What Is The Lead Disclosure Rule?

Renovators doing RRP work will be involved with lead testing.  Lead testing for RRP related projects can be done by the certified renovator, a certified lead inspector or certified lead risk assessor.  The type of testing that can be done by each varies, but regardless of who does the testing written reports are required and, by law, certain individuals must be given a copy of those reports if lead is found.  The EPA RRP rule is specific about who must receive test reports if the testing is done for the purposes of an RRP renovation.   

Regardless of the original purpose of testing (RRP or any other purpose), once a reports exists, the Lead Disclosure Rule below dictates who must receive the reports and when in regards to the selling or leasing of a property.  The rule also specifies what documentation must be created and maintained to prove the reports were distributed to the required parties.  Because of the considerations of the Lead Disclosure Rule, I recommend renovators get the property owner's written permission prior to conducting any lead testing.

The following information is from the HUD web site:

Congress passed the Residential Lead-Based Paint Hazard Reduction Act of 1992, also known as Title X, to protect families from exposure to lead from paint, dust, and soil. Section 1018 of this law directed HUD and EPA to require the disclosure of known information on lead-based paint and lead-based paint hazards before the sale or lease of most housing built before 1978.

What is Required?

Before ratification of a contract for housing sale or lease, sellers and landlords must:

• Give an EPA-approved information pamphlet on identifying and controlling lead-based paint hazards ("Protect Your Family From Lead In Your Home" pamphlet, currently available in English, Spanish, Vietnamese, Russian, Arabic and Somali).
• Disclose any known information concerning lead-based paint or lead-based paint hazards. The seller or landlord must also disclose information such as the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces.
• Provide any records and reports on lead-based paint and/or lead-based paint hazards which are available to the seller or landlord (for multi-unit buildings, this requirement includes records and reports concerning common areas and other units, when such information was obtained as a result of a building-wide evaluation).
• Include an attachment to the contract or lease(or language inserted in the lease itself) which includes a Lead Warning Statement and confirms that the seller or landlord has complied with all notification requirements. This attachment is to be provided in the same language used in the rest of the contract. Sellers or landlords, and agents, as well as homebuyers or tenants, must sign and date the attachment.
• Sellers must provide homebuyers a 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. Parties may mutually agree, in writing, to lengthen or shorten the time period for inspection. Homebuyers may waive this inspection opportunity.

Types of Housing Covered?

Most private housing, public housing, Federally owned housing, and housing receiving Federal assistance are affected by this rule.

Effective Dates:

The regulations became effective on September 6, 1996 for transactions involving owners of more than 4 residential dwellings and on December 6, 1996 for transactions involving owners of 1 to 4 residential dwellings.

Recordkeeping:

Sellers and lessors must retain a copy of the disclosures for no less than three years from the date of sale or the date the leasing period begins.

What Can You Do?

If you did not receive the Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards form when you bought or leased pre-1978 housing, contact 1-800-424-LEAD (5323).

According to the HUD web site, this content was current as of March 4, 2008.  Click here to view this information on the HUD website

For Large RRP Remodels; Renovate or Tear Down and Start Over?

Question from an RRPedia User:


“Shawn, We have met a number of times, most recently at the Rings End event, which was great, informative and overwhelming. I'm not sure where to go for the answer to this question and thought maybe you could direct me. We are bidding a sizable remodel and the architect has note for that bidders are to follow RRP guidelines. Its pre-1978, we will be disturbing 75%+ of the existing structure and it is unoccupied. I'm thinking that we don't need to address the tarping and cleanup because of the magnitude and vacancy. If we do then we need to consider a tear down. Any guidance you can give would be appreciated. I'm sure you get this all the time so I understand if you can't get to it. Best regards, Ray Gaines Sr, Gaines Construction Co. Inc.”

Ray:
Thanks for your message. This question has come up several times already from other contractors like you who are trying to do the right thing and interpret the EPA RRP rule correctly.

The fact that the property is unoccupied during the renovation makes no difference regarding whether the EPA RRP rule applies. This is confirmed on the FAQ page of the EPA web site. Because of the removal of the opt-out provision in July of this year, any residential property where people live or will live (referred to as target housing) now requires the lead-safe practices unless the home tests out negative for lead under the EPA guidelines.

Also under the EPA RRP Rule, unless the entire interior of the structure is gutted down to bare wood, with no coated or painted surfaces remaining, the project must be treated as an RRP project and again the work must be done using lead-safe work practices.  A full removal of all exterior finishes however does require the RRP Lead-safe work practices.  Again, this is confirmed on the FAQ page of the EPA web site.  Keep in mind, all documentation requirements apply as well.

As a side note, your message does say the building is pre 1978; however you do not say whether the property was tested for lead.  If it hasn't been tested, one option to the owner would be to test it.  Of course, if there is no lead, the rule would not apply.

The EPA approved test kits sold by LeadCheck are very accurate.  These tests reliably determine the presence or absence of lead.  If you use these tests the owner would know if any lead is present at all.  However, under the RRP Rule, the EPA says the rule exempts renovations that affect only components that a certified lead inspector or certified risk assessor has determined are free of paint or other surface coatings that contain lead equal to or in excess of 1.0 milligrams per square centimeter (mg/cm2) or 0.5% by weight. EPA further explains that the determination that any particular component is free of lead-based paint may be made as part of a lead-based paint inspection of an entire housing unit or building, or on a component-by-component basis.

So, if the property owner wants to know if there is any lead at all, the EPA approved LeadCheck test kits could be used to do so.  If the owner chooses to use the EPA's action level of lead paint amount to determine if the lead-safe practices would be required, then currently the only way to test for amount of lead would be to use a certified lead inspector or certified lead risk assessor.  

One way to think about this might be to relate it to eating fish.  The government often says that if you fish in certain bodies of polluted water, you can safely eat up to so many of the fish you catch without any health concerns.  If the government says you can eat up to 3 fish a year, how safe would you feel eating even one fish?  Using this analogy, how safe might the owner feel having renovations done if there is any lead present at all at their property?

If you have opportunity to interact with the property owner, I suggest you might find you would stand out from the other bidders if you could share what I have written here with the owners.  It is my opinion that the property owners should know the facts, know their options and then make a decision about how to move forward regarding lead at their homes.

NAHB article regarding Lead Test Kits could be misleading for Renovators and Home Owners

In a recent article about their efforts to address challenges for builders and remodelers due to the new EPA RRP rule, the National Association of Home Builders (NAHB) left out some critical information that causes their article to be very misleading to renovators and home owners unfamiliar with specific details about the RRP rule.   In my opinion, the article also does a disservice to the manufacturer of LeadCheck, the only lead test kit currently approved by the EPA for RRP work.  Although I would stress that the NAHB likely didn’t omit the information on purpose, having done so serves to only add to the already existing wide spread confusion about the new rule.

In the August 9, 2010 article, the NAHB sites an announcement by the EPA.   The article states that; “More accurate, inexpensive test kits will not be available anytime soon.  The kits were expected to be ready by next month and were seen as key to keeping the lead paint rule affordable for home owners”.  The NAHB statement is true, but as stated would give renovators and home owners the impression that the current test kits are not accurate. In fact, the current test kits manufactured by Hybrivet Systems, Inc. of Natick Massachusetts have a twenty year plus proven track record of reliable and consistent accuracy. 

Let me explain:

Here is what was missing from the NAHB article and what renovators and home owners should know so they can make their own decisions about lead testing using the LeadCheck test kits.

The LeadCheck test kits reliably determine the presence or absence of lead.  The test is absolute.   If they used these tests the home owner and the renovator would both know if any lead is present at all.  However, under the RRP Rule, the EPA says the rule exempts renovations that affect only components that a certified lead inspector or certified risk assessor has determined are free of paint or other surface coatings that contain lead equal to or in excess of 1.0 milligrams per square centimeter (mg/cm2) or 0.5% by weight.  

In the rule preamble, the EPA stated; “research on the use of currently available kits for testing lead in paint has been published by the National Institute of Standards and Technology (NIST) (Ref. 26). The research indicates that there are test kits on the market that, when used by a trained professional, can reliably determine that regulated lead-based paint is not present by virtue of a negative result.” 

The EPA also stated; “The NIST research on existing test kits shows that existing test kits cannot reliably determine that lead is present in paint only above the statutory levels because the kits are sensitive to lead at levels below the Federal standards that define lead-based paint, and therefore are prone to a large number of false positive results (i.e., a positive result when regulated lead-based paint is, in fact, not present).”

So, if the property owner wants to know if there is any lead at all, the EPA approved LeadCheck test kits could be used to do so.  If the owner chooses to use the EPA's action level of lead paint amount to determine if the lead-safe practices would be required, then currently the only way to test for amount of lead would be to use a certified lead inspector or certified lead risk assessor.   These individuals have and use testing methods that can determine the presence of lead by amount.

Making better decisions about testing:

One way to think about this might be to relate it to eating fish.  The government often says that if you fish in certain bodies of polluted water, you can safely eat up to so many of the fish you catch without any health concerns.  If the government says you can eat up to 3 fish a year, how safe would you feel eating even one fish?  Using this analogy, how safe might the home owner feel having renovations done without using lead-safe work practices if there is any lead at all present at their property?  The choice should be theirs.

If you have opportunity to interact with a property owner, I suggest you might find you would stand out from other renovators the home owner might be considering if you could share what I have written here with the owners.  It is my opinion that the property owners should know the facts, know their options and then make a decision about how to move forward regarding lead at their homes.  If renovators and home owners are under the impression that the current test kits are not accurate, they would be misinformed.

In an announcement by the EPA on Thursday last week, Hybrivet Systems, makers of LeadCheck® Swabs, received confirmation that their test kits will continue to be recognized for use on RRP related work.  The announcement serves to put closure on any rumors or fears that their test kit might not be approved after September of this year.  As of this post, LeadCheck is still the only EPA approved test kit that can be used by a certified renovator to test for the presence of lead on RRP projects.

As discussed in the preamble of the final RRP Rule, EPA desires to have a test kit that will identify whether the amount of lead present on a surface is above or below the federally regulated level of lead in paint.  The presence of lead in amounts less than 1.0 mg/cm2 or 0.5 percent by weight is considered below the action level requiring the use of the RRP work practices.  Lead in amounts equal to or higher than the action level would trigger the RRP requirements. 

Currently, existing tests only identify whether lead is present or not.  In September 2009, EPA accepted applications from four vendors for the evaluation of their lead test kits through EPA's ETV program. The goal was to identify test kits that would not only verify that lead was not present at all, but also would identify the presence of lead or not based on the action level amount.  According to the announcement on the EPA web site; “Because no new kits meet both the false negative and false positive criteria, EPA will continue to recognize the LeadCheck® test kit and the State of Massachusetts lead test kit.”  (The Massachusetts test kit is not commercially available)  One other manufacturer’s test kit will likely be approved after EPA reviews the final report on their kit. EPA anticipates that this test kit will also be recognized as meeting the false negative criterion.

Hybrivet Systems, Inc was founded by Marcia Stone, PhD, in 1987.   Marcia Stone created LeadCheck® Swabs 23 years ago after learning of children suffering from lead poisoning from exposure in their own homes. She combined years of scientific knowledge and experience to create an instant read lead detection tool to help protect families. 

I visited with the Hybrivet Systems team on July 22^ndat their place of business in Natick MA to learn more about the company and their LeadCheck® Swabs.   I was very impressed with the company and its product.  I was even more impressed by the personal desire and mission Marcia Stone has to help protect the health and well being of families and especially children.  According to Marcia; “Our goal for 20 years has been to dramatically reduce lead-poisoning, especially in children where the effects are most severe and permanent.  Our continued recognition as the only test kit in the EPA RRP program has given us greater reach to accomplish our goal, and we’re excited to be able to provide contractors with a low cost, easy to use, and accurate test kit to help with compliance to this rule.   We are also excited about our position to help the states that are administering their own lead program, including our home state of Massachusetts.”

Trainers and renovators have been expressing some confusion about the EPA approved lead test kits.  The confusion revolves around whether the current test kits can still be used and/or if and when they might be replaced.

7/15/10: The following is the most recent information and communication about EPA approved lead test kits sent from EPA Headquarters in DC to each of the EPA regions. 

EPA Communication to EPA Region Headquarters:

"I wanted to take this opportunity to clarify an RRP issue because I understand that there may be some mis-information that may have been given out to training providers.  I understand that training providers have been told they should not buy a lot of the currently available test kits because they will not be valid after September 1.  This is incorrect.  I would appreciate it if you would ask your staff to clarify this with the training providers in particular.

 Background on Test Kits

• EPA has recognized two Phase 1 test kits (LeadCheck and State of Massachusetts kit) for use in determining if there is lead-based paint in target housing and child-occupied facilities.  These are currently being used by renovators and in renovator training classes.
• These kits will continue to be recognized until EPA recognizes Phase 2 kits.  The Phase 1 kits do not automatically sunset on September 1 or any other date in the absence of approved Phase 2 kits.
• EPA, under the Office of Research and Development’s (ORD) Envirnomental Testing Verification (ETV) process is currently evaluating 4 test kits for the Phase 2 criteria.  At this time we do not know if any of the kits will pass.

 We should have results in late July and will share that with you and post the preliminary results on the web."

Note: This information was shared with me by Joe Moriarty of LeadCheck.  LeadCheck^® Swabs is the only EPA recognized rapid lead detection product available for RRP use by EPA Certified Renovators.