2009 Enforcement Update

1. 2009 Enforcement Update Dan Lince linced@michigan.gov 517-335-8108 Dan Lince linced@michigan.gov 517-335-8108

2. Notable Events: • New Enforcement Person • James (Jim) Copeland

3. Jim’s job: • Primarily assigned to enforce Michigan’s Pre-Renovation Education rule. • Jim will also do enforcement for lead abatement and lead identification professionals. • Answering tough questions: • Direct line:517-241-6486 • copelandj3@michigan.gov

4. Notification Form modified to include Housing Agency info Available at www.michigan.gov/leadsafe and in the back of the room

6. Notable Events: • United States vs. Wallside, Inc. • Pre-Renovation Education (PRE) case started by HHS in mid-2006 • Settlement for tens of thousands of violations of the Pre-Renovation Education rule • Healthy Homes Section, Michigan Attorney General, MDCH Office of Legal Affairs, US Environmental Protection Agency, US Dept. of Justice

7. Settlement Agreement • Consent Decree in United States vs. Wallside, Inc. was lodged June 24, 2009. • 30-day comment period ended with few or no comments. • Case closed.

8. United States vs. Wallside, Inc. terms of settlement: • $100,000 fine. • $350,000 worth of windows to HHS’s Lead Safe Housing Program. • Conduct their work in a lead safe manner ahead of similar requirements for all renovation work coming in April 2010 via the EPA’s Renovation, Repair, and Painting (RRP) Rule.

9. And now... Dear Dan: (Wes, Jay, or Jim)

10. ? “Hi Dan, “I heard a rumor from contractors. They state that risk assessors are no longer sampling basement floors with dust wipes, that the clearance in the basement is now a visual clearance. “Can you tell me if this is true? “I just want to know the facts, if this rumor is true, it could very much impact the dollars on many jobs. Thanks!”

11. RESPONSE: “As for that rumor, it is has elements both true and false. At the 2007 HHS Contractor's Workshop, we released the latest edition of the program's interpretive guidance. Item #50 reads as follows: (#50) Getting a passing clearance on a basement floor can be very difficult even when standard cleaning practices are used, does the normal 40μg/ft2 clearance standard apply?

12. “The best practice for a lead hazard control firm wishing to avoid a possible clearance of a basement floor is to contain off the basement from the rest of the work area, if no basement work has been done... However, ...HHS will allow a visual-only clearance to be conducted. To qualify for the modified clearance for unfinished basement, the space must meet all of the following: 1. The basement is unfinished. 2. The basement is used primarily for storage or utilities with no evidence that occupants use the space for living or recreation. 3. The basement is essentially inaccessible to children residing in the home.”

13. “In instances where the basement fails to meet any one of these criteria (i.e., a finished basement or a basement with play areas), normal clearance procedures and standards apply. “This modified clearance...is optional for clearance professionals. It is for the clearance professional to make the final determination of whether or not the basement applies... or whether to apply normal clearance standards. If uncertain, the clearance professional may seek the advice of the section in this determination.” (08/15/2007)

14. “As you can read, the conditions set for the optional visual-only clearance of basements is not as simple as the contractors portray. And certainly not the case that "risk assessors are no longer sampling basement floors". In fact, by the time all three conditions were met, it was assumed that many more basements would still fall under normal clearance practices... than would not... “... when choosing where to collect dust wipes, clearance professionals need to evaluate the benefits of taking them off a floor in a space that is seldom accessed... Naturally, if work had occurred in the basement and this area is finished and/or frequently accessed, especially by the children, then these areas are wide open to dust wipe samples and a visual inspection. The clearance professional will make that determination.”

15. ? “Good Afternoon Dan, “We have a potential LRA to be completed for a proposed preschool. The issue is that the proposed preschool is in an existing two floor central school building which is connected to an auditorium and to the high school via a glass connector hallway with fire doors at both ends. ... “I do not see any way that we can only do a LRA for the preschool room and the hall which will be used. However, after reading the regulation, it appears that a partial LRA is possible with the approval of the healthy homes. “I am wondering if a partial LRA which includes the entire two storey central school building along with soil sampling surrounding the building and specifically the proposed preschool play area could be approved by Healthy Homes Section. What would not be included is the adjacent high school. A floor dust wipe sample from within the glass building connector hall could be added if needed. “Thank you for your input on this matter. Best Regards,”

16. ? “As far as I have understood it, the dust wipe clearance levels of 40 mg/ft. for floors and 250 mg/ft. for sills are for INTERIOR dust wipe clearances. I have always understood it to be that exterior work was cleared by a visual inspection per R325.99407(6) and my training classes. “If I run into a situation... where an inspector/risk assessor collects a clearance dust wipe sample on the EXTERIOR surface of a home (let's say a non-enclosed back porch floor with only a roof and the contractor did work on the ceiling and they passed a visual clearance ), are the above levels enforceable and the contractor would them have to address them? “...Also, in answering this question, would it make any difference if an EBL-child occupied the home?”

17. RESPONSE: “Hi. Yes, the dust wipe clearance levels are established for interior dust wipes only. There are no exterior dust wipe standards... So, if a risk assessor collects a dust wipe from an exterior surface, such as a porch or sidewalk, the results do not typically have the weight of a standard behind them. As with most things... you do not have to look far before a scenario arises where it makes sense to clear an enclosed porch or three-season room quantitatively... in homes where these areas were regularly and heavily utilized by the children in the home as dedicated or frequent play areas, sleeping areas in the summer, etc. “In situations like this, the professional judgment of the risk assessor to take clearance samples from these areas should be communicated beforehand to the abatement contractor so that they may reasonably anticipate this extra cleaning need. Obviously, this only works for enclosed or finished porches.”

18. RESPONSE: “I just wanted to add emphasis to Dan's comments about using professional judgment on issues involving enclosed and open porches. I do Risk Assessments for HHS and frequently come across lead issues in both categories of porches. It is my opinion that the Risk Assessor has the burden of applying professional judgment relative to how they perceive the use of the porch area and the degree of hazard the porch might pose.... enclosed porches often serve as entryways and are usually loaded with lead, which is why I often treat them as an interior room - i.e. floor dust wipes. “Can one enforce 40 mg/cm2 as a clearance measure? YES - if made part of the CONTRACT..... but not likely if relying only on State regs.” -Steve

19. ? “My second question concerns collecting exterior dust wipe samples for an EBL Investigation or risk assessment. If an investigator collects a dust wipe sample on the exterior and it is above the accepted dust levels, do I, as scope writer, have to make sure those exterior surfaces are addressed by the contractor as part of a HUD lead program? Would this make any difference is there was an EBL child versus a non-EBL child at the residence?”

20. RESPONSE: “As for your second question, it depends a great deal on where these samples came from. If they came off a sidewalk or an open porch, I'd say you had no regulatory imperative to address the issue as there are no exterior standards. These surfaces, particularly bare concrete, may never realistically achieve dust levels approaching interior clearance figures. “However, if the levels return extremely high, from a liability point of view, it might be prudent to spec in some cleaning to remove accumulated dirt and debris.”

21. ? “Lastly, are exterior soil clearance samples enforceable if collected using the limits of 400 ppm and 1200 ppm depending on where the soil samples were collected? “I would appreciate any input the State Lead Program would have on these items. “Thank you,

22. RESPONSE: “Lastly, on the matter of soil clearance, there is no requirement for soil sampling during a clearance. However, R325.99406(9)(a) states: (9) If soil abatement is conducted, the contractor shall perform the abatement in either of the following ways: (a) If soil is removed, replace the lead-contaminated soil with soil having a lead concentration no greater than the soil-lead hazard levels established by these rules for play areas.”

23. “So, when soil is abated, the rules require clean soil to be used. This implies pre-testing and assumes the soil hazard was found during the risk assessment, when soil sampling is required. The best way to handle this is to specify that replacement soil be clean and to state what proof, if any, the agency will want to see. When contaminated soil is simply covered, under interim controls, no clearance requirement beyond the visual assessment is required. If replaced soil is tested and found to have lead concentrations exceeding the appropriate standard, then R325.99406(9)(a) could potentially be used to leverage a change... “I think this answers most of your questions. Please call [JIM] if you have more.”

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