Locke Lord QuickStudy: Fixing Up Your Lead Based Paint Compliance

This spring, Magnolia Waco Properties, LLC (Magnolia Homes) reached a settlement¹ with the U.S. Environmental Protection Agency (EPA) to settle alleged violations of EPA’s Lead Renovation, Repair and Painting Rule (the Lead-Safe Rule).² Contrary to some recent headlines, the company was not using new lead based paint; lead based paint was banned in the U.S. in 1978.  But lead based paint is still present in many structures built before 1978.  If it becomes airborne or is ingested, the lead in the paint can cause various health issues for both adults and children.  EPA states that lead paint poisoning in children can lead to learning disabilities and behavioral issues.  Loose and chipping paint is a big culprit, but more recent research showed that dust produced in renovations is now an even more common way to be exposed to lead.

What was the company’s alleged misstep?

Turns out, EPA watches Fixer Upper too. According to EPA’s website, EPA noticed that several renovation projects shown on the program were missing the required dust control measures. EPA reached out to Magnolia Homes and the company promptly took steps to correct the deficiencies. In addition to paying a fine, the settlement agreement also requires Magnolia Homes to complete certain educational programs, including producing an educational video. The video will be posted on the company website in the coming months.

What can you do to avoid similar issues?

Even though you might not have EPA staff studying your work on their DVRs, there are steps you can take to comply with the applicable regulations. EPA’s Lead-Safe Rule applies to renovations in “target housing” and “child occupied facilities.” Generally, these include housing (except for housing for the elderly and certain other limited exclusions), and other places regularly occupied or visited by a child, if the structure was built before 1978 and hasn’t been certified “lead-free” by a qualified consultant. Renovations include removals, modifications, and repairs that disturb painted surfaces, both interior and exterior. For any projects that impact painted surfaces in these structures, be sure your contractors are certified under the Lead-Safe Rule (or get certified if you provide services for compensation in these structures). EPA maintains a database of contractors on its website at www.epa.gov/lead.

Lead-Safe certified contractors will follow the work practice standards in the Lead-Safe Rule, including minimizing dust generation, containing dust that is produced, and thorough cleanup. Dust control measures include containing the work area, placing warning signs to exclude non-trained workers, and covering floors, HVAC ducts, and other openings to help with cleanup. Once interior work is completed, post-cleaning verification testing should be done either with a wipe test, or by a separate consultant.

In addition to the Lead-Safe Rule, EPA rules also require sellers and landlords to provide disclosures regarding lead based paint to buyers and tenants of residences built before 1978. This is the case even if the building has been fully renovated in the interim, unless the building is certified “lead-free.”

_{1 https://www.epa.gov/sites/production/files/2018-06/documents/magnoliawacopropertiesllcconsentagreementandfinalorder.pdf
2 40 C.F.R. Part 745, Subpart E.}