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?
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).