OSHA Left Out Of RRP Rule Development, Just Getting Up To Speed. 

On Friday Mark Paskell and I attended a half day LEAD Hazard Awareness workshop sponsored by the MA Division of Occupational Safety and OSHA.  (Download the Power Point Presentations)  Mark and I agreed we learned quite a bit of new information related to OSHA requirements that apply to RRP related work at the workshop.  We have been working on developing training programs and workshops to help renovators become aware of and address OSHA rules.  Attending the workshop will definitely help us enhance our future offerings.

At the workshop it became obvious that OSHA and EPA didn’t collaborate on the RRP rule or the content of the required certified renovator training curriculum.  It also became obvious at the workshop on Friday that the OSHA reps in attendance were only just recently getting up to speed on the new RRP rule. When answering several attendee questions about OSHA requirements related to RRP work, I could tell the OSHA employees in the room lacked a true understanding of the required RRP work practices.  Although the RRP rule went into effect on April 22, 2010 these employees said they had only recently attended any training related to the rule.

If RRP instructors follow the EPA created instructor training manual when training renovators, they will be teaching students to do things that violate OSHA rules.  (Read more here) Will it be an adequate defense if fined by OSHA to defend what you did by referring to the content of the training manual?   It appears that the EPA attempted to cover its lack of clarity and understanding of OSHA rules in the training manual by adding this disclaimer where the manual covers the training of non-certified workers by certified renovators; “Note: OSHA rules may require employers to take further steps to protect the health of workers on the job” 

It’s always easy to find fault, but what we need is solutions.  So here are only but a few of my suggestions to EPA and OSHA:

• Rather than use fines and penalties to promote awareness and compliance, use education to help employers and employees identify and understand the health and safety risks of their professions and what laws and regulations they must comply with.  Knowing the why often makes the how easier to embrace.
• Rather than promote compliance with just mandatory reporting, paperwork and or fines, offer and require attendance at strategic training classes that not only explain what is required, but also why.  The classes could also include training on how to fill out the required reporting forms correctly.  Doing so would serve to help complying businesses who do the right things for their workers and customers, only to then get fined due to paperwork errors.
• Allow OSHA and EPA to keep the money collect in fines provided that use of this money is clearly targeted towards developing and supporting education that results in a better educated workforce, improved awareness of related health risks and reducing worker injuries and or illnesses. 
• Perhaps our industry could establish standard designations for workers who satisfactorily complete a predetermined curriculum of classes relevant to specific job duties and work environments.  This would increase the value employees bring to employers and give employers a simple and standard way to assess the knowledge and or experience of job candidates.
• Current OSHA and RRP related rules and training seems to concentrate on what not to do, without enough time and attention on the right way to do things.   With OSHA for example, fall protection rules require a business to put fall protection equipment in place and train workers when and how to use.  Great, but why not also complement it with training on methods for working safely and how to avoid putting yourself in a position to fall?    
• For RRP, the required training teaches how to contain dust and debris so it won’t spread outside the contained work area. Might renovators who follow these instructions only be increasing the health risks to workers by containing and concentrating the dust and debris in the confined work area? Wouldn’t it make sense to also train workers on lead-safe work practices that actually limit or prevent the creation of dust to begin with?  

If you have suggestions to add to this list please share them here.  If some day we have the opportunity to revise these rules and or the strategies used by our government to administer them, we will already have a collection of solutions to consider and offer.

Uninformed and Nervous Neighbors Will Keep RRP Renovators On Their Toes

Awareness about lead and the potential effects of lead poisoning may not yet be prevalent with the public, but it will quickly increase.  Renovators need to deal with this reality in a proactive way.  Training and firm certification are great first steps.  But, renovators will need to do much more to protect their businesses from potential challenges and liabilities triggered by an uniformed public.

First, the EPA’s public awareness campaign has already begun.  The campaign warns people of the dangers of lead, but does little to make them aware of the RRP rule, the need to work with renovators who are certified in lead-safe work practices, and or how to find a certified firm to oversee work on the homes they live in.  So, in effect, the campaign warns the public but leaves them basically ignorant of their options. (Click on the sample ad to the left to view in full size)

Second, the warning signs and barriers required to be put in place around exterior and common area containment areas will have a similar effect of raising concern.  Unless properly educated about their options and about lead-safe work practices, neighbors and the parents of children attending child occupied facilities will again suffer from ignorance about lead.  Many will likely react out of fear.   This fear may potentially result in reporting a renovator and causing an inspection, even if the renovation work is being done within compliance. 

Remember, as a business you are guilty until you prove yourself innocent at your own expense.  An OSHA and or RRP inspector will likely be able to find at least one violation of some rule if they show up at one of your jobsites.  Some inspectors may even feel it is their obligation to find a violation.  The cost to defend yourself might be as high as the cost of any fines, so even if you win you lose. In Massachusetts, the Department of Occupational Safety (DOS) is already collaborating with OSHA regarding what to do if either finds a violation that should be referred to the other.  Oh, and don’t forget those neighbors who have a bone to pick with your customer, have nothing else to do all day, and or are just plain paranoid.

Compliance With and Enforcement of the RRP Rule Will Be Assisted By OSHA Inspectors

In addition to the OSHA rules contractors should already have been aware of related to worker safety, the EPA RRP rule has added yet additional OSHA concerns for renovators.  One for example is working on a surface covered with plastic. OSHA considerations related to working on plastic are not part of the curriculum delivered during the required EPA certified renovator training. Due to the absence of this information, the EPA is essentially leaving it up to renovators to become aware of such considerations on their own.  Once aware, renovators must seek out the information they need and adjust their work practices accordingly to avoid fines from OSHA should they get randomly inspected.   Or worse, have a worker accident. 

This begs a few questions.  First, were the authors ignorant of such considerations?  Asked another way, does the left hand know what the right hand is doing?  Is this another example of a breakdown in communication between very significant departments of our government charged to look out for our best interests?  A second question might be; did the authors of the EPA RRP rule leave this information out of the rule for a strategic purpose?  Perhaps this is just one more way to force small independent businesses out of the construction industry in favor or labor unions. 

In one of his recent blogs, RRP certification training provider and business coach, Mark Paskell of The Contractor Coaching Partnership, shares a real life story about a contractor who was visited, at the same time, by both an OSHA inspector as well as an inspector from the Massachusetts Department of Occupational Safety (DOS).  (Massachusetts has assumed administration and enforcement of the RRP rule from EOPA)  In the blog Mark describes the battle that took place between the OSHA inspector and the DOS inspector about the use of plastic on the jobsite. Check out the blog to see which inspector retreated. 

Of bigger concern should be the distribution of misinformation at the certified renovator training.  For example, using the sample signage included in the EPA approved training manual (required to be posted outside contained work areas), might just get you in trouble with OSHA.  First off the RRP rule requires the use of a “warning” sign, but the sample sign is a “caution” sign.  OSHA considers a warning sign to be a stronger message than a caution sign, and has rules dictating when and how to choose one versus the other. 

Also, if you have employees, the sample sign in the manual will not meet OSHA requirements either.  Employees must be told what they are being warned about on such signs, in this case lead, and the signs must also instruct the employees not to smoke, eat, or drink in a work area assumed to contain lead.  Check out this article by Dick Hughes of Excellence in Safety for a list of other OSHA requirements left out of the RRP rule. 

The RRP is challenging enough to comply with.  Contractors putting their heads in the sand about OSHA requirements and compliance are taking a huge risk.  I am planning on taking some OSHA training classes to learn more about what contractors must need to be aware of and what they will need to do to avoid risking violations and fines.  I will post information about this subject to RRPedia in the future.   If you have not done so already, you can subscribe to RRPedia at the top of this page.   Subscribers will be notified by e-mail as soon as new articles are posted.

If you are looking for forms and signage to help you with comply with the EPA RRP rule, I recommend you check out what The Lead Paint Forms Store has to offer.

Delegated States Likely Better Prepared To Enforce EPA RRP Rule

Several states around the country have assumed administration and enforcement of the EPA RRP rule and others are also thinking of doing the same.  EPA actually offers money for the states to use to investigate the practicality of doing so.  As this happens each state must create its own rule which is at least as strict as the EPA rule in order to get approval to do so from the EPA.  This will lead to confusion for many renovators. 

Variances in the rule requirements, from the EPA RRP rule and also from state to state, will make it difficult for renovators to understand the differences and keep up with amendments made by each entity.  Renovators working in more than one state many have to become certified firms in each state they operate in and or also with the EPA.  Are renovators better off if their states write a better thought out rule?  Would renovators be better served if there was just one well written rule for everyone to follow?   I predict that confusion may likely contribute to violations and fines for these renovators. 

In July of this year Massachusetts took over administration and enforcement of the RRP rule.  The Massachusetts Regulations, written by the Massachusetts Department of Occupational Safety (DOS), include many of the OSHA related considerations left out of the EPA RRP rule and the EPA required certified renovator training.   As a result, Massachusetts contractors are quickly becoming aware of the already existing OSHA considerations related to working with lead.  For example, the Massachusetts firm licensing application includes a requirement that a written respiratory protection and worker health and safety program evidencing compliance with the Massachusetts RRP rule and OSHA medical monitoring requirements be submitted with the application.  This will force businesses to have such a program in place before they can be licensed to do RRP work.   The requirement will also serve to dictate what the business must have in place should they be inspected by either the DOS or OSHA.   I predict the need for OSHA related training will increase dramatically as contractors become aware of violations and fines levied against their peers.

The MA DOS has also started conducting on-site inspections.  Though most inspections are triggered by citizens reporting suspected violations, the DOS is also out in the field and is stopping by renovation projects as they come across them.   In one of his recent blogs, RRP certification training provider and business coach, Mark Paskell of The Contractor Coaching Partnership, shares a real life story of a painter who was visited by DOS after a neighbor next door to one of his projects called the DOS with concerns about soil contamination.  The contractor was in compliance and made out fine, but the DOS left him with a message and asked that he would share it with others.  "Tell every contractor you know we're out there enforcing. Tell your friends, your neighbors, other contractors you know, suppliers and trades. We are here and we will enforce the new law"

NOTE: EPA has authorized nine states to administer their own RRP programs: Iowa, Kansas, Massachusetts, Mississippi, North Carolina, Oregon, Rhode Island, Utah and Wisconsin.

Renovators Intending to Comply With EPA RRP Rule May Be Blind-Sided by OSHA Requirements

The following article, written by Dick Hughes of Excellence In Safety, was forwarded to me last week by a colleague.   Dick credits his sources at the end of the article.  I also verified the accuracy of the information through one of my contacts at the Massachusetts DOS. 

The article lists a variety of OSHA considerations that may likely blind-side well intentioned renovators as they attempt to comply with the new EPA RRP Rule.   The RRP Rule and OSHA requirements are in conflict with each other in many ways.  One EPA contact shared with me that EPA and OSHA did not collaborate on the rule while it was being written.   This one consideration alone should raise serious doubt and concern for business owners about business liabilities and potential fines. 

If an EPA enforcement employee and and OSHA Field inspector show up at one of your jobsites, at the same time, there is no way you will be able to satisfy both.  I suggest this is another example of shortsighted leadership within both organizations.  It also points out the lack of knowledge and awareness our political leaders in Congress have as it relates to understanding the construction industry and overseeing the creation of regulations that affect businesses of all sizes.

The Article:
Big Compliance Problems Ahead for Worker Safety

On April 22, 2010, the Environmental Protection Agency (EPA) implemented a rule that requires contractors that are hired to perform renovation, repair and painting (RRP) projects in homes, child care facilities, and schools built before 1978 that disturb lead-based paint to be certified and follow specific work practices to prevent lead contamination. This rule is expected to impact hundreds of thousands of employers and millions of employees.

EPA is already proposing an expansion of this rule into pre-1978 commercial facilities. That change will significantly expand the scope of employers and building owners covered by this new regulation. Failure to comply with this new regulation can result in fines as high as $65,000 per violation, including a potential prison term. The EPA will enforce violations of the new regulation starting on Oct. 1, 2010.

The new EPA rule includes the following requirements:

• The new EPA regulations require “firms” that disturb more than 6 square feet of paint per room (or more that 20 square feet on the exterior) in these pre-1978 buildings to become certified with the EPA and employ certified renovators who would train workers and oversee these projects.

• Firms include contractors who are hired to perform renovation, repair and painting work where paint is disturbed in the targeted housing.

• Building owners whose maintenance staff also disturb painted surfaces in targeted housing must also be certified and use certified renovators.

• Certified firms must send a supervisor or “renovator” to an 8-hour class where they become certified to oversee work covered by the RRP rule.

Here’s the rub: The 8-hour class only covers the EPA requirements and completely ignores OSHA worker protection rules. Therefore, safety professionals might find that “Certified Firms” are violating OSHA lead regulations because they were not taught about OSHA requirements for worker protection. This is going to be a huge issue for employers whose employees are exposed to lead hazards during work covered by the new EPA RRP rule.

EPA Rule Doesn’t Fulfill OSHA Requirements
Employers and building owners should be alert to the fact that OSHA rules differ significantly from the EPA RRP regulations. OSHA lead regulations apply to any work where employees come into contact with any level of lead or lead bearing coatings. They should also note the following worker protection and/or OSHA omissions in the new EPA lead-based paint rule:

• Lead-based paint. The EPA RRP rule defines lead-based paint as containing more than 0.5 percent lead by weight. Lead coatings below this threshold are exempt from any special EPA certification, training or work practices. However, OSHA regulates lead in any amount. Therefore, many employers will believe that lead-coated surfaces below the EPA standards of 0.5 percent by weight are not regulated when in fact they may still be regulated by OSHA.

• Regulated areas.OSHA mandates under 1926.62 that employers establish “regulated areas” when lead or lead-coated surfaces are disturbed. A regulated area requires specific OSHA signage. The EPA signs required by their new RRP rule do not meet OSHA requirements for a regulated area.

• Written compliance program. OSHA regulations require a detailed compliance program listing specific requirements for employers to document. The EPA RRP rule does not have any requirements or discussion of a written compliance plan.

• Mandatory respirator use. OSHA lead regulations require monitoring for employees exposed to lead dust or fumes during work. OSHA has established three work class tasks for which certain exposures above the permissible exposure limit (PEL) must be assumed when employers fail to perform exposure monitoring. All of the work practices covered by the EPA RRP rule require employee respiratory protection under OSHA. However, the EPA required training only discusses respirator use as optional. The EPA training does not discuss OSHA regulations for a written respirator program, medical clearance, respirator training and fit testing for employees who are required to wear respirators.

• Protective clothing. OSHA lead regulations require protective clothing when work tasks disturb lead coatings (without a negative exposure assessment). OSHA requires either disposable clothing or employer laundering. The EPA RRP rule lists disposable clothing as optional and trains workers to use HEPA vacuums to clean clothing before going home. OSHA also requires employers to notify other employees or employers who would launder the contaminated clothing. The EPA RRP rules do not provide any awareness for employees who launder their own contaminated work clothing.

• Annual training. OSHA regulations require annual training when airborne levels of lead dust or fumes exceed their action level. EPA’s new RRP rule only requires training every 5 years.

• Hygiene facilities. OSHA regulations require a separate area to change from work clothing to street clothing as well as providing for hand/face washing facilities. The EPA does not address change facilities and suggests that workers wash their hands and face prior to leaving the work place.

• Medical surveillance and biological monitoring. OSHA mandates biological monitoring for employees exposed above the action level for airborne lead dust and fumes. The EPA RRP rule briefly mentions that the only way to detect lead in your blood is with a blood test and does not inform the workers of the OSHA requirement for biological monitoring.

The new EPA RRP lead-based paint rule is an important regulation for reducing the unacceptable levels of elevated lead in children’s blood in certain areas of the country. However, this huge piece of legislation has done a disservice to the millions of workers who will be impacted by lead during common renovation, repair, and painting activities in residential and child occupied facilities by ignoring mandatory worker protection requirements mandated by OSHA. Contractors and building owners must take extra steps to ensure that their workers or employees of contractors disturbing lead bearing substances in their facilities are thoroughly trained and protected in all applicable regulations; specifically OSHA worker protection rules for lead.

Thanks to:

Jeffery C. Camplin, MS, CSP is president of Camplin Environmental Services Inc., a safety and environmental consulting firm based in Rosemont, Ill. He is a licensed lead risk assessor and accredited EPA lead-based paint instructor for abatement courses and the new RRP rule training.

Useful links related to this article:
• July 21 Virtual Audioconference: EPA’s New Lead Paint Regulations Will Get You in Trouble with OSHA http://www.workplacetrainingcenter.com/Prod-2067.aspx

• EPA information on the new RRP rule for lead-based paint can be found at http://www.epa.gov/lead/pubs/toolkits.htm

• HUD information on lead safe work practices for renovation work can be found at http://www.hud.gov/offices/lead/training/rrp/rrp.cfm

• OSHA information on worker protection for employees exposed to lead-bearing substances can be found at http://www.osha.gov/SLTC/lead/construction.html

About the author:
Dick Hughes
Excellence In Safety
24 Spring Bars Road Falmouth, MA 02540
Web: www.excel-in-safety.com
capesafetyguy@aol.com
1-508-548-0866
cell: 1-617-653-4950

This article was originally published at Work Place Magazine

Question: Does the RRP rule require people working on a renovation to wear respirators, Tyvek(R) suits or other personal protective equipment (PPE)? 

Most renovation contractors have little knowledge or experience with OSHA requirements.  OSHA requirements concentrate on the occupational safety of the worker.  There are many OSHA requirements that contractors should already be following if they use employees or sub contractors on their job sites.  Because lead can create serious health risks for employees and workers, employers would be wise to become familiar with the OSHA requirements related to the work they perform under the EPA RRP rule. 

The required containment methods and work practices have changed the way work gets done in the field.  Even if working within OSHA requirements in the past, new activities and methods used on RRP related projects most likely trigger personal protection considerations under OSHA regulations.

Unfortunately, while creating the EPA RRP rule, the EPA did not include reference to any specific OSHA requirements.  Therefore, renovators need to know and understand both the RRP rule as well as any related OSHA requirements in order to protect workers and avoid potential penalties from OSHA and or EPA.  To learn more about the related OSHA requirements, renovators can refer to the OSHA Lead in Construction Standards.

In the new MA RRP rules, still yet to be enforced as of this posting, many of the OSHA requirements related to RRP work have been included in the regulations.  When I met with employees from the MA Department of Occupational Safety to discuss the proposed rule, they were very helpful in clarifying the reasons for adding these consideration.  So, although the EPA and OSHA may not have collaborated when the EPA RRP rule was created, MA renovation contractors will have the advantage of knowing what OSHA requirements they will need to consider depending on the work they do as well as the methods they use to do the work.  Reading the MA RRP rule would help renovators working under the EPA RRP rule identify many of the related OSHA considerations.

Here is EPA's response to the question at the beginning of this post:

"EPA would like to clarify the requirements for personal protective equipment.  The Occupational Safety and Health Administration (OSHA) has requirements for personal protective equipment, EPA does not.  For many years, EPA has recommended the use of personal protective equipment as a way to protect workers and to help ensure that leaded dust and debris does not leave renovation or abatement work sites.  EPA recommends that renovators make use of the minimum respiratory protection recommended by the National Institute of Occupational Safety and Health (NIOSH) for environments where lead is present, but respiratory protection is not required by the EPA regulations.  In addition, disposable clothing, if removed and disposed of before the workers leave the work site, can provide additional protection for workers' families by ensuring that no leaded dust or debris is carried home on worker clothing.  However, EPA does not require this and allows renovators to use other methods to ensure that dust and debris does not leave the work area, including the HEPA vacuuming of clothing, tools, and other items before they leave the work area."  

The Massachusetts Division of Occupational Safety will hold a Public Hearing on May 24, 2010 to take comments on new regulations related to their intent to seek authority in administering and enforcement of the EPA RRP program from the EPA.  The hearing will be held on Monday May 24, 2010, from 10:00 a.m to 1:00 p.m. in the South Street Amphitheater of the UMass Medical School at 333 South Street, Shrewsbury, MA

In general, remodelers are not happy with the new EPA requirements and certainly have the right to express their opinions.  The new MA regulations are very similar to the EPA Rule, but also include language related to already existing OSHA and DOS requirements that have become applicable to certain remodeling work as a result of the RRP requirements.  If you plan to attend the hearing, I suggest you first read the EPA Rule and preamble, the accepted and proposed amendments, and the MA rule before assuming anything or commenting at the hearing. 

Please make sure you are informed regarding any of the opinions you share or accusations you might make at the hearing.  If you express concerns or ask questions that are already addressed in the rule and or amendments, you will certainly lose credibility.  If this were to happen, you might also compromise the efforts of others, particularly industry trade groups like EM NARI and or BAGB, if you identify yourself as a member of one of these associations at the hearing. That said I hope you will join those of us who want to help our industry make the best of this new reality by being a passionate and at the same time a professional voice at the hearing.

The following information is from the DOS web site:

"The Division of Occupational Safety will hold a Public Hearing on May 24, 2010 on Proposed Amendments to 454 CMR 22.00 (Deleading) and 801 CMR 4.02 454 (16) and (18) (Licensing Fees for Lead-Safe Renovation Contractors and Lead-Safe Renovator Training Providers): 

In accordance with M.G.L. c. 30A, § 2, the Massachusetts Division of Occupational Safety will hold a Public Hearing to receive comments on proposed amendments to its deleading regulation, 454 CMR 22.00, which include new provisions for renovation, repair and painting work conducted in target housing and child-occupied facilities, and to 801 CMR 4.02 with regard to licensing fees charged to Lead-Safe Renovation Contractors and providers of Lead-Safe Renovator-Supervisor training.  The proposed regulations are authorized by M.G.L. c. 111, §§ 189A through 199B and M.G.L. c. 149, § 6 for 454 CMR 22.00; and M.G.L. c. 7, § 3B and M.G.L. c. 111, § 197B(e) for 801 CMR 4.02 454 (16) and (18).  A hearing will be held on Monday May 24, 2010, from 10:00 a.m to 1:00 p.m. in the South Street Amphitheater of the UMass Medical School at 333 South Street, Shrewsbury, MA (for directions click HERE). 

Copies of the proposed regulations may be downloaded by clicking on the respective link: 454 CMR 22.00 and 801 CMR 4.02 454 (16) and (18).

Comments on the proposed regulation may be sent to Laura Marlin, Commissioner, Massachusetts Division of Occupational Safety, 19 Staniford Street, 2nd Floor, Boston, MA  02114 until the close of business on Friday, May 28, 2010.     

The Division of Occupational Safety filed emergency regulations on April 2, 2010, at 454 CMR 22.00, replacing its Deleading regulations with new regulations entitled Deleading and Lead-Safe Renovation.  These regulations were published in the Massachusetts Register on April 16, 2010, and are effective April 2, 2010.  However, at the present time, the Division of Occupational Safety will not enforce the new regulations, unless and until it receives delegated authority from the Environmental Protection Agency to administer and enforce EPA's Renovation, Repair and Painting Rule.  Entities newly covered by the new regulations should continue to obtain their licenses from EPA at this time."

Further information on the RRP Rule, application forms for contractors, applicable fees and lists of approved training providers may be obtained through the following link: http://www.epa.gov/lead/pubs/renovation.htm

EPA Region I contacts:
Rob Carr - 617-918-1607        James Bryson - 617-918-1524

Click here to go to the MA DOS web site        

Many Certified Renovators, after taking the required EPA RRP certification class, leave with questions about respirators.  The RRP rules are not specific about the need or requirement for workers to use respirators while performing work practices, but there are OSHA rules to consider. For information regarding OSHA requirements contractors can refer to the OSHA document titled Small Entity Compliance Guide for the Revised Respiratory Protection Standard

There is also more information about respiratory protection at the OSHA web Site.  If you want a quick resource of OSHA information about respirators try the Respiratory Protection Frequently Asked Questions page of the OSHA web site.

If you are a certified renovator tying to figure out where to get started about respirators, the following information is from the HUD Booklet titled Lead Paint Safety, A Field Guide for Painting, Home Maintenance and Renovation Work.  It should give you a good idea of when respirators would be required or not.  It can also help identify when you should consider OSHA Requirements on RRP related work.  The booklet also includes very thorough instructions, for working lead safe, specific to performing a variety of projects.  It could be a great resource for contractors trying to collect effective and innovative lead safe work practices, just be sure to stay in compliance with RRP rules.