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By Daniel Swartzman and Rick Schoenfield Attorneys, Chicago. Ml. Laws and regulations aimed at decreasing health dangers from lead in the environment are nothing new. European countries banned the use of lead in residential paint in the nineteenth century, and states around the U.S followed suit a number of decades ago Of course, the U.S. Occupational Safety and Health Administration (OSHA) has, since 1978. had "general industry" regulations designed to protect workers from excess lead exposure in facilities where it is present in the workplace These standards, however, do not apply to single-family homes or to the construction activities in residential and industrial property that might produce excess lead exposures Federal and state laws and regulations, usually aimed at lead in already-applied residential paint, have been developing rapidly in the last few years. However, the newest federal law1 on lead-based paint, the Residential Lead-Based Paint Hazard Reduction Act of 1992, promises to produce a nationwide program of technological mandates and worker protection standards, training requirements, lead disclosures upon property transfer and public information and awareness. And even though the name of this new law focuses on residential lead-based paint, the programs it establishes will also apply to employers The new law is commonly referred to as "Title X" because it was:the tenth section of the Housing and Urban Development Act of 1992 It establishes sweeping federal response to preventing poisoning from leadbased paint. It's provisions mandate action by several organizations including: SHA HUD EPA National Institute of Occupational Safety and Health National Institute for Environmental Health and Safety U.S. Agency for Toxic Substances and Disease Registry U.S. Department of Health and Human Services Centers for Disease Control public housing authorities Indian housing authorities and the General Accounting Office Technological Mandates and Worker Protection Abating lead-based paint is still a relatively new industry without universally accepted work practices or technological approaches Title X gives the EPA unti1 ear!\ I90j to pvciuce guidelines for c -rcTching ir.i i dust od worker exposere ho- - develop an interim standard for protecting construction workers from exposure This standard will likely include a permissible exposure limit, allowable blood lead levels for workers, work practices, appropriate engineering controls, respiratory protection requirements and record-keeping mandates Title X also authorizes establishing a national laboratory certification program so that labs analyzing materials for the presence of lead will have to demonstrate proper analytical techniques and quality assurance programs The law sets out how lead inspections and abatement are to be conducted in federally owned housing, it also enacts a new title of the Toxic Substances Control Act on "Lead Exposure Reduction" under which federal regulations on appropriate abatement techniques and controls will be promulgated. Training Requirements Currently, most people performing lead inspections designing lead abatement jobs, or doing abatement contracting do not have to be formally trained in this work although a few states do have such requirements Title X sets up a national program for establishing a formal certification program on lead inspections and abatement It mandates the EPA to establish a model training program, similar to the Model Accreditation Program developed in 1987 for dealing with asbestos in schools. Part of the EPA's responsibilities will be to make sure that lead-based paint activities are conducted only by certified people who have received formal training from an EPA-approved training center This requirement applies to inspections, deleading, paint abatement, lead removal and demolition of residential property and public buiidings built before 1978. commercial buildings, bridges and any other structure or superstructure The EPA has designated five lead training consortia around the country to offer its four current courses. These courses are: Lead inspection. Lead proiect design * Abatement contractorsupervisor. Lead abatement wcriser Presumably the my he' program v.; y, i 3. m; ;ar : . m - i PA-appr.. . eo program and then delegate it to states for implementation. Disclosure on Transfer of Target Housing* The Residential Lead-Based Paint Hazard Reduction. Act mandates disclosure of lead information on the transfer of any target housing, defined as residential property built before 1978 This covers single-family and multiuni: dwellings, including apartment buildings. (Housing for the elderly and for the disabled is exempted unless children are routinely present; EPA and HUD have been given two years (from November of 1992. when the law was signed! to develop regulations implementing this disclosure requirement. Sellers and landlords will not be required to test for lead, but they will be mandated to disclose in writing what they know about lead in the housing. Therefore, if a property owner finds out about the presence of lead by virtue of a test conducted by a prospective purchaser, all future buyers must be told of the inspection s results The contract for sale and the lease will have a 10-day "contingency clause aLywung the purchaser or lessee to have the property tested for lead and giving them the opportunity to withdraw from the deal if it is found. The potential seller, or landlord, must give the other party a copy of the "Lead Hazard Information Pamphlet" that will be developed by the EPA. This disclosure requirement, coupled with mandatory blood screening programs being implemented around the country are likely to make lead inspections and concerns an integral part of virtually every noncommerical real estate transaction within the next couple of years Public Information and Awareness Implementation of the worker protection and the training require ments of the law might have some impact on public awareness of lead contamination problems The dis closure on transfer requirement will stimulate such interest as it is designed to do In addition Title X mandates that a nationwide public awareness and education campaign be implemented by 'IT A All of these programs combined will ha-.e 'ess i^trsc' r n,ur:,c artem-on to ieaci yc -ssuec than wii! at .... Ut.g . :' e' f ' 'stance DCSTR before entering elementary school, day care or nursery sdfiool. During the program's first three months, over 6,000 children were identified with elevated blood lead levels. And this does not take into account the hundreds of thousands of children who will be tested this fall before entering school. Media coverage of the expected results from later summer's testing should provide an extra ordinary stimulus for public awareness Title X requires'that the federal government conduct a number of studies on things like insurance availability, lead measurement and abatement techniques and health effects. These will also add to growing public awareness and concern over childhood poisoning from lead-based paint, soils, drinking water and plumbing fixtures. As more poisonings are found, the likelihood of toxic tort lawsuits will increase dramatically. Title X encourages enforcement of its provisions by setting out public and private enforcement mechanisms. This holds out the possibilities of winging parties in private enforcement actions being awarded attorney fees and treble damages While it is too soon to predict a repeat of the asoestos litigation deluge in the lead litigation, it is not hard to imagine how mandatory screening programs, new federal disclosure regulations and awareness programs under Title X and new state laws and regulations could lead to a substantial number of lead-related tort cases. Everyone involved in a lead-related industry would do well to keep track of these developments and consult with counsel to engage in a preventative law program that can prevent or minimize future liability At a minimum, this program should audit past or present practices that might incur liability and compare regulatory developments with current standards and practices that might give rise to future liability It also should analyze alternative measures to current practices and institute a thorough record-keeping program to establish bona fide movement toward protecting the health of workers consumers and the public Everyone involved w:;i need to monitor developing regulations and programs imder the Res demial Lead- Ps'fd Pa nt H-zard Reduct ">r Act and .-.atch m- ccmpieme'ma-y r --obiy . m c'-ng ; 'urt ruling' 7 ' - - me "ev.-m' 3v. m hi: the mm m 3.: r-m=mg -- -1 1 . " ng ov ' 49 TOC 001959 37