Environmental law intersects virtually every aspect of business. Maureen Brennan's article discusses the EPA's new rule regulating lead-based paint renovation and repair and how it will affect companies and individuals as they invest in, finance, renovate and sell older buildings. The EPA's new lead paint renovation, repair and repainting rule will be phased in over the next two years, but it will start affecting projects much sooner. As with any new program, there are certain to be questions, obstacles and bumps in the road. We hope that this article will make your business planning proceed a bit more smoothly.
NEW RULES: LEAD-BASED PAINT RENOVATION, REPAIR AND PAINTING PROGRAM, 40 CFR 745
by Maureen A. Brennan
Effective June 23, 2008, new federal regulations apply to the following:
Renovation firms may apply for certification beginning on April 22, 2009. Only certified firms can perform renovations in target housing and child-occupied facilities after April 22, 2010. Also after April 22, 2010, only certified renovators can direct lead-based paint work. After April 22, 2010, only work practices for renovation where lead-based paint is involved that are approved in this regulation are permitted. 40 CFR 758.81.
What is "target housing"?
"Target housing" is housing constructed before 1978. "Target housing" is not a "0-bedroom" dwelling. "Target housing" does not include housing for the elderly or persons with disabilities unless a child six years of age or less is expected to live there.
What is a "child-occupied facility"?
A "child-occupied facility" is a building or portion of a building built before 1978. A "child-occupied facility" is visited "regularly by the same child, under six years of age . . . ." 73 Fed. Reg. 21692 (April 22, 2008). To meet the definition, the same child has to visit the building on two different days of the week for at least 3 hours each day for a total of 6 hours at the facility in one week and 60 hours in one year. A "child-occupied facility" can exist in a public building, a commercial building or target housing.
Who needs to comply with these regulations?
Individuals and companies that are paid to renovate target housing and/or child-occupied facilities or to conduct lead-based paint dust sampling are covered by these regulations. Such individuals and companies are likely to include housing contractors; residential remodelers; contractors in individual trades such as plumbing, heating, painting, carpentry, insulating, siding and tiling; lessors; day care providers; schools and trainers of lead-based paint renovators.
Do the new rules contain notification requirements?
Yes. A renovator must notify owners and occupants of target housing and child-occupied facilities undergoing renovation of lead-based paint hazards. Such hazards include "paint lead," "dust lead" and "soil lead." A paint-lead hazard is any damaged or deteriorated lead-based paint, any chewable lead-based painted surface with evidence of teeth marks, or any lead-based paint on a friction surface if there are certain lead-dust levels. Lead dust is a hazard if it is in concentrations greater than 40 micrograms per square foot of floor surface or 250 micrograms per square foot of interior windowsill surface. Lead soil is hazardous if the concentrations exceed 400 parts per million in a paved area or 1200 parts per million in bare soil elsewhere in the yard. 73 Fed. Reg. 21695 (April 22, 2008).
Other than informing owners and occupants of lead-based paint hazards before renovations begin, what is the purpose of the rule?
The purpose of the rule is to ensure that "individuals performing renovations . . . are properly trained; renovators and firms performing these renovations are certified; and [renovation] work practices [that minimize exposure] . . . are followed . . . ." 40 CFR 745. 80.
Although the rules are phased in between now and April 22, 2010, the work practices outlined in 40 CFR 758.85 may be requested by banks and owners. Before the rules are fully in effect, these work practices may become the common law standard against which a renovation is judged. For more information, contact or any other member of Baker Hostetler's Energy & Environmental Practice Team.