless the that they perform work in the required manner. homeowner (who occupies the home) certifi es All such workers must be employed by certifi ed to the contractor that there is no child under 6 renovation fi rms, who are responsible for insur-or pregnant woman present. When landlords use their own workers on any rental property, includ-ing one and two family houses, they are deemed The rules set up a new system for accrediting to be doing work for compensation and thus their programs to train these new workers. In the meantime existing workers trained and/or certi-fi ed as risk assessors, lead paint inspectors, lead Both interior and exterior work are regulated. abatement workers and lead abatement supervi-However a minor repair is exempt. A minor re- sors are “grand fathered” as permissible workers pair is defi ned as disturbing a surface of less than 6 square feet on an interior surface or 20 square feet on an exterior surface. This is different from EPA’s new work procedures are otherwise famil- LL 1 which defi nes a minor repair on an interior iar to those who have worked under the existing surface as 2 square feet. Window replacement is rules. Work areas must be enclosed in plastic, and not a minor repair, regardless of the size of the may not be entered until fi nal clean-up. Objects window.
within the work area must either be removed or sealed in plastic. Safe work procedures apply in As with the current EPA rules on federally assist- the interior of units as well as the public areas. ed housing, surfaces that are free of lead-based Modifi ed procedures apply to the exteriors of paint are exempt from the rule. However the new rules provide for a new method of determining whether a surface has lead-based paint. EPA now Clean Up and Verifi cation
authorizes the use of test kits that involve an on The clean up process follows procedures set forth site chemical test for the presence of lead-based in prior rules including the careful removal of paint. While the new rule notes that no such test plastic coverings, wet mopping, and HEPA (high kits currently exist that fully meet their stan- effi ciency particulate air) vacuuming of carpets dards, EPA believes they will be available by and fabric covered furniture.
April 2010 when that part of the rule goes into effect. EPA has temporarily authorized the use The most dramatic change in these rules is clean of currently existing test kits such as the Lead up verifi cation. Under pre-existing rules and un-Check® test kit2. EPA also authorizes a certifi ed der LL 1, clean up verifi cation must be performed renovator (see below), using a test kit, to make by a third party tester who performs a dust wipe the determination rather than requiring that a cer- sample that must be sent to a lab for analysis. tifi ed risk assessor or lead-based paint inspector Results take a day or two, and if the test does make the determination as they do under the pre- not meet clearance standards, require that the cleaning and testing process be repeated. Since the work area cannot be occupied until it passes Work Procedures
clearance, re-occupancy of the work area by the The rule prohibits the use of dust generating tech- occupants can be delayed. As a result moderate niques in renovation. This includes the use of: rehabilitation has become diffi cult and expensive in New York City under LL 1, often forcing re- location of tenants who are usually reluctant to 2) power sanding, grinding, planing, needle Unlike those prior federal rules, and LL 1, the “third party dust wipe with laboratory analysis” has been replaced by the white glove test (a/k/a In another confl ict with LL 1, EPA allows dry the Swiffer Wet Jet test). This new process allows sanding of surfaces by hand, while LL 1 prohib- residents to return to the work area quickly after its any dry sanding and requires that all sanding completion, rather than waiting a day or two for a of lead-based painted surfaces be wet sanding.
lab analysis of a dust wipe. A certifi ed renovator conducts the cleaning verifi cation. This person need not be a third party, and will typically be the 2. The temporarily authorized test kits tend to give more same employee of the certifi ed fi rm who super- false positive results than EPA’s standard for the fi nal test First the certifi ed renovator must visually con- fi rm that all visible dust and debris has been While these rules are in effect as of June 23, cleaned up. Second, the certifi ed renovator must 2008, different parts go into effect at different conduct the white glove test. For window wells the certifi ed renovator must wipe a wet com- June 23, 2008:
mercial cleaning cloth across the window well. to EPA to administer and enforce training The surface of the cloth is then compared to a standard cleaning verifi cation card. If the cloth is lighter than the cleaning verifi cation card, April 22, 2009:
then the window well has passed clearance. If may apply to the states for accreditation. it is darker than the card, than the window well must be re-cleaned and the white glove test per- October 22, 2009: Renovation fi rms may begin
formed again. If it fails again, then the certifi ed renovator waits for the window well to dry and April 22, 2010:
then wipes again using a dry cleaning cloth. At housing must be done by certifi ed fi rms, this point the window well has passed clearance. using trained renovators, following supervi- (N.B. -you do not need to compare the cleaning Floors and counter tops are done in a similar Which Rules Apply to Me?
manner under the new rule. Floors are divided While there are many things to applaud in these into 40 square foot sections and each section rules, such as simplifi ed training and faster re- must separately achieve clearance. Floors must occupancy, they add another set of differing be wiped with a device “with a long handle and procedures to overlapping and sometimes con- a head to which the cloth is attached” (this de- tradictory state and local provisions on treating scribes a Swiffer Wet Jet® or one of its competi- lead-based paint. The general theory of these tors). The procedures are otherwise the same as rules is that more restrictive state and local laws the window well procedure described above. will not be overridden by the federal rules.
Notifi cation and Record Keeping
If you work in New York City, your work will Needless to say, the certifi ed renovation fi rm mostly be governed by LL 1 if you are doing must keep records of all the procedures speci- work in a child-occupied unit in a multiple fi ed above. It also must keep track of the various dwelling. If you are doing work in a pre-1978 notifi cations required by the new rules. The pre- housing unit without a child, in a coop or a con- viously existing requirement for private renova- do without a child, or in a one or two family tion and repair was that the resident of the unit house, the new federal rules will likely govern. receive the EPA pamphlet Protect Your Family from Lead in Your Home. After December 22, Due to a series of last minute compromises, the 2008 that pamphlet will be discontinued and rules themselves will require continuing clarifi - renovators must provide EPA’s new pamphlet cation. EPA has formed a working group on the Renovate Right: Important Lead Hazard Infor- rules which will issue clarifi cations as issues mation for Families, Child Care Providers and arise. These clarifi cations, the rule itself and ad- ditional materials can be found at the EPA web site,
The certifi ed renovation fi rm is required to de- Citizens Housing &
liver the pamphlet to the occupant of the dwell- Frequently, however the question as to which rules apply will only be resolved through a case Planning Council
ing unit not more than 60 days prior to com-mencement of the work. The fi rm must obtain by case analysis. Confusion will reign until state a written acknowledgement of the delivery of and local jurisdictions bring their laws and rules the pamphlet or certify that it was delivered and into conformity with the federal rules. To allevi-ate this confusion, New York City should repeal the repair and renovation provisions of LL 1 and If the work to be done is in a common area of allow the new EPA rules to govern this issue.
a building, the fi rm must notify the resident of each affected unit and make the pamphlet CHPC will be holding a panel discussion on the available. The fi rm must also post signs where new rules in the fall. If you wish to attend send they are likely to be seen by the occupants of your request to, or check our the building describing the nature and locations web site for updates (
of the work. The posting must also include the pamphlet or info on where to get the pamphlet.


(note: we greatly appreciate the comments and suggestions provided by dr

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