D.C. Seeks to Finalize Rules Aimed at Preventing and Eliminating Lead Hazards

For several years, the District of Columbia has been working toward regulations designed to prevent and eliminate lead hazards. It came one step closer on April 26, 2013, when the District's Department of the Environment (DDOE) issued a notice of proposed rulemaking to implement the Lead Hazards Prevention and Elimination Act of 2008 and subsequent amendments. It is the third proposed rulemaking that DDOE has issued for public comment since July 2011.

DDOE has indicated that it may finalize the rules as early as May 28, 2013, the date when public comments are due.

Background

Lead is a common metallic substance known to be a potent neurotoxin capable of causing a wide variety of severe and irreversible health effects in individuals who are exposed to it, particularly children under the age of six and pregnant women.¹ One of the primary means of lead exposure is through contact with lead-based paint, which was commonly used in residential buildings prior to 1978, when such use was banned. DDOE has estimated that more than 80 percent of the District's current housing stock was constructed prior to 1978 and may still contain lead-based paint. As a result, the District remains a high-risk area for lead exposure.² The DDOE rulemaking is intended to prevent and eliminate that risk.

DDOE initially issued this proposed rulemaking on July 22, 2011.³ After considering comments and informal feedback it received from interested stakeholders, it issued a second proposed rulemaking on August 31, 2012. In response to further comments, DDOE incorporated a number of significant revisions to the proposed rules, and these are included in the current proposed rulemaking.

Summary of the Proposed Rules

In general, DDOE's goal in this rulemaking is to eliminate the hazards from the dust and debris released when lead-based paint is disturbed. To eliminate such hazards, the proposed rules identify certain lead-safe work practices; establish certification and training requirements for individuals and businesses, as well as accreditation requirements for training providers; require certain disclosures for tenants; and establish lead-based paint abatement practices, among other mechanisms.

First, the proposed rules establish a rebuttable presumption that all interior and exterior surfaces of dwelling units and child-occupied facilities constructed prior to 1978 contain lead-based paint and that any deteriorated, chipping or peeling painted surfaces are to be considered prohibited lead hazards.⁴ This presumption can only be rebutted by an inspection report affirmatively documenting that the facility does not contain lead-based paint.

Second, the proposed rules require all individuals and businesses engaged in any activities that disturb lead-based paint to adhere to certain lead-safe work practices.⁵ Specific required work practices include:

• posting signs that clearly define the work area and provide proper warning to occupants and others in the vicinity not to enter the work area
• using plastic sheeting in interior spaces to isolate contaminated rooms and protect floors and furniture, and in exterior spaces to cover soil, grass and other ground surfaces in the area surrounding the activity
• closing off and covering of all duct openings with plastic sheeting or other impermeable materials
• collecting and storing all waste in a proper enclosure to prevent the release of dust and debris from the worksite at the end of every work day and upon completion of the work
• cleaning all objects and surfaces in the work area upon completion of the work, in compliance with applicable federal requirements

Regulated activities include, but are not limited to, renovation, remodeling, demolition, carpentry, roofing, siding, plumbing, painting or electrical work in, on or around a regulated facility. However, the proposed rules exempt (1) individuals who perform such activities in residences that they own and occupy and that do not house children under six or pregnant women; and (2) activities that disturb no more than two square feet per interior room or 20 square feet of exterior surface area.⁶

Third, the proposed rules require certain individuals involved in regulated activities, including risk assessors and lead-based paint inspectors, abatement workers and supervisors, renovators, dust sampling technicians and lead project designers to complete an accredited course in the appropriate discipline and obtain certification from DDOE.⁷ Individuals who are already certified by the EPA or an EPA-approved state program may become certified in the District by passing an exam administered by DDOE in lieu of completing the required training course.⁸ Additionally, businesses performing regulated activities must also obtain certification from DDOE.⁹

Fourth, the proposed rules impose certain disclosure and recordkeeping requirements on owners of regulated facilities. For example, owners must disclose to purchasers or tenants information known to the owner regarding the presence of lead-based paint, lead-based paint hazards and any pending actions ordered by the District.¹⁰ Owners must also notify tenants within 10 days of initially discovering the presence of lead-based paint or related hazards in the facility.¹¹

Fifth, the proposed rules contain certain requirements for the abatement of lead-based paint hazards and the razing or demolition of pre-1978 buildings. Subject to certain exceptions, abatement work must be performed by a properly certified professional and be permitted by DDOE. To obtain an abatement permit, applicants must submit (1) a copy of the scope of work; (2) a risk assessment, lead inspection report, or other documentation identifying the exact locations to be abated; (3) a certificate of liability insurance providing coverage for at least $1 million for individual environmental or lead claims; and (4) copies of current lead certification for the supervisor and business entity that will manage the abatement, among other items.

Finally, the proposed rules provide DDOE with a range of enforcement options, including the authority to issue cease and desist orders or orders to eliminate lead-based paint hazards.¹² Additionally, the District may seek recovery for any corrective action costs caused by a violation, impose civil penalties of up to $25,000 per day for each violation or secure a temporary restraining order, preliminary injunction or other relief necessary to enforce the requirements contained in the rules.¹³

Revisions in the Third Proposed Rulemaking

In response to its second proposed rulemaking, DDOE received numerous comments from multiple interested stakeholders.¹⁴ As a result, DDOE has incorporated a variety of revisions in the third proposed rulemaking,¹⁵ including the following:

• common areas of pre-1978 multi-family dwellings are no longer presumed to contain lead-based paint¹⁶
• DDOE's lead-safe work practices have been revised to be more consistent with comparable federal regulations¹⁷
• advance notice of dust sampling is now only required for sampling activities related to enforcement actions¹⁸
• DDOE has limited the circumstances in which exterior dust and soil sampling is required as part of post-renovation or post-abatement clearance examination protocols¹⁹
• regulated facilities that can demonstrate that they are free of lead-based paint are now exempted from the renovation permit requirement,²⁰ and certain "emergency renovations" are exempt from certain requirements related to the posting of warning signs, waste handling, training, certification and information distribution²¹
• DDOE has capped its lead-related permits at $500, which are otherwise based on a certain percentage of the total agreed-upon contract price for the regulated renovation or abatement work to be performed²²

Comments

Comments may be submitted to Pierre Erville, Associate Director of DDOE's Lead and Healthy Housing Division. Comments must be postmarked or emailed to pierre.erville@dc.gov by May 28, 2013.²³

Notes

¹ See U.S. Environmental Protection Agency, Learn About Lead, http://www2.epa.gov/lead/learn-about-lead#exposed.

² See District Department of the Environment, Notice of Third Proposed Rulemaking to Implement the Lead Hazard Prevention Act of 2008 and the Lead Hazard Prevention and Elimination Amendment Act of 2010, 60 D.C. Reg. 6,062, (proposed Apr. 26, 2013) (the "Lead Hazard Proposed Rules"), available at http://ddoe.dc.gov/sites/default/files/dc/sites/ddoe/page_content/attachments/Lead%20Regs%203rd%20proposed%20rulemaking%20FINAL.pdf.

³ See District Department of the Environment, Notice of Proposed Rulemaking to Implement the Lead Hazard Prevention Act of 2008 and the Lead Hazard Prevention and Elimination Amendment Act of 2010, 58 D.C. Reg. 6,035 (proposed Jul. 22, 2011).

⁴ See Lead Hazard Proposed Rules, pt. 3301.

⁵ See id. at pt. 3302.

⁶ See id. at pt. 3303.

⁷ See id. at pts. 3305-3307.

⁸ See id. at pt. 3308.

⁹ See id. at pt. 3311.

¹⁰ See id.§3313.1.

¹¹ See id.§3313.8.

¹² See id.§3320.2.

¹³ See id.§3320.8.

¹⁴ A summary of comments submitted in response to the second proposed rulemaking, along with DDOE's responses, is available at http://ddoe.dc.gov/sites/default/files/dc/sites/ddoe/page_content/attachments/Lead%20Reg%20Comments%20and%20Responses%203-13.pdf.

¹⁵ A brief summary of specific revisions that have been incorporated into the third set of proposed rules is available as part of the rulemaking at 60 D.C. Reg. 6,065-66 (Apr. 26, 2013).

¹⁶ See Lead Hazard Proposed Rules, §3301.1.

¹⁷ Compare Lead Hazard Proposed Rules, §3302 with 40 C.F.R. §745.85.

¹⁸ See Lead Hazard Proposed Rules, §§3315.7, 3316.10, 3318.7.

¹⁹ See id. §§3310.4(c), 3316.11(c)(4)-(5), 3318.7(a)(6), (a)(8). This requirement has also been eliminated entirely from §3316.10.

²⁰ See id. §3310.3. This section is a new addition to the third proposed rulemaking.

²¹ See id. §§3310.10, .11, .13.

²² See id. §§3322.5-.6.

²³ Additional information regarding submission of comments in response to this rulemaking is available at http://ddoe.dc.gov/node/494422.