Like all my blog entries, this is intended to be informative but not intended as legal advice in any specific situation; and no one should be relying on any generic regulatory interpretations herein, as a substitute for careful fact-specific evaluation of regulations and guidance.
QUESTIONS TO CONSIDER
Generally, lead in buildings is only an issue for structures built before 1978. In addition to lead based paint (LBP), regulated lead can occasionally also be found in roofing material, door and window cornices (decorative frames) and electrical conduits. However, for purposes of this blog, we will generically refer to the most common issue, which is LBP.
Lead is often perceived by environmental professionals and by contractors as less heavily regulated than asbestos. Nevertheless, the absence in many cases, of applicable EPA or state agency standards is often of minor significance because of the OSHA construction standard at 29 CR §1962.62, which applies to renovation and demolition.
The key questions to consider for Lead in a renovation or demolition scenario construction are similar to those discussed in Part 1 for asbestos:
1) To what extent is a pre-demolition/renovation building survey required and how much material sampling is required or advisable?
2) Is advance notification required if LBP is detected or assumed to be present?
3) To what extent is pre-demolition removal of LBP required in order to comply with applicable regulations?
4) If debris is likely to contain LBP, does that affect disposal requirements or use as fill?
5) If I follow the regulations and available agency guidance, does that protect me from claims by workers or neighbors alleging negligent exposure to lead dust?
OSHA Construction Standard:
Initial Exposure Assessment Requirement:
The first (and often most important) regulatory requirement is to perform an employee exposure assessment in accordance with the regulations. If the results indicate exposure below the action level of 30 ug/m3, 8 hour TWA, (“negative initial determination”) then the only further requirement is to utilize feasible best practices which assure that exposure will be below the OSHA PEL standard of 50 ug/m3 (assuming 8 hours per day). Feasible best housekeeping practices include efforts to minimize lead accumulation on surfaces, and the use of HEPA filtered vacuums or comparable technology to minimize spread of dust from surfaces where lead accumulates. If the exposure assessment shows results above 30, then a variety of specific protective measures and monitoring requirements kick in. Additional housekeeping rules also apply if air monitoring shows results above the PEL of 50 ug/m3. Appendix B of the regulation provides detailed descriptions of these protective measures.
No Requirement for Notification or pre-demolition abatement:
There is no OSHA requirement to notify any government authority if lead is detected. There is also no requirement to do lead “abatement” prior to renovation or demolition.
Basic Features of Exposure Assessment:
An exposure assessment begins with a “Phase I-type” investigation as to whether and where there may be lead present in the material to be disturbed. As-built drawings, renovation records and other owner documentation should be reviewed. Buildings constructed after 1978 are usually assumed not to pose a lead hazard. Where LBP may be present, it can be measured by paint chip samples or by x-ray fluorescence (XRF) scanning. Where presence of lead is confirmed, the next required evaluation must be based on air quality data which is representative of exposure conditions for workers disturbing such material. This requires real time data or an appropriate simulation of the work site, or access to acceptable comparable data generated within the last 12 months.
Interim Protection When Work Begins Before Results of Exposure Assessment
A compliant exposure assessment can be tedious and resource intensive, as well as frustrating for a construction contractor trying to meet a deadline. In some cases, contractors may want or need to start work ahead of the exposure assessment results. The regulations provide that option; but for any of the “high risk” tasks listed in §1962(d)(2), there must be interim protection provided, including respiratory protection, protective clothing, training, and potentially medical surveillance.
Some practical take home points to consider, would be:
-A lead compliance protocol is not something which can be developed “on the fly” during a project. It requires up front evaluation of the presence of lead, and potential air sampling, in order to determine the required extent of worker protection. For contractors not experienced in dealing with lead, it may be necessary to have an experienced consultant put together a compliance plan.
-An owner’s contractual representation as to knowledge of presence of LBP, is not the end of the story—It is just one piece of the investigation that a contractor must carry out.
- If the exposure evaluation indicates expected air levels below 30 ug/cm3 , that does not mean exemption from the standard. Best Feasible Practices are still required if presence of LBP is known or suspected.
-If a contractor wants to begin work ahead of exposure assessment results, it is important that the construction advisory team fully consider some of the consequences of interim protective measures. These include the “optics” of having workers on site in “moon suits”. In some situations, this can attract detrimental attention from neighboring properties and local press.
-A common mistake is the assumption that OSHA standards only apply to material with lead content above 0.5%. In fact, this jurisdictional threshold only applies to EPA regulations under TSCA, as described below; and studies reportedly show that paint with less than 0.5% lead can cause airborne lead levels well in excess of 50 ug/cm3 during activities such as sanding and interior demolition.
EPA TSCA Regulation:
EPA regulation of lead exposure is currently very limited. Section 403 of the Toxic Substances Control Act (TSCA) requires EPA to address LBP hazards related to dust and soil contamination from building renovation or repairs. The current Renovation, Repair and Painting (RRP) regulations at 40 CFR 745 only address homes, and school and child care facilities, frequented by children 6 and under. The program also has a jurisdictional LBP threshold of 0.5% lead by weight, or 1.0 mg/cm2.
The Agency has identified hazard levels for building dust as: 40 ug/ft.2 for floors, 250 ug/ft.2 for interior window sills, and 400 ug/ft.2 for window troughs. The level for outdoor soil is 400 ppm for a play area, and is otherwise 1200 ppm. These standards are obviously conservative and intended for protection of a sensitive population of residents (children); whereas the OSHA standard protects workers. Nevertheless, owners and contractors frequently use the EPA numbers as a benchmark in non-residential projects, since there are no other commonly accepted numbers for building dust.
EPA is also required under the federal TSCA statute to address commercial and public buildings, but they have been slow in developing a program, despite a citizen suit seeking to require completion. In 2014, EPA released a “Framework for Identifying and Evaluating Lead-based paint Hazards from Renovation, Repair and Painting Activities in Public and Commercial Buildings”. This has been the subject of public comments and a peer review process, but proposed regulations have not yet been issued. Given the current political climate at EPA, expanded lead regulations under TSCA would seem highly unlikely in the near future. Nevertheless, this 21-page document is arguably the state of the art with respect to non-residential building LBP removal, and is recommended reading for construction professionals.
Clean Fill Issues:
There is also the question of LBP impact on debris disposal and use of material as fill. PA DEP’s Fill Management Guidance requires one to apply best practices to remove toxic materials (such as leaded paint) from building surfaces before demolition, if the material is to be used as fill. This can be very expensive and objectionable to a sub-contractor who agreed in the contract to “comply with all applicable federal and state regulations” but was not expecting pre-demolition abatement. On the other hand, DEP’s numerical clean fill standard for lead is 450 ppm, which implies that they do not really expect pre-demolition abatement for paint with low levels of lead. In situations like this, it is often a good idea to discuss DEP’s expectations with a case manager ahead of time, in addition to seeking opinions from counsel or environmental consultants. It is also wise to make sure that owner and contractor are on the same page.
Is Regulatory Compliance a Shield Against Common Law Exposure Claims?
Most lead exposure claims arise from young children chewing on paint chips or surfaces of furniture still coated with LBP. Not surprisingly these situations are most common in older and more poorly maintained rental properties. Landlords in such buildings face potential liability. Less frequently, a contractor employee or neighbor might take legal action if they feel that a sloppy demolition project exposed them to dust containing lead. In both of these situations, compliance with existing legal standards is not a barrier to common law claims for negligence—especially since the coverage for lead standards is rather thin, compared to other toxic substances. That should be food for thought before issuing or accepting a contract which just says “comply with all applicable government regulations”.