Will Third Party Dust Sampling Be Mandatory?

The countdown to the July 15 announcement is getting shorter and we are hearing some confusion regarding the need for an independent third party to do dust sampling clearance testing.  In its proposal, the EPA realizes that the person doing the lead clean-up should not be the person to check his own work. This is a departure from the Visual Clearance testing presently required where the Certified Renovator, responsible for the cleanup, is also the person responsible for the Cleaning Verification. EPA’s RRP procedures have always been based on HUD’s Lead Safe Practices and HUD is clear on who should and should not do dust sampling. From HUD’s Lead Safe Work practices standards: Conflicts of Interest: The owner should retain the services of a certified risk assessor or a certified inspector technician to determine compliance with clearance criteria. The clearance examiner must not be paid or employed, or otherwise compensated by the lead hazard control contractor and should have no vested interest in seeing that the job is completed on schedule. The clearance examiner’s only concern should be that compliance with clearance standards has been achieved. This does not mean that job supervisors should not perform their own visual assessments of the quality of the cleanup job performed by their workers. Such assessments will help ensure that clearance criteria are met the first time around. Some owners of multiple dwelling units may wish to have lead hazard control work performed by their own trained crews, rather than contract for such services. In this case it is essential that clearance testing be performed by an independent third party whose payment is not dependent on completion of the job within any particular time period. Lead Safe Work Practices are not 100% governed by EPA as each state and locale can enforce their own rules. For example, in New York City, they are clear on how they want dust sampling done: From New York City Law, 24- “(cc)  Clearance dust testing requirements. No person shall perform a lead-contaminated dust clearance test in relation to such work unless such person is a third-party, who is independent of the owner and any individual or firm that performs the work. All personnel performing lead-contaminated clearance dust testing upon completion of work shall be trained, at a minimum, in accordance with regulations issued by HUD at 24 CFR 35. 1340(b)(1), or successor rule. For everyone affected, you should check with your state and locality to be sure what the rules are where you work. True to form, the EPA offers a not-so-clear approach, which in essence, splits the difference between independent and self-clearance. From the EPA’s Proposed changes to the RRP Rule: Persons performing visual inspections, collecting dust wipe samples, or analyzing dust wipe samples would not be required to be third parties independent of the firm performing the renovation. This is consistent with the final RRP rule and EPA's abatement regulations. EPA has historically not required independent third parties to perform testing for two reasons. The first is the cost savings and convenience of being able to hire just one firm to perform all necessary lead-based paint activities. The second is the potential regional scarcity of firms to perform the work. As discussed in the preamble to the final RRP rule, these considerations are also likely to be applicable to the renovation sector (Ref. 1, at 21711). EPA does recommend, however, that the renovation firm comply with the HUD's prohibition against the same person performing both the renovation activity and the clearance process. Under this proposal, dust wipe testing would be performed after cleaning verification, not instead of it. Cleaning verification is useful because it combines fine cleaning properties with feedback to the certified renovator on the effectiveness of the post-renovation cleaning process. So it’s kind of, good news - bad news: The good news is you may not have to find an outside firm able to do the work. The bad news is that you will have to become the firm that can do the work.

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