Is it Time to Get the Lead Out?

Rick Stryker, P.E.

When confronted by newspapermen who had reported incorrectly, humorist Mark Twain replied, "Reports of my death have been exaggerated." In much the same way, the recent furor over a new federal requirement concerning lead paint has been blown out of proportion for most camps and their operations. This month, we're going to look at some of the imperatives of that regulation, and extract the important elements for you to use when you face the next renovation or painting project.

Before we begin though, it's important to recognize that this is a new regulation, which, like every new rule, is subject to different interpretations by different people. Implementation of rules can vary widely among different regulatory regions and offices. This article is no substitute for a site-specific evaluation and regional interpretation by professionals like an Environmental Protection Agency (EPA) certified renovator, your engineer, and your attorney. Obviously, you'll want your own paid experts (legal and facility) to have these discussions on your behalf. As the old saying goes, "A man who is his own lawyer has a fool for a client . . . ."

The final ruling on this regulation was published in late April in a seventy-ninepage edition of the Federal Register. A quick Google search ("Lead; Renovation, Repair, and Painting Program") will bring up the whole document for your reading pleasure. No kidding. You should really read it, because I think that it will go a long way toward easing your mind and dispelling any rumors that you may have heard. That said, though, I'm happy to share some of the points that I think you may find most useful in a question-and-answer-type format.

"What's in the rule?"

The rule speaks directly to contractors engaged to repair, renovate, or paint "target housing," or a "child-occupied facility." There's a ton of stuff here already, so let's look at the critical pieces in order. First is that the rule is focused on contractors. If you engage a contractor to conduct painting, they MUST ascertain whether the facility where you want work done meets either of those criteria (target housing / child-occupied). They can't take your word for it, but must conclude for themselves as a result of a short interview. You should expect questions like: "Was this building constructed before 1978?" and "Will the spaces being renovated be occupied by the same child under six-years-old, for three hours at a time, at least six hours per week, at least sixty hours per year?" Most traditional residential camps do not have campers under age six, so by and large, the answer will be "no." Where camps do have guests that young and the building is older than 1978, simple testing will be required. The kits themselves are relatively inexpensive, but the tests must be performed by a specially trained technician for them to be valid for recordkeeping. Again, this duty falls on the painting contractor.

"So if it only applies to contractors and I'm doing the work myself (or in house), the rule doesn't apply to me, right?"

The answer is both yes and no. Although the rule and its penalties (a $37,500 fine and one year in jail!) appear to be directed at construction professionals, it contains information which a reasonably prudent person would consider and act upon in making an informed decision. If that language sounds familiar, it's probably because you've heard your attorney use that or similar phrasing to describe situations involving negligence. In short, even if you're doing the renovation yourself, if you accommodate campers under age six, you should follow the procedures required of the contractors to ensure that facility users are safe. The good news here is that the kits are relatively inexpensive (about $50 for sixteen swabs), simple to use, and provide the answer you need almost immediately. Go to the manufacturer's (Leadcheck's®) Web site (www.leadcheck.com) to see a short video of the test being run. They're available for purchase at www.Check4Lead.com. It appears that there are two identical kits available (even the same price) with slightly different instructions. If you're going to properly prepare any surface for painting, it should include sanding or scraping, so you'll probably want to purchase the contractor version. It describes how to check the layers of paint beneath the surface. The "home" version apparently tests only the surface.

"What happens if the test says that there's no lead present?"

Like all things government, there are documentation and records retention requirements (five years) which preserve that enough tests were done correctly and no lead was present.

"So what happens if lead IS present?"

The rule describes the EPA's effort to research what the effects are of several different mechanisms including sanding, scraping, heat guns, and demolition. With that knowledge, they have devised techniques to reduce the amount of and capture the particles which may be broken loose during the work. That's where the training comes into play again. Properly trained and certified individuals, by way of the EPA's Certified Renovator Course, know how to minimize the airborne materials by choosing preparation and capture methods. These can include using HEPA (high efficiency particulate air) filtered vacuums, wet-misting plastic sheets laid to catch the debris, or not using heat guns to loosen the old paint. These are all techniques that you can learn and use. Incidentally, it appears that the whole training process takes eight hours and costs about $250, plus a federal registration fee of about $500. (That fee may be waived if the applying organization is a government entity, nonprofit, or for internal work only.)

Among these other duties, the certified project leader must train the people who will be doing the work and establish the protocols on the site. The leader is responsible for the processes by which the debris is collected, contained, and transported to a landfill. In addition, that person is required to complete post-project swabbing to document that the site is free from lead dust and debris. Finally, he or she is responsible to complete the required paperwork for the archive.

"Ultimately, where is the benefit?"

Whether your clientele includes the under-six-years-old crowd or not, lead dust is a health hazard to everyone. It just so happens that the EPA's only completed definitive studies are of the effects of lead on young children, so they've been identified as the population group most at risk of ingesting a damaging dose. So by using the methods and principles introduced by the EPA Certified Renovator Course, you'll help to ensure that all of your guests leave camp as healthy as they arrived.

"Are there any states to which this rule doesn't apply?"

Again, the answer is both yes and no. As with many federal mandates, there are provisions which allow states to establish more stringent rules and their own certification courses and procedures. For this, Wisconsin, Iowa, North Carolina, Mississippi, Kansas, Rhode Island, Utah, and Oregon have done just that. There are probably substantial differences between the EPA mandate and the state programs, so you'll have to research these through your state government.

All in all, it appears that the regulations will apply to a relatively small group of camps who hire painting contractors. I'd expect that these will probably be mostly day camps, built before 1978 and with enrollment of kids age six and under. Although it's likely to cost a bit more in time and effort (and therefore in dollars), the procedures necessary for safe work, containment, and disposal of the debris are a good practice for anyone renovating or repairing buildings from that era. As a property owner, personnel manager, and host to guests, your organization has an obligation to ensure that everyone is as safe as you can make them. Let "risk" be a planned part of the program experience, not part of a lawsuit.

Finally, we can't overstate how important it is for you to do your own homework by reading and studying the rules yourself. Fill your rolodex with people who can help you ask the right questions of the right people at the right time.

The Environmental Protection Agency (EPA) issued a final ruling that took effect April 22, 2010, regarding lead-based paint hazards created by renovation, repair, and painting activities that disturb lead-based paint in target housing and child-occupied facilities. Because lead-based paint can be harmful to children, we asked Rick Stryker to examine this issue to ensure that camps and youth-serving facilities are protecting all children from leadbased paint poisoning. For more information, please visit ACA's EPA page on our Web site at www.ACAcamps.org/publicpolicy/environmental-protection-agencyruling-lead-based-paint-hazards.

This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with licensed professionals regarding application of relevant state and federal law as well as considerations regarding their specific situation.

Rick Stryker is a professional engineer with a passion for helping camps solve their infrastructure issues through careful planning, crisis management, and education. He can be reached at 570-828-4004 or by e-mail at campfc@ptd.net.

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