Feature
by Fredrik Emilson
Lead is a highly toxic metal that, when absorbed by the body, may cause a range of health problems, from behavioral disorders and learning disabilities to seizures and even death. Young children are particularly at risk because they absorb more lead than adults, and their brains and nervous systems are more sensitive to the damaging effects of lead.
Lead was common in paint before it was banned in 1979. While lead-based paint in good condition is usually not a health hazard, peeling, chipping, chalking or cracking lead-based paint is a hazard. The body absorbs lead in the form of paint chips or lead dust, which are either inhaled or swallowed. Lead dust can form when lead-based paint is dry scraped, dry sanded or heated. Settled lead dust can later re-enter the air when people vacuum, sweep or walk through the dust.
Thus, even lead-based paint that is in good condition can become a hazard when it is disturbed, such as during a renovation project, and there are both local and federal laws which regulate activities that disturb or remove painted surfaces on pre-1979 buildings. Aside from the health hazards involved when disturbing lead-based paint, these regulations carry penalties for those who fail to comply with the applicable safety and notice requirements.
In San Francisco, where an estimated 90% of houses built before 1979 contain lead-based paint, it is important for landlords to be aware of the notice and safety requirements that apply any time lead-based paint is disturbed or removed.
Notice Requirements
Section 3407 of the San Francisco Building Code regulates work that removes or disturbs lead-based paint on pre-1979 buildings (“lead work”). When the code section was enacted in 1998, it covered only lead work on exterior surfaces, but in 2004 it was amended to also include work on interior surfaces in most residential dwellings, including apartment buildings and single-family homes. (Exception: lead work on interior surfaces in an owner-occupied unit is exempt as long as paint chips or dust do not migrate outside the dwelling unit.)
Oftentimes the owner of a pre-1979 building does not know whether or not the paint is lead based. The building code, however, creates a presumption that any paint in a pre-1979 building is lead based. An owner who wishes to rebut this presumption has the burden of proof to establish that the paint is not lead based, which usually means testing by a third-party lead abatement expert—generally a costly proposition.
The building code contains the following notice requirements for lead work
- 1. Notice to the City
Before commencing lead work, the owner or contractor must notify the director of the Department of Building Inspection (DBI) in writing of the details of the anticipated project, including scope, location, dates, and methods and tools to be used. (Exception: work that affects less than 100 square feet is exempt from this notice requirement.) - 2. Notice to Occupants
Even if the owner has hired a contractor, it is the owner’s responsibility to provide written notice to residential occupants of the intended project, as well as a copy of the U.S. Environmental Protection Agency (EPA) pamphlet “Protect Your Family from Lead-Based Paint in Your Home” (available from SFAA) at least three days before commencing lead work on a residential building. (Exception: the lead work may be commenced within the three-day notice period if the owner determines that the work must begin immediately in order to correct life-safety hazards, or upon written request by the residential occupant.) - 3. Notice to the Public
Before commencing lead work, the owner or the contractor shall post signs at the subject property that indicate lead work is in progress. The signs must be posted so that they are visible at the entrance points to the affected areas (for interior work), or visible to adjacent properties (for exterior work). The sign(s) must be at least 24 square inches and have boldface capital letters. DBI provides signs that comply with these requirements. If it is not possible to post signs in a conspicuous location, notice shall be given in the form of a letter of memorandum to the occupants of the adjacent properties.
Safety Requirements
Once proper notice has been given, the building code imposes the following safety requirements for lead work.
- 1. Restrict Access
Unless the affected area is the only means of access or egress, the owner or contractor must restrict third-party access to the affected area. If access must be allowed, dust generation and migration must be controlled as feasibly as possible, using containment and barrier systems. Because access must be restricted for the duration of the work, tenants must sometimes be temporarily displaced from their unit during a lead-work project. The San Francisco Rent Ordinance provides just cause for a temporary eviction of tenants for general capital improvement work, which may include lead work (90 days to complete the work), or specifically lead-abatement work (30 days to complete the work). In either event, the termination-notice period is currently 30 days, so the landlord should plan ahead if it is apparent that the tenants cannot safely stay in possession during the work period. - 2. Prevent Dust Migration
The owner or contractor must take steps to prevent the migration of paint chips or dust from the work area by establishing “containment and barrier systems.” Containment and barrier systems usually refer to disposable polyethylene sheeting that is used to cover the floor and furniture, and to seal windows, doors and ventilation openings. - 3. Prohibited Practices
In addition to the required safety measures, the following practices are prohibited: open-flame burning or torching; heat guns without containment and barrier systems, operating above 1,100 degrees Fahrenheit or causing paint to char; hydroblasting or high-pressure washing without containment and barrier systems; and dry, manual sanding or scraping, machine sanding or grinding, or abrasive blasting or sandblasting without containment and barrier systems or a HEPA vacuum local-exhaust tool. - 4. Clean Up
After completion of the lead work, the owner or contractor must make all efforts to remove all visible paint chips and dust by, at a minimum, wet cleaning with detergent and a HEPA vacuum. For exterior work, the manner of cleaning is not specified, only that the owner/contractor “make all efforts to remove all visible” paint chips and dust.
Penalties
Usually, before imposing any penalties, DBI will issue an abatement order, requiring the owner/contractor to correct any condition in violation of the above discussed requirements.
Failure to comply with an abatement order in a timely manner may result in a penalty of up to $500 per day until abatement is completed. In addition, fees may be assessed to cover reasonable costs in enforcing this penalty. This penalty is assessed against the owner or, if the owner has hired a contractor to carry out the lead work, against both the owner and the contractor. Note that the owner is never free of responsibility for compliance, even if the owner has engaged a licensed contractor for the lead work.
As an alternative to the monetary penalty, and at the DBI director’s discretion, the owner/contractor may be required to attend a state-approved training course in lead-related construction.
If an owner/contractor persists in failing to comply with an abatement order, the director of DBI may refer the matter to the city attorney’s office for civil prosecution, in which case the owner/contractor may be liable for all attorneys’ fees.
Federal Notice Requirements
There are also federal rules, enforced by the EPA, that apply to lead work. The federal rules largely mirror the building code provisions. One notable difference is that the EPA has certain specific requirements, absent in the building code, relating to service of the pamphlet “Protect Your Family from Lead-Based Paint in Your Home.” The EPA requires that, if the pamphlet is served via mail, it be mailed at least seven days prior to commencement of the work (which is more than the three days required by the building code). The EPA further requires that the owner/contractor prepare a written certificate documenting the date and manner of service of the pamphlet.
Resources
The following are some resources for information on lead-based paint, lead work and lead abatement.
- DBI website with forms and information regarding lead abatement:
www.sfgov.org/dbi - EPA website with lead information and downloadable pamphlets:
www.epa.gov/lead - Locate certified lead experts:
cfpub.epa.gov - DBI Lead Hazard Reduction Program:
(415) 558-6598 - How to dispose lead-paint contaminants:
(415) 330-1425
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. Fredrik Emilson is a principal with Cornerstone Law Group and can be reached at fred@cornerlaw.com or 415-357-2099. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.