EPA's New Lead-Based Paint Renovation, Repair and Painting Requirements Take Effect

The US Environmental Protection Agency's Lead-Based Paint Renovation, Repair and Painting Program (RRP), originally published in the Federal Register April 22, 2008, became fully effective on April 22, 2010, imposing certain training, certification and work practice requirements on activities that disturb lead-based paint.  The RRP rules are aimed at protecting against the hazards associated with lead-based paint, particularly the risk to children arising from exposure to lead-based paint chips and dust.  These rules apply to housing and child-occupied facilities, as defined in the regulations, that were built before 1978, unless testing demonstrates that the paint being disturbed is not lead-based.  Housing and child-occupied facilities built in 1978 or later are presumed not to have lead-based paint and are therefore not subject to the RRP rules. 

The RRP rules, published by EPA at 40 CFR 745 as part of the implementing regulations for the Toxic Substances Control Act (TSCA), require anyone who performs work for compensation that could disturb paint in facilities subject to the rule to comply with specified training, certification and work practice requirements, in addition to pre-job notification of occupants by distribution of an EPA-prepared pamphlet regarding the hazards of lead-based paint.  Minor repair or maintenance activities that disturb less than 6 square feet of interior paint per room or 20 square feet of exterior paint are generally not subject to the RRP rules.  It is important to realize that renovation activities subject to this rule could include electrical work, plumbing, carpentry, and other work that disturbs painted surfaces. 

Despite an extensive outreach campaign by EPA as the new requirements were phased in, there has still been concern about how quickly EPA could process the flood of applications for certifications that were submitted as the April 22, 2010 deadline drew near.  Nonetheless, EPA chose not to delay the effective dates further and the new rules are now in effect.  Contractors and others who may perform work that is subject to these rules need to assess their operations, facilities and documents to confirm whether they are, in fact, subject to these rules and, if so, take steps to ensure that their operations are in compliance.  Landlords and their employees are subject to these rules if they perform the renovation work themselves, as EPA considers receipt of rent payments to be compensation under these RRP rules.  Even if landlords contract with others to perform the work and are therefore not directly subject to the rules, i.e., do not need to be certified and do not directly implement the safe work practices required by these rules, they should understand whether their properties are subject to these rules so as to ensure that qualified contractors are hired and building occupants are protected from lead hazards.

If you have questions about EPA's new Lead-Based Paint Renovation, Repair and Painting Program or its potential impacts on your operations, please contact John Epperson or John Gregory or any of Farella Braun + Martel LLP's environmental, construction or real estate attorneys at 415.954.4400.