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50 days & counting: Why OSHA is irrelevant to the RRP regulation

It is truly amazing how much bad information is put out on the internet every day. We have testing companies promoting their products, which a CLR cannot use. We have Lead Inspectors trying to sell their services as a way of getting around the RRP by saying – well only this component has lead so you just have to contain this item, which is also incorrect. We have others jumping up and down about how every project on pre-78 houses now falls under the OSHA regulations.  Well guess what – OSHA is completely irrelevant as far as the RRP is concerned. As of April 22nd, nothing changes, except that everyone working on pre-1978 target houses must comply with the EPA regulations .  

What OSHA says:

As we covered in the prior articles on the differences between OSHA & the EPA, followed up by OSHA’s requirements and the costs one phrase is always used by OSHA: where lead is present (29 CFR 1926.62 § A – Scope). OSHA does not care if it is in a 1950 house, a 1990 house, located in the tile, the mortar, the paint, etc… If lead is present, you have to follow their requirements starting with an initial determination.  Well that is nice but if we don’t test, don’t we have to assume that lead is present per the EPA?

What the EPA says:

Well, I am just as guilty as others are by simplifying the regulation by saying; “The regulation is simple, you either run the tests to prove that lead is not present or you assume lead is present and use the lead safe practices”.

Based off §745.82 – the Applicability section, you must use the EPA’s Lead Safe Work Practices unless it has been certified as lead free or below their de minimis threshold. There is no assumption that lead is present, it is that you must use their work practices or prove that they are not needed.  Now if lead is present you must follow the OSHA regulations. If no testing is completed what does OSHA require?

OSHA Advisor:

As we mentioned in another article, OSHA has provided an “OSHA Lead in Construction Advisor” which is one of many invaluable tools that they provide to help you. So what happens when you simply say – I don’t know if lead is present?

Since you are not sure if lead is present at your job/work site, you should know that there are several methods of testing for the presence of lead, including the use of:

(1) Lead detection spot test kits
(2) Bulk materials testing (Not allowed to be used per EPA RRP for CLR’s)
(3) X-ray fluorescence (XRF) analyzers (Not allowed to be used per EPA RRP for CLR’s)

You also may find information on the presence of lead-containing materials in records belonging to the owner of a building or structure.

Come back to the Lead Advisor when you know if lead is present.

Back to the EPA:

§ 745.61   Scope and applicability.
(c) Nothing in this subpart requires the owner of property (ies) subject to these standards to evaluate the property (ies) for the presence of lead-based paint hazards or take any action to control these conditions if one or more of them is identified.

The end result:

The end result is simply the status quo; OSHA does not require you to test for lead and the EPA has stated that there statute cannot be used to compel a homeowner to have testing done. Therefore, if lead is present, you need to follow OSHA’s regulations that have been in place for years. The only thing that has changed is more people now know about the OSHA regulations and the new regulation issued by the EPA will soon be in effect.  

A quick tip for Replacement Contractors (Windows, Siding, Roofing & other associated trades):

You all know that many old houses have lead paint on the exterior components (especially pre – 1950 houses per OSHA). Based off OSHA regulations while you have to do an initial determination, but you do not have to do one on each project. You may wish to review 1926.62(d)(3)(iii) & (iv).

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  • Lead Inspektor

    “We have Lead Inspectors trying to sell their services as a way of getting around the RRP by saying – well only this component has lead so you just have to contain this item, which is also incorrect.”

    Why do you say this is incorrect?

    • Sean

      This is not abatement, this is the RRP – the only exception to following the Lead Safe Work Practices is if the house or area being worked on is certfied lead free or below the de minimus levels. If lead is found you must follow the regulations, period

      • Lead Inspektor

        That’s not the way I read the regs.

        Page 21711 on the standard, middle column, paragraph b:

        My interpretation of this paragraph is that a licensed inspector/risk assessor can take an XRF gun (or paint chip for that matter) and test individual components OR an entire dwelling. As long as the components that are to be worked on don’t have LBP, then the rule would not apply. For components that do have LBP, the rule would apply. No need to assume that LBP is present since testing identified where lead is and isn’t.

        Your thoughts?

        • Lead Inspektor

          I don’t know why the regulation paragraph I quoted disappeared from my post. Here it is again.

          “Renovations affecting only components free of regulated lead-based paint-i. Determination by certified inspector or risk assessor. In keeping with the 2006 Proposal and the 2007 Supplemental Proposal, this final rule exempts renovations that affect only components that a certified inspector or risk assessor has determined are freeo f paint or other surface coatings that contain lead equal to or in excess of 1.0 mg/cm2 or 0.5% by weight…. 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.”

          • Sean

            Correct – you as a Lead Inspector can test individual components, & an Abatement Contractor can deal with just that one piece. However, we do not have that option as Certified Lead Renovator &/or Certified Firm – we must follow the RRP Reg 745.40

            § 745.82 Applicability
            (a) This subpart applies to all renovations performed for compensation in target housing and child-occupied facilities, except for the following:(1) Renovations in target housing or child-occupied facilities in which a written determination has been made by an inspector or risk assessor (certified pursuant to either Federal regulations at §745.226 or a State or Tribal certification program authorized pursuant to §745.324) that the components affected by the renovation 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, where the firm performing the renovation has obtained a copy of the determination.

      • Lead Inspektor

        Ok, so perhaps we are trying to say different things. Given your point above, what you are saying is that if lead is present on any component involved in the renovation project, then the RRP rule applies to all components involved in that renovation, regardless of which components were found to have lead or not.

        This is different from the angle I was looking at your first comment.

        What I am saying is that if a lead inspector identifies components A,B,C to be free of LBP, and components X,Y,Z to have LBP, and a particular renovation project only touches components A,B,C, then the project can be done without regard to the safe work practices requirements of the RRP rule. The LBP components X,Y,Z can not be touched as part of the project, even if done in a containment.

        Are we in agreement? Or is there still middle ground to be found…

        • Sean

          I think we are pretty much there – your example is pretty much spot on

          If the renovation were to include components X,Y,Z we could touch them utilizing the RRP regulations – containment, signs, cleaning verifications, etc… (unless you work in IL – you would have to call an abatement contractor) We could theoretically follow the regs to remove said components – clean then test out & get on with the real demo also if we so chose. We would also have to deal with the OSHA statues but according to the RRP we would be good to go.

          If we don’t touch said components – you are correct; the RRP regs do not apply except for the disclosure notification & keeping a copy of the report.

  • chris

    Excellent post Sean, your research has been very helpful, thanks for sharing!