Proposed EPA Rule Clouds Lead Dust Testing Protocol

May 6, 2011

Andrew McLellan, Environmental Education Associates, Inc.

The big news in lead hazard control in 2011 is the pending implementation of the dust sampling and clearance requirements under the RRP. That’s because EPA agreed, in the August 2010 Settlement Agreement, to implement wipe sampling and clearance for certain renovation activities by July of 2011. Just to add to the drama, several members of the US Senate presented Linda Jackson, EPA Administrator with a request for “further clarification” on the proposed rule. No response yet from EPA to that April 2011 request.

Lead professionals would be well served to review the sampling protocol for post-renovation sampling, which, incidentally, is quite a bit different from the EPA abatement clearance protocol, the City of New York requirements, and HUD expectations for subsidized housing. We’ll take a look at the proposed post renovation sampling requirements then compare against the existing agency clearance requirements.

EPA Post Renovation Dust Evaluation

EPA proposes to require dust wipe testing in work area on uncarpeted surfaces in certain circumstances that includes:

(1) Use of a heat gun at temperatures below 1100 degrees;

(2) Removal or replacement of window(s) or door frame(s);

(3) Scraping an area of 60 ft2 or greater; and

(4) Removal of more than 40 ft2 (or equivalent in a linear foot extrapolation) of trim or molding.

And to require clearance after:

(1) Use of machines that disturb lead-based paint through high speed operation such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblasting used with HEPA exhaust control; and

(2) Demolition or removal of plaster over 6 ft2.

Incidentally, there doesn’t appear to be a difference in the number of samples and locations between “Dust Wipe Testing” and “Clearance”. EPA uses the term ‘‘dust wipe testing’’ (DST) to mean collecting wipe samples of dust on floors and windowsills and in window troughs, analyzing the samples for lead content, and reporting the results of the analysis to the owners and occupants of the building being renovated. EPA uses the term ‘‘clearance’’ to mean demonstrating, through dust wipe testing, that the floors, windowsills, and window troughs in the renovation work area are below the regulatory clearance standards that have been established for the abatement program and codified at 40 CFR 745.227(e)(8). This includes recleaning where necessary to achieve the clearance standards.

The important difference lies between what happens when the results are in. DWT culminates in reporting the results to the owners and occupants, regardless of the values relative to the EPA hazard standards. Clearance, on the other hands, requires that the Renovator “pass” the EPA hazards standards of 40, 250 & 400 ug/f2 for the floors, sill and wells respectively.

EPA, in the introduction to the proposed rule, explains that information on results of DST is likely to improve landlords and occupants awareness of dust-lead hazards. Per EPA, “It will also greatly improve their ability to make further risk management decisions”. As such, the owner can’t hold the Renovator to the hazard standards unless they’ve specified such in their contract agreement.

DWT and clearance must be conducted by an individual who has completed the EPA Dust Sampling Technician certification, a one day course presented by an EPA accredited trainer. A Renovator who has completed the DWT certification can conduct post renovation evaluation on his/her own projects. EPA certified Inspectors and a Risk Assessors can also conduct serve this role.

Now let’s take a look at the actual sampling process. Here’s the common Post Renovation Sampling Protocol for Dust Wipe Testing and Clearance:

1. If there is more than one room, hallway, or stairwell within the work area, the following samples must be collected:

(A) One windowsill sample, one window trough sample, and one floor sample within each room, hallway, or stairwell in the work area. If there are more than four rooms, hallways, or stairwells within the work area, only four rooms, hallways, or stairwells must be sampled.

(B) One floor sample adjacent to the work area, but not in an area that has been cleaned.

2. If the work area is a single room, hallway, stairwell, or smaller area, the following samples must be collected:

(A) One windowsill sample, one window trough sample, and one floor sample.

(B) One floor sample adjacent to the work area, but not in an area that has been cleaned.

3. No window sill or trough samples must be collected if there are no windows in the work area.

All dust wipe samples must be mailed or otherwise transmitted to the laboratory within 1 business day of the date that they are collected. Dust wipe samples must be analyzed by a National Lead Laboratory Approval Program (NLLAP) laboratory. The renovation firm must provide, within 3 days of the date the renovation firm receives the report, a copy of the clearance or dust wipe testing report to:

(1) The owner of the building; and, if different, an adult occupant of the residential dwelling, if the renovation took place within a residential dwelling, or an adult representative of the child.

Notably, an additional provision exists for clearance only that provides for surfaces in poor condition when the renovation firm did not specifically agree to refinish in the renovation contract. Per EPA the renovation firm may stop re-cleaning and re-testing after the second failed dust wipe test on that surface.

EPA Abatement Clearance

TABLE 1

Type of Work Max # of Samples Sample Locations Max # of Rooms
EPA Contained Abatement 13 + 1 blank IWA – F,S & W OWA -1 4
EPA Uncontained Abatement 9 + 1 blank IWA – F,S or W OWA -1 4
Renovation Dust Wipe Testing 13 + 1 blank IWA – F,S & W OWA -1 4
Renovation Clearance 13 + 1 blank IWA – F,S & W OWA -1 4
NYC LL1/DOH TBD + 1 blank IWA – F,S & W OWA -1+ Every Room
HUD Subsidized Housing 9 + 1 blank IWA – F,S or W OWA -1 4

IWA – Inside work area, OWA-Outside work area, F- Floor, S-Window sill, W – Window well/trough

EPA requirements for clearance after abatement date back to 2001. The regulation stipulates that an inspector or risk assessor collect wipe samples as follows:

“After conducting an abatement with containment between abated and unabated areas, one dust sample shall be taken from one interior window sill and from one window trough (if present) and one dust sample shall be taken from the floors of each of no less than four rooms, hallways or stairwells within the containment area. In addition, one dust sample shall be taken from the floor outside the containment area. If there are less than four rooms, hallways or stairwells within the containment area, then all rooms, hallways or stairwells shall be sampled.

After conducting abatement with no containment, two dust samples shall be taken from each of no less than four rooms, hallways or stairwells in the residential dwelling or child-occupied facility. One dust sample shall be taken from one interior window sill and window trough (if present) and one dust sample shall be taken from the floor of each room, hallway or stairwell selected. If there are less than four rooms, hallways or stairwells within the residential dwelling or child-occupied facility then all rooms, hallways or stairwells shall be sampled.”

Consideration for sample collection, laboratory qualifications and reporting are pretty similar to renovation. The significant differences are found between the number of samples that are expected for renovation versus abatement. The proposed renovation regulation specify that samples are collected at 3 locations (i.e. floor, sill and trough) in up to four rooms while the abatement regulation specifies samples from one sill and one trough as well as floor samples from the floors of no less than four rooms.

The minimum number of samples for a renovation (in a four room project) is therefore 13 plus one blank. The minimum number of samples for a similar abatement project is 6, plus the blank. Table 1 details the dust evaluation option by work classification:

HUD Clearances

HUD follows the EPA standard for abatement, which makes historical sense when you think about what protocol existed when the HUD 1012 requirements took effect. The EPA abatement standards have served as the only “official” technique to date and the protocol has made its way into most of the HUD documentation used for hazard control work in Federally assisted housing. In fact, and to be more precise, the HUD clearance protocol leans toward the EPA uncontained abatement standard and away from the EPA contained abatement protocol.

NYC Local Law 1 of 2004

NYC HPD & DOH requirements for clearance go beyond the Federal standards to require sampling and analysis of floors, sills and wells (F,S,W) in each room where hazard control. This could amount to well over the typical 10 or 14 dust samples collected for HUD and EPA Renovations, respectively. It’s not unusual to see 18 -20 samples collected at projects conducted under the City Housing, Preservation & Development (HPD) or Dept of Health & Mental Hygiene (DOHMH).

New York also requires that lead wipe sample analysis is conducted by State Health Department Environmental Laboratory Approval Program (ELAP) accredited laboratories.

Notably, the State of New York is one of a handful of States that do not regulate lead hazard control or renovations in pre-1978 housing, relying instead on the EPA to meet the Title X requirements. The State does have a process of evaluating units where hazard control has been conducted in response to the identification of a lead-poisoning child. This testing is typically performed by County Health Department personnel or their consultants and again for the same historical reasons discussed above, testing protocol most often follows the HUD/EPA abatement protocol.

Summary

Implementation of the RRP dust sampling requirements promises to be messy, especially if the proposed Dust Wipe Testing provision makes it to the Final Rule. Existing EPA, HUDA and state and city-specific protocol are not consistent with the proposed rule. Lead hazard control professionals and laboratories involved in dust wipe analysis are faced with the challenge of meeting specific, overlapping requirements.

Further, the absence of an expectation to demonstrate that work area was lead safe after most renovations will surely disappoint those who bemoaned the subjectivity of cleaning verification cards. It should also come as a unpleasant surprise to those who been limiting (and pricing) HUD or EPA clearances based on 8 or 9 samples.