Additional Commentary to “Got Lead?”

Published in the ECHO Journal, June 2010

An article entitled “Got Lead?” which summarized the health effects associated with lead poisoning as well as how lead hazards are created and abated, was published in the May 2010 Echo Journal. The article also briefly described the new Lead Renovation, Repair, and Painting (RRP) law passed by Congress in 2008 and recently promulgated into regulation by the USEPA in April 2010. The intent of this commentary is to expand and clarify how the RRP law will apply to work performed in California because the state has its own lead reduction and control laws and regulations with several elements more stringent than those found in the Federal program. Consequently, homeowners associations (HOAs), contractors, and building owners need to be cognizant of when California lead regulations and policy supersede the criteria set forth in the Federal RRP rule, and vice versa.

A common component of both the Federal and State programs is that when the presence of lead based paint is presumed or known, the work areas must be sectioned off from unaffected areas in order to contain the spread of lead dust. Another common element is the performance of a thorough visual inspection to ensure that visible dust and debris has been properly cleaned prior to removing the containment. However, in addition to the visual inspection, the federal RRP regulations requires a form of a “white-glove” test as part of the cleaning verification process. This additional step requires qualified contractors to wipe affected areas with a clean, white cloth, and qualitatively compare the degree of discoloration, presumably from dust dispersed during work activities, to a color chart produced by the USEPA.

Conversely, one element where the State policy supersedes the RRP regulations is the process for pre-determining the presence of lead paint in potential work areas prior to project initiation. The Federal RRP program allows certified contractors to use colorimetric swabs for making negative lead paint determinations. However, the California Lead Poisoning Prevention Branch (CLPPB) of the Department of Public Health Services does not recognize the validity of the swabs. As a result, in California, this presents only two viable options for pre-testing work area(s) for lead-based paint, 1) have the work area(s) tested for lead by a State certified Inspector/Assessor, or 2) assume the presence of lead based paint without performing third party testing and follow the appropriate containment and cleaning procedures required by the RRP regulations.

Another major regulatory conflict between the Federal and State lead programs concerns how waste material is managed and disposed. Under the Resource Conservation and Recovery Act (RCRA), the Federal hazardous waste control law, lead containing materials generated as a result of renovation and repair activities in residences, are exempt from being classified as a hazardous material and can legally be disposed in municipal and construction & demolition landfills. In contrast, the California Hazardous Waste Control law does not include this exemption. As a result, in California, contractors disposing of debris that contains presumed or known lead based paint have three (legal) options available to them. These options are:

  1. Assume the debris is hazardous and dispose of the material under a hazardous waste manifest into specialized landfills.
  2. Submit a representative sample of the debris, which may include wall board, non-recyclable lumber, and other material in addition to paint, to an environmental laboratory for determination of the total amount of lead in the debris.
  3. Use “generator knowledge” to classify the waste debris as non-hazardous

The first option is the most costly, but least mentally taxing option. The second option is ultimately less costly than the first option, provided the amount of lead in the debris is less than the maximum level set forth under RCRA, but can delay the completion of a project as everyone waits with baited breath for the laboratory results. Debris characterized as non-hazardous in this manner can be disposed of in municipal as well as Construction & Demolition landfills. The third option is likely the most practical approach, but has its own set of risks and liabilities. For example, a residence constructed in the early 1960s, towards the decline of the lead-paint era can be assumed to have one, maybe two coats of lead-paint, if any, with the paint likely diluted to acceptable levels when mixed in with the remainder of the debris. A contractor can then use “generator knowledge” to classify the debris in the first example as non-hazardous. However, one important clarification to make is that the building owner or HOA would be defined as the “generator” of the waste depending on who hired the contractor. Therefore, if a contractor is found to have improperly disposed of hazardous waste, the generator (owner or HOA) could be liable for improper disposal of hazardous wastes, including fines, penalties and additional disposal costs.

As a consultant, we have been contacted by representatives from insurance, restoration and renovation companies as well as HOAs to evaluate the most prudent way to comply with the new RRP regulations. While, on the surface, this task may appear daunting, please keep in mind that these laws exist to protect public health, and that a generally conservative approach is often the most prudent and economical in the long run. For more information regarding the information presented herein, you may contact the CLPPB (1-800-597-523),or the California Department of Toxic Substances Control (1-800-728-6942).

David Block is the principal toxicologist at Block Environmental Services, Inc. in Pleasant Hill, CA, an ECHO member firm.