Client Alert

On March 31, 2008, EPA issued a rule requiring the use of lead-safe practices and other actions aimed at preventing lead exposure during multifamily housing renovation, repair, and painting projects that disturb lead-based paint in pre-1978 housing.

The rule does not apply to minor maintenance or repair activities where less than six square feet of lead-based paint is disturbed in a room or where less then 20 square feet of lead-based paint is disturbed on the exterior. (Window replacement is not minor maintenance or repair and is always subject to the rule.) The rule also does not apply to renovations where it is determined by a certified inspector or risk assessor, or by a certified renovator, using an EPA recognized test kit, that the renovation will not involve lead-based paint.

The rule’s new requirements will be phased in over the next two years.

1. Effective June 23, 2008, Use Renovate Right or Protect Your Family Pamphlets

Beginning June 23, 2008, EPA requires that anyone performing renovation, repair, and painting projects that disturb lead-based paint in pre-1978 housing provide either the new EPA pamphlet, Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools, or the EPA pamphlet that is now being used, Protect Your Family from Lead During Renovation, Repair & Painting, to comply with the existing requirement to provide a lead hazard information pamphlet to the occupants of pre-1978 housing before beginning renovations.

EPA also recommends that anyone performing renovation, repair, and painting projects that disturb lead-based paint in pre-1978 housing (1) read about lead hazard information for renovation, repair and painting activities in the new EPA pamphlet, Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools; (2) read about lead-safe work practices for contractors in the EPA pamphlet, Contractors - Lead Safety During Renovation; and (3) follow those lead-safe work practices, specifically containing the work area, minimizing the dust and cleaning up thoroughly.

2. Effective December 22, 2008, Use Renovate Right Pamphlet and Disclosure Form.

Beginning December 22, 2008, before starting a renovation in multifamily housing built before 1978, the multifamily property owner (or their contractors) must have tenants sign the new EPA Pre-Renovation Disclosure Form, and must provide tenants the EPA pamphlet, Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools.

3. Effective April 22, 2010, Use Certified Renovators and Lead-Safe Work Practices.

Beginning April 22, 2010, all multifamily property owners must use only certified Renovation Firms or individual Certified Renovators to perform renovation, repair, and painting projects that disturb lead-based paint in pre-1978 housing. Renovation Firms (which will include any multifamily property owner or manager performing renovations through its employees) that perform renovation, repairs, and painting jobs in pre-1978 multifamily housing must apply to EPA or a state that has an approved program for certification to perform renovations. Firms will have to apply for re-certification every five years.

Each renovation, repair and painting project subject to the new rule requires certain lead-safe work practices. Renovation Firms must post signs clearly defining the work area and warning occupants and other persons not involved in renovation activities to remain outside of the work area. Before beginning the renovation, the renovation firm must isolate the work area so that no dust or debris leaves the work area while the renovation is being performed. Waste from renovation activities must be contained to prevent releases of dust and debris. After the renovation is complete, the renovation firm must clean the work area and a certified renovator must verify the cleanliness of the work area using a procedure involving disposable cleaning cloths.

Renovation Firms must keep records to demonstrate that it has been certified and its workers have been certified as Renovators or trained on-the-job by Certified Renovators in lead-safe work practices and that it has followed lead-safe work practices on the job. To make recordkeeping easier, Renovation Firms may use the Sample Recordkeeping Checklist that EPA has developed to help contractors comply with the renovation recordkeeping requirements that will take effect in April 2010.

4. Prohibited Practices.

The EPA has prohibited certain work practices for every renovation, repair and painting project in multifamily housing, including minor maintenance or repair jobs otherwise not subject to the requirements of the new rule. Specifically prohibited are: (1) pen flame burning or torching; (2) sanding, grinding, needle gunning, or blasting with power tools and equipment not equipped with a shroud and High Efficiency Particulate Air (HEPA) vacuum attachment; and (3) using a heat gun at temperatures greater than 1100° F.

The EPA publications mentioned above are available in both English and a Spanish translation on the EPA website http://epa.gov/lead/pubs/renovation.htm.

If you have any questions regarding this client alert, please contact John Sweeney via email or via phone at (410) 545-5821, or the Womble Carlyle Multifamily Real Estate attorney with whom you usually work.

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