Feature
by Tim Carrico
Remember the good old days? Back before mold was the gangsta rap of the American Housing Hysteria Hit Parade? The tune was simpler then. Property owners were mainly concerned about the basic elements, not a cacophony of omnipresent microorganisms that were generally benign yesterday, but today could be the cause of everything from sniffles to teenage pregnancy. Now, like 80s music, lead is back—without the vengeance that accompanies the latest toxic du jour or a tune from Big Sloopy the Rappin’ Pit Bull.
A newly proposed ordinance that further regulates how property owners and contractors handle surfaces with lead-based paint will be released shortly for public comment and review. The proposal essentially extends the current requirements for handling exterior lead-based paint surfaces—using lead-safe work practices and controlling the migration of debris—to interior work.
Legislation sponsored by former San Francisco supervisor Kevin Shelley and enacted in 1993 ordered the creation of a Citizen’s Advisory Committee (CAC) charged with the responsibility of drafting legislation designed to reduce the incidence of childhood lead poisoning. The committee was formed in 1994, and I was appointed as one of two property-owner representatives. The other current property owner representative is David LaCounte, a realtor and property owner. The CAC also includes members representing tenants, contractors, painters, environmental health specialists, the Departments of Health and Building Inspection and other interested parties.
Two ordinances drafted by the CAC have already been enacted into law in San Francisco. The first, called the Case Response Ordinance, became law in 1996. It addresses what happens when a child is found to have lead poisoning. Thirty to fifty such children are identified each year in San Francisco.
The second ordinance, known as the Exterior Work Practices Ordinance, became law in 1997 and affects far more property owners than the first ordinance. This law requires owners and contractors to use proper work practices or techniques when disturbing exterior lead-based paint, to control and dispose of the dust and debris and to follow certain notification requirements. The most obvious notification requirement is the sign you see posted on an exterior paint job stating “Lead Work in Progress.”
For rental property owners, the proposed ordinance is a good news/bad news event. The bad news is that owners and contractors must be aware of and comply with yet another legal requirement. The good news is that these requirements could have been, and almost were, far worse than what is presently proposed. For those of you not familiar with the history of lead-based paint legislation in California, some background information will help put things in perspective.
As almost everyone knows, lead is a toxic substance if ingested by humans. Lead was used as a key ingredient in paint for over a hundred years, until its use was banned in 1978. When old paint deteriorates from age, weathering, and moisture problems or is disturbed by scraping or sanding, dust and particles containing lead settle on floors, windowsills and other horizontal surfaces as well as in the soil surrounding buildings. Children, during their early development, from ages two to five, can ingest enough particles to become lead-poisoned when their hands and virtually everything else they handle enters their mouths. The human body has no use for lead and studies have found that even low levels of lead in a child’s body can cause learning and behavioral problems and if the level is high enough, severe physical illness.
Concern about childhood lead poisoning came fairly late to California. Several East Coast states, most notably Maryland and Massachusetts, have had onerous laws in place for many years that require the complete or partial removal of lead paint from buildings. Removal or abatement of lead paint is very costly and not really necessary. The cost can be so prohibitive that some owners in those states reportedly abandoned their properties, because the cost of paint removal exceeded the economic value of their buildings.
By the early 1990s, when the issue began to receive attention in California, the generally accepted wisdom no longer held that removal was a good idea, and instead the trend in most cases emphasized a management-in-place approach. This was certainly good news for California property owners, who recognized that at least some of the excesses visited upon other states might not be repeated here. However, an even more enlightened understanding of this problem also could dictate that there is no point in being concerned about lead dust on the apartment floor of a household with no children present. The presence of lead dust or lead paint chips is not harmful to adults who are not ingesting them.
Lead dust and paint chips are slowly but steadily generated as paint naturally deteriorates from weathering and old age and by the ongoing wear and tear of the normal usage of buildings. On the other hand, dangerous levels of lead can be quickly generated when paint is scraped and sanded and building components demolished during a painting and/or remodeling project. From the beginning of the process in San Francisco, all involved parties agreed that efforts to reduce childhood lead poisoning should focus on halting the migration of lead debris when work is done on buildings. If work was to be required on occupied apartments, there was also agreement that resources should focus on apartments where children or pregnant women resided.
While San Francisco began to design its own strategy for reducing childhood lead poisoning in a city with a high concentration of old buildings containing high levels of lead-based paint on both the exteriors and interiors, efforts were underway in Sacramento to pass a statewide ordinance regulating exposure to lead-based paint. Two major bills, SB2080 in 1996 and AB481 in 1997, were introduced in the state legislature and the latter was even co-sponsored by a state apartment-owner organization that will remain nameless. Both of these bills would have required property owners to make all occupied apartments lead safe. In other words, an owner would have been required to have every apartment and all accessible common areas inspected by a third-party certified expert who would verify that no lead hazards such as peeling or otherwise damaged paint existed. In older, cluttered apartments the cost of achieving this level of perfection would have proven enormous, while failing to yield any health benefit whatsoever if young children were not residing in or frequently visiting the apartment. This is one situation where actually pouring your money down a rat hole may have provided a greater health benefit, since maybe the wad of bills might have kept the rats in their holes and out of the environment.
Luckily for everyone involved, except perhaps the then budding lead-inspection industry and plaintiffs’ attorneys, these bills did not garner enough votes for approval. In the meantime, the State Health Department adopted some regulations that were apparently created in a vacuum of real world information. Most property owners in the normal course of business can probably avoid these. In addition, the presence of lead hazards in housing that expose residents to lead in an ingestible form has been added to both state and city codes as a nuisance. The recognition of this condition provides a governmental agency with the power to cite it as dangerous or potentially dangerous and to require remediation when appropriate.
In contrast to the regulations that have been introduced in the past at the state level, the proposed regulations the CAC will soon release are fairly simple and straightforward. They will require people who do work that disturbs paint in occupied apartments or in the common areas of apartment buildings, rented homes, condominiums, and child-care facilities to perform the work in such a way that prevents lead debris from migrating from the work area to other areas of the property. It also requires that the work area be left clean and free of debris and lead dust when the work is completed. These regulations will apply to buildings constructed before 1978, unless there is documentation through appropriate testing that the property or the working portion of the property does not contain any lead-based paint.
What this means in practical terms is that workers must use lead-safe work practices. They also must provide adequate containment in order (1) to retain all debris and dust generated within the contained area while work continues and (2) to subsequently remove it from the premises when work is completed. Safe work practices are best described by defining the prohibited work practices: “any work practices that disturb or remove lead-based paint which causes the uncontrolled creation of lead hazards including, without limitations: open flame burning or torching; machine sanding or grinding without containment barriers or a HEPA local vacuum exhaust tool; hydroblasting or high-pressure wash without containment barriers; abrasive blasting or sandblasting without containment barriers or a HEPA local vacuum exhaust tool; heat guns operating above 1,100 degrees Fahrenheit (611.1 degrees Celsius) or charring the paint; dry sanding or dry scraping without containment barriers or a HEPA local vacuum exhaust tool, except dry scraping in conjunction with heat guns operating below 1,100 degrees Fahrenheit….”
A HEPA vacuum is one with a special filter that will prevent lead dust, as well as other contaminants such as asbestos, from being released back into the atmosphere in the exhaust air of the vacuum machine. HEPA vacuums are now available from tool dealers and are reasonably priced. Tools such as sanders are available that can connect directly to a HEPA vacuum so that the dust created is pulled directly into the vacuum unit. Containment can range from a few feet of plastic spread on the floor beneath an area where a hole is drilled into a baseboard to an airtight version of a room created with plastic sheeting and duct tape to protect the tenants using a common hallway to get to and from their apartments while paint is sanded in the area.
At the completion of interior work that disturbs lead-based paint, exposed horizontal surfaces in occupied areas should be wet cleaned with a detergent and vacuumed with a HEPA vacuum to ensure that no lead dust is left behind. The proposed regulation does not require clearance testing of the work area after the job is completed. However, if young children are in the unit and/or common areas where work was performed, I would recommend that an owner or management company hire a certified inspector to do the testing to be certain the cleaning performed was adequate. If the test results do not meet the minimum standards set by the city then you would just go back and re-clean the area and test again. An owner or management company can easily learn how to do the dust testing protocol themselves, have the samples tested in a certified lab, and keep the records of the results in their files. The cost of the dust sample lab tests is quite reasonable. This do-it-yourself approach does not meet any established legal standard and might not mean anything in court, but it would help give you peace of mind knowing the job was probably done correctly and it would show the exercise of a higher standard of care than is required.
While on the subject of testing, I do not recommend that an owner conduct a paint test to determine if the paint contains lead, unless he or she is fairly certain ahead of time that it does not contain lead and wants to establish that fact in order to be exempt from these ordinances. The reason for this is the incredibly poor design of the EPA Lead Disclosure form that owners are required to provide to all renters and purchasers. That form, and its underlying law, requires an owner to inform future renters and purchasers if lead paint has been positively identified by means of testing and to provide all future renters and purchasers with a copy of the written test results. I think it is highly unlikely that an owner and all successive owners will remember forever that such a test was performed in the past, let alone find it decades later, and then remember to provide the written report to the renter or buyer. If they do forget, then the owner will have Violated Federal Law and be subject to stiff fines and penalties—as if the written report would mean anything to a buyer or renter anyway, since practically all of the older buildings in San Francisco have similar amounts of lead-based paint. Someone is not going to run screaming out of a toxic apartment and then rent another one in the building next door, because that apartment will be virtually identical in terms of its lead-based paint content.
No special permit or notification to the Department of Building Inspection will be required for interior work other than building, plumbing and/or electrical permits that would normally be required anyway. Tenants would have to be notified three business days before work begins for jobs that are planned in advance. Notification, lead-safe work practices and/or containment will not be required for work in vacant apartments other than the responsibility to keep any generated lead debris from migrating outside the vacant apartment to the common areas or into other occupied apartments. The latter will require more care than is currently used in order to keep workers from tracking dust and debris outside the vacant apartment, but it can be achieved through training and browbeating.
The final draft of this new ordinance will probably be approved within the next couple of months. Public hearings will then be held to get feedback from property owners, contractors, tenants and other interested parties. Further amendments may be made based on the information received, so if you have an opinion, let it be known. The SFAA will try to let members know when the public hearing will be held.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. Tim Carrico is owner of TCO, a property management and real estate firm in San Francisco.He is a past president of the SFAA and a former Rent Board Commissioner. He can be reached at 621-1600. Copyright ©2003 San Francisco Apartment Magazine