EPA, RI Company Reach Lead Settlement
Earlier this summer, the U.S. Environmental Protection Agency announced that it had reached a settlement with a corporation out of Rhode Island for alleged violations of the Lead Renovation, Repair and Painting (RRP) Rule.
The violations are alleged to have occurred during renovation and construction activities by American Wire, LLC, at the American Wire Residential Lofts (Pawtucket, Rhode Island) back in 2020.
Upon further investigation, the EPA found after conducting an onsite inspection coordinated with the Rhode Island Department of Health that, among other alleged violations, American Wire was not a Rhode Island Lead Hazard Control licensed firm (the equivalent of an EPA-certified firm).
According to the EPA, this form of licensing is required for companies performing work that disturbs painted surfaces in housing built before 1978 presumed to contain lead.
In addition to these violations, the EPA also alleged that the company failed to ensure that a certified Lead Renovator was designated as the person responsible for oversight of each renovation project in a building being renovated for residential occupancy.
“Protecting childrens' health by reducing lead exposure is a major priority for EPA under the Biden Administration,” said EPA New England Regional Administrator David W. Cash. “Ensuring that renovation projects of homes and facilities where children can be exposed to lead are conducted safely is imperative. Lead poisoning can cause lifelong health, learning and behavior problems, and is entirely avoidable by employing safe work practices during renovation projects. This is even more important considering that many historically overburdened communities suffer from higher rates of childhood lead poisoning.”
Under the settlement, the firm paid a fine of $25,000 and has come into compliance with lead paint laws.
The EPA went on to share in its news release that the latest action is the second mill conversion project for which the EPA has pursued enforcement and reached a settlement related to alleged lead paint law violations against Brady Sullivan Properties LLC or one of its associated companies.
A 2017 settlement involved a mill restoration project in Manchester, New Hampshire, where the EPA also issued a non-penalty administrative order to Brady Sullivan for its alleged failure to provide the EPA with prior, written notification before work began, as required by Clean Air Act demolition and renovation standards known as the “Asbestos NESHAP” regulations.
“EPA has pursued actions against a number of companies for alleged RRP violations over the past several years,” said Joe Frasca, Senior Vice President, Marketing at EMSL Analytical, Inc. “This settlement is a reminder to renovation and construction companies that lead-based paints can be a costly and serious exposure risk for workers and building occupants if the proper safety precautions are not taken.
“Fortunately, identifying lead hazards in homes and buildings is quick, convenient and affordable. EMSL Analytical, with laboratories across the United States and Canada, provides environmental and material testing services for lead and other regulated materials. We also offer sampling supplies, easy-to-use test kits and personal protective equipment. These services and products protect workers, the public, and help to keep companies in regulatory compliance.”
Lead Paint Standards, Safety and Enforcement
Back in 2008, the EPA released the Lead-Based Paint Renovation, Repair and Painting Rule. The RRP (amended in 2010 and 2011) aimed to protect the public from any and all lead-based coating hazards associated with renovation, various repairs and activity.
The RRP rule protects residents of pre-1978 homes from lead-based paint disturbed during renovation, repair or painting activities. The rule requires that firms that perform or offer to perform renovations in pre-1978 houses need to be certified by the EPA and assign individuals who have been trained to use lead-safe work practices; disclose important safety information to residents prior to the work; and document their compliance with the rule.
The rule officially went into effect on April 22, 2010.
In 2009, petitioners requested that the EPA provide more adequate protection for children by providing more stringent lead paint standards. By 2011, the EPA acknowledged this need but failed to provide a timetable or made any moves to propose a new rule.
By June 2018, the EPA released another proposal to the dust-lead hazard standards; the action was stemmed from a December 2017 ruling by the U.S. Court of Appeals for the Ninth Circuit, which ruled that the agency must reevaluate the risks from lead paint.
According to the EPA, lead-contaminated dust from chipped or peeling lead-based paint in homes built prior to 1978 presents one of the most common causes of elevated blood lead levels in children. Infants and children are especially vulnerable to lead paint exposure because their growing bodies absorb more lead than adults do, and their brains and nervous systems are more sensitive to the damaging effects of lead.
The June proposal was reportedly in response to a lawsuit filed in August 2016 against the EPA by a coalition of environmental and community-led organizations, who charged that the EPA had duties to uphold regarding the TSCA and its amendments contained in the Paint Hazard Act.
In June 2019, former EPA Administrator Andrew Wheeler and U.S. Housing and Urban Development Secretary Ben Carson announced new standards for lead, specifically found in dust on floors, windowsills and miscellaneous surfaces to protect children from its harmful effects.
To continue to protect children’s health and make progress on the dust-lead issue, the EPA lowered the dust-lead hazard standards from 40 micrograms of lead per square foot to 10 micrograms per square foot on floors and from 250 micrograms to 100 micrograms on windowsills.
The new standard applies to all inspections, risk assessments and abatement activities in various hospitals, childcare facilities, certain schools and housing built before 1978.
In January 2021, the final rule to lower the clearance levels for lead that can remain in dust on floors and windowsills after lead abatement was approved and the new standards were incorporated into the Section 402/404 lead-based paint activity regulations as well as the Section 1018 real estate disclosure regulations.
By October, the EPA announced that it had launched a new training initiative, Enhancing Lead-Safe Work Practices through Education and Outreach, in Southern California communities.
The new program aims to raise awareness about childhood lead exposure and protect environmentally overburdened and underserved communities across the nation from lead exposure. The initiative arrives in accordance with the Biden-Harris Administration’s commitment to advancing environmental justice.
The two-pronged approach to reducing lead exposure includes the following initiatives:
In November, the EPA announced plans to hold property management companies (PMCs) responsible for lead-based paint safety requirements. The notice intends to improve compliance and strengthen enforcement of the lead-based paint RRP Rule and the TSCA as they apply to PMCs that perform, offer or claim to perform regulated renovations without certification from the EPA in pre-1978 housing or child-occupied facilities.
On Nov. 4, the EPA published the notice in the Federal Register. However, to hold PMCs accountable for the lead-based paint safety requirements, the EPA must first withdraw previously published answers to two Frequently Asked Questions (FAQs) concerning property management companies and their compliance responsibilities under the TSCA and RRP rule.
The intention to remove the FAQs answers was included in the Nov. 4 notice. There, the EPA explained its rationale for the withdrawal, in addition to the circumstances where PMCs are required to obtain certification from the EPA and ensure that renovations in the homes they manage are performed by certified firms and employees trained to use lead-safe work practices.
According to the EPA, this measure is especially important to underserved and overburdened communities, which often include a high proportion of rental housing managed by PMCs and the military community, where family housing is also often managed by PMCs.
Following the public’s 30-day comment period, the EPA planned to post a memorandum that states whether the withdrawal will take effect as planned, on March 19, 2022.
More recently, in June, the U.S. Department of Labor’s Occupational Safety and Health Administration published an Advance Notice of Proposed Rulemaking to revise its standards for occupational exposure to lead.
According to the news release, recent medical studies on workplace lead exposure revealed that adverse health effects could occur in adults at lower blood lead levels than what was previously recognized in the medical removal levels specified in OSHA’s lead standards.
To reduce the triggers more effectively for medical removal protection and medical surveillance, as well as to prevent harmful health effects in workers exposed to lead, the ANPRM is looking for public input on modifying current OSHA lead standards for general industry and construction.
Specifically, OSHA is requesting that the public comment on the following areas of the lead standards:
In addition, the Administration is planning to collect comments on employers’ current practices to address lead exposure, associated costs and other areas of interest. Online comments are to be in reference to Docket No. OSHA-2018-0004 and are due by Aug. 29 on the federal e-Rulemaking portal.
And last month, JPCL Editorial Advisor, Alison B. Kaelin, outlined some of the expected lead paint standards updates and directed where industry stakeholders can go to submit comments and get more information in August’s Perspective, “Finally! OSHA Provides Advanced Notice of Proposed Rulemaking for Lead Standards.”
Other Recent Lead Paint Cases
In January, the United States Attorney’s Office for the Southern District of New York announced that a civil lawsuit had been filed against CISNE NY Construction, Inc., CISNE JE Construction, Inc., CISNE Contracting, Inc. and their principals Jose Pancha and Edison Ruilova (together, the “CISNE Defendants”) for violating lead-based paint safety regulations.
The suit was filed by U.S. Attorney Damian Williams and the U.S. Environmental Protection Agency’s Regional Administrator Lisa Garcia.
According to the Department of Justice, the CISNE Defendants repeatedly violated the federal Toxic Substances Control Act (TSCA) and the EPA’s RRP Rule. Both the TSCA and RRP Rule outline safety requirements designed to minimize young children, tenants and renovation workers being exposed to toxic lead paint dust created during residential building renovations.
Filed in Manhattan federal court, the complaint alleges that the CISNE Defendants repeatedly failed to use legally required safety precautions when renovating apartments that had been presumed by law to contain lead paint, having been built prior to 1978.
According to inspectors from the EPA and the New York City Department of Health and Mental Hygiene, during a jobsite visit officials found that the CISNE Defendants failed to contain debris and dust during their work. A known exposure hazard, the inspectors reported that construction dust was found not just in the units being worked on, but also in the public hallways accessible to other building residents.
After sampling the hazardous material, officials reported that lead contents found in the dust exceeded both local and federal safety standards.
In addition to failing to contain dust and debris during renovations, the CISNE Defendants have also been alleged of failing to post warning signs at the residential jobsites receiving renovations or taking other steps required by law to protect tenants and workers. As a result of the discovered negligence, the EPA and New York officials report the CISNE Defendants ultimately risked exposing tenants and workers to lead paint dust and had violated TSCA and the RRP Rule.
Upon conducting further investigations, the complaint also includes an additional allegation against the CISNE Defendants, claiming that for years the defendants performed renovations in New York City apartment buildings without the required training or certifications.
This was included in the suit after CISNE Defendants failed to provide EPA with legally mandated records that would allow EPA to audit their work.
In the suit, officials are seeking an injunction barring the CISNE Defendants from performing further work governed by the TSCA and the RRP Rule without complying with mandated safety requirements. The suit also seeks an order requiring the CISNE Defendants to mitigate the harms caused by their prior illegal renovation work.
The case is being handled by the Environmental Protection Unit of the Office’s Civil Division. Assistant United States Attorney Zack Bannon is in charge of the case.
In July, New York Attorney General Letitia James recently announced an agreement involving a Syracuse, New York-based landlord and their company for failing to protect children from lead paint hazards.
The lawsuit, filed in the Supreme Court of the State of New York in Onondaga County in October 2021, alleged that John Kiggins and his company, Endzone Properties, Inc., endangered the health of their tenants by repeatedly violating lead paint laws and failing to mitigate the issues.
According to CNY Central, between January 2015 and July 2021 inspectors from the Onondaga County Health Department and the City of Syracuse Division of Code Enforcement cited 32 properties owned by Endzone Properties for chipping, peeling, and deteriorating paint and other conditions conducive to lead poisoning.
The violations are prohibited by county and city laws.
As a result of the lead poisoning of 18 children, Kiggins and Endzone Properties were permanently banned from managing or owning residential rental properties in New York. The agreement was reportedly negotiated in partnership with Onondaga County and the City of Syracuse.
In addition, Kiggins and his company are required to pay $215,000. According to CNY Central, the money will be used to prevent the exposure of children to lead paint in Syracuse and Onondaga County and will also aid families affected by lead poisoning.
Since the agreement was announced, it was reported that all properties owned by Kiggins and Endzone Properties have been sold and are currently under new management. Reports add that all violations found in the OAG investigation, in addition to those flagged by city and county officials, have been resolved in the properties that are currently occupied.