North Carolina Lead Law
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In 1997 the North Carolina General Assembly adopted the Childhood Lead Exposure Control Act that established a new lead-based paint Preventative Maintenance Program (PMP). The PMP is a voluntary housing maintenance standard that encourages lead-safe renovation, remodeling, and maintenance in rental housing built before 1978. Property owners participating in the PMP receive liability relief from potential lead poisoning litigation. To participate in the PMP, owners must maintain their property in accordance with specific standards developed to prevent lead poisoning; provide written material to tenants on preventing lead poisoning; and verify compliance through an annual onsite monitoring inspection.
Owners seeking to comply with the PMP must take the actions listed below.
1. Conduct annual visual inspection for deteriorated paint inside the dwelling unit. If deteriorated paint is a found, repair and repaint the area with deterioration (including correcting the causes of deterioration).
2. Adjust doors and windows to minimize friction that may create lead-contaminated dust.
3. Use specialized cleaning methods inside the unit to remove lead-contaminated dust.
4. Make horizontal interior surfaces smooth and easy to clean. Owners may be required to re-coat deteriorated hardwood floors, replace or recover worn out linoleum floors, repair and repaint inside window sills, and/or cover window troughs with vinyl or aluminum.
5. Provide occupants with the EPA pamphlet "Protect Your Family from Lead in Your Home." Owners must also provide tenants written information on the PMP and any previous lead evaluation efforts.
6. If the unit was built before 1950, the owner must repair and repaint exterior deteriorated paint, correct the cause of paint deterioration, and cover bare soil within three feet of the building foundation (e.g., cover with grass or mulch).
7. Verify compliance with the PMP standard through an annual onsite monitoring inspection conducted by a certified lead inspector or risk assessor. The inspection has two core elements. First, inspectors perform a visual assessment to document that:
· all paint is intact;
· floors and windows have smooth and easy to clean surfaces (e.g., window troughs are covered with vinyl or aluminum); and
there are no friction or impact areas producing lead dust.
Second, inspectors collect dust samples to document that lead levels are below state standards (100 micrograms per square foot on floors (g/ft2), 500 g/ft2 on window sills, and 800 g/ft2 on window troughs). If a unit passes the monitoring inspection, owners receive a Certificate of Compliance, which must be renewed annually through a monitoring inspection.
Owners are encouraged, but not required, to attend a workshop on lead safety precautions during building renovation and maintenance.
Rocky Mount Integrated Rehabilitation Loan and Preventative Maintenance Program
In November 2000, the City of Rocky Mount's Planning Department developed a program to link rehabilitation activities supported with Community Development Block Grant (CDBG) funds with the PMP. The program integrates both the new U.S. Department of Housing and Urban Development's (HUD's) requirements for lead-based paint activities (24 CFR Part 35) and the PMP standards into rehabilitation actions in residential properties built before 1978.
The HUD required lead-precautions during rehabilitation are listed below and the additional activities required under the PMP are distinguished in italics. Figure 1 provides a schematic description of the program.
1. Once a unit is selected for CDBG funding, the owner must determine or assume if the paint is lead-based. Only a certified lead inspector or risk assessor can determine the absence of lead-based paint.
2. The City of Rocky Mount's Planning Department approves a scope of work to comply with HUD requirements and the PMP. Supplemental PMP actions not required by HUD or the City typically include making all horizontal surfaces smooth and cleanable (e.g., replacing worn vinyl flooring; installing trough liners).
3. Solicit bids from contractors. If the work is equal to or less than $25,000 (not including lead costs), contractors must meet HUD training requirements for interim controls (i.e., supervisor is a certified lead supervisor or all workers have completed HUD-approved training in lead-safe work practices). HUD approved a North Carolina course developed by Craven County. The PMP coordinator offers the HUD-approved North Carolina training at no cost. If the lead work is greater than $25,000 (not including lead costs), the contractor must be a certified lead abatement contractor (i.e., certified supervisor and workers).
4. In all jobs, the contractors must follow lead-safe work practices defined in 24 CFR Part 35 and the PMP.
5. The unit must pass clearance testing (i.e., visual assessment for dust and debris in the work area and environmental testing to document that dust lead loadings are below HUD standards – 40 g/ft2 for floors; 250 g/ft2 for windowsills; and 800 g/ft2 for window troughs). A certified lead inspector or risk assessor must conduct clearance. If the unit fails clearance, re-cleaning is required until it passes.
6. The Edgecombe-Nash PMP coordinator conducts a second clearance examination at no cost to the owner. If the unit fails clearance, the owner/contractor must take the steps needed to meet clearance (e.g., repainting, cleaning lead-contaminated dust).
7. Once the unit passes the PMP clearance, the owner applies for a PMP Certificate of Compliance. The state coordinator of the PMP reviews the clearance data and may conduct a second PMP clearance audit before issuing a certificate. The certificate is valid for one year.
8. For every year the unit complies with the PMP monitoring requirements, the City of Rocky Mount will forgive 10% of the CDBG loan. Thus, over a 10-year period the owner could forgive 100% of the original loan. If the unit fails an annual monitoring inspection, the owner is provided an opportunity to rectify the problems and undergo another monitoring examination. (The Edgecombe-Nash PMP coordinator will conduct the annual monitoring no cost to the owner.)
9. Recipients of CDBG funds are required to attend 8 out of 10 free courses related to building maintenance. One of the required courses focuses on lead-safety issues and the PMP. It is currently the first of the 10 classes.
In summary, the overall program goals are to: target CDBG funds to housing with a high risk of lead hazards; spur momentum for the PMP by providing a ready supply of units that already meet the majority of PMP standards; use the PMP to leverage the life expectancy of the CDBG funds by forgiving 10% of the loan funds for each year the unit is documented to remain in compliance; ensure that quality rehabilitation and lead-hazard control work is performed by conducting a second clearance test and annual PMP monitoring inspections; and educate property owners about lead hazards by requiring attendance in a training class.
Program Participation
To date no units have completed the program. However, two units are nearly at the clearance stage and nine additional units have applied to the rehab program. Approximately 27 individuals have completed the class in lead-safety.
Linkages to the Preventative Maintenance Standard
The linkages to the PMP occur in at three key points in the rehabilitation process. First, the initial scope of work developed by the City Planning Department addresses PMP standards. Typically the additions include making horizontal surfaces smooth and cleanable even if the surfaces are not coated with lead-based paint (e.g., worn flooring) and the standard explicitly requires window troughs be covered or windows replaced. Second, a PMP clearance examination must be performed because the PMP requirements are broader than those required by HUD. This PMP clearance also provides a quality control check on the initial clearance. In at least one case, the PMP clearance identified potential lead hazards not documented in the first clearance. Third, the program uses the PMP as an incentive to maintain the unit in good condition. The City will forgive 10% of the CDBG loan each year the property owners complies with the annual PMP onsite monitoring inspection.
Catalyst for Ordinance
This policy change was the direct result of an unsatisfactory lead hazard control project funded with CDBG funds. In 2000, Rocky Mount CDBG funds were used to renovate and conduct lead abatement on a four unit multifamily property. The property passed lead clearance as is required of all abatement projects under North Carolina state lead regulations. After discussions with staff promoting the PMP, the owner expressed interest in enrolling the property in the program. In response the PMP coordinator conducted a PMP clearance examination. The property did not pass clearance because deteriorated paint was located on the porch, exterior trim, and selected interior surfaces and paint chips were present on the soil. (The PMP requires owners to stabilize deteriorated paint unless it is documented to not be lead-based and soil must be free of paint chips, unless the chips are known to not have lead-based paint.) This second clearance one month after the original clearance persuaded the city of Rocky Mount to consider integrating the PMP with the existing rehab program. The new program offered two key advantages to the CDBG program. First, a second clearance test provides a quality control check at no cost to the rehab program. Second, the program obtains free annual monitoring reports that generate information on the physical condition of the unit, paint condition, and dust lead levels.
Outreach Efforts
Limited outreach activities promoting the program have occurred thus far. The program itself creates an opportunity to discuss lead-safety and the PMP during the required lead-safety class. The PMP coordinator has also shared her experience with other PMP coordinators throughout the state. Related outreach efforts include offering the HUD approved lead safe remodeling training and training for homeowners.
Potential Benefits
There are three key aspects of the program's structure that are likely to increase PMP enrollment.
The program links all CDBG residential projects for units built before 1978 with the PMP and requires PMP enrollment at unit clearance. This automatic linkage of an existing and robust program with the newly created PMP is likely to help break down existing resistance to participate in a new government program.
The program provides a financial incentive for continued participation in the PMP beyond year one, by offering to forgive 10% of the CDBG loan for each year the unit successfully passes the PMP monitoring inspection.
It responds to the conclusions of an earlier review of PMP outreach efforts that recommended future initiatives "partner with organizations offering funds for renovation or lead hazard control" and "leverage interest in HUD's new lead-based paint requirements for federally assisted housing to generated interest in the PMP program." (See "Review of Efforts to Promote the North Carolina Lead-Based Paint Preventative Maintenance Program" prepared by ERT Associates, March 20, 2000.)
Potential Limitations
There are no glaring limitations in the program, however several issues could impair it's effectiveness.
PMP requirements supplementing the HUD lead mandates are not yet institutionalized in the specification writing and bid process. This could result in omissions in PMP-related criteria in job specifications. Early experience with one unit suggests that unless the PMP criteria are integrated into the spec writing process, some items may simply fall through the cracks.
Demand for PMP clearance testing and/or annual PMP monitoring inspections could outstrip the resources of the Edgecombe-Nash PMP coordinator. One possible response could be to revise the inspection schedule after year 3 to be semi annual or at longer intervals and adjust the loan forgiveness accordingly. Alternatively, a less intensive inspection schedule could apply to unit built after 1950 which are less likely to have lead-based paint.
The program does not necessarily have leverage to ensure a contractor repairs hazards if a unit fails the PMP clearance but not the HUD-mandated clearance. It is unclear whether the existing contracts will hold back final funds until the unit passes both the HUD and PMP clearance or provide other leverage with the contractors.
New Bern Lead Abatement Ordinance
In May 2000, the city of New Bern passed an ordinance to require lead-safety precautions during renovation and remodeling activities in residential dwellings built prior to 1978. The goal of the ordinance is to ensure that renovation activities in homes that may have lead-based paint do not create lead hazards. The ordinance institutes precautions similar to the HUD lead standards applicable to federally assisted housing (24 CFR Part 35).
The ordinance is triggered when (1) a property owner applies for a permit to conduct a renovation project, (2) a property is being repainted, and (3) renovation or repainting is required due to a minimum housing code investigation. If the work will occur in a building built prior to 1978 (when lead-based paint was banned from residential paint), the city refers the applicant to the Environmental Health Section of the Craven County Health Department, which then oversees the implementation of the lead safety precautions. The applicant may either test the paint for lead or assume its is lead-based. If testing documents that the paint is not lead-based (i.e., lead content is less than 1 mg/cm2 or .5% by weight), the building is not subject to the ordinance and the Environmental Health Section issues a statement verifying the exemption. If the paint is lead-based or the applicant assumes the paint is lead-based, several requirements apply. The requirements are shown below and in Figure 2.
1. The applicant must follow "lead-safe" work practices, identified in the PMP.
2. The workers must be trained in lead-safe work practices or the onsite supervisor must be certified as a lead abatement supervisor. New Bern will accept any lead training approved by HUD under the "Lead-Based Paint Hazards in Federally Owned Housing and Housing Receiving Federal Assistance" regulation (i.e., 24 CFR Part 35). HUD has approved a course developed by Craven County and several federally sponsored courses.
3. Applicants must obtain a permit from the city acknowledging that they complied with the lead requirements. The Environmental Health Section recommends to the city whether the permit should be granted (indicating how the applicant meets the lead requirements) or whether additional actions must be conducted before a permit is issued.
4. Units must pass clearance testing that includes a visual assessment for dust and debris in the work area and environmental testing of dust for lead. New Bern uses the dust testing protocol defined in the HUD's regulation (24 CFT 35.1340). Dust lead loadings cannot exceed 40 micrograms per square foot (g/ft2) on floors, 250 g/ft2 on window sills, and 800 g/ft2 on window troughs. The Environmental Health Section provides free clearance testing. If a unit fails clearance, the contractor is remanded to re-clean the unit and another examination is required until the unit achieves clearance.
5. Once a unit passes clearance, the city issues a Certificate of Occupancy.
Program Participation
During the eight months the ordinance existed in 2000 (i.e., May through December), participation was a follows:
- 25 permits were issued;
- 7 units underwent clearance testing by the Environmental Health Section;
- 4 units passed clearance testing;
- 3 units failed clearance initially (2 of the 3 units were re-cleaned and passed clearance, no further action occurred at the remaining unit);
- None of the units that passed clearance applied for a PMP Certificate of Compliance; and
- 87 workers received lead training during nine courses offered by the Environmental Health Section.
Linkages to the Preventative Maintenance Standard
Although the ordinance does not require property owners to participate in the PMP, the goals are consistent and the required activities create opportunities to tell owners about the benefits of the PMP. Thus, the ordinance could function as a potential supply of units for the PMP. However, to date none of the units that obtained a permit under the ordinance (25 units) and none of the units that passed clearance (2 units with a common owner) applied to participate in the PMP. It is not clear why the owner of these units did not participate in the PMP.
Catalyst for Ordinance
Momentum to pass the ordinance was created by three separate events. First, in the fall of 1999 two girls were lead poisoned in the city and one girl required chelation therapy. The case received substantial press coverage that peaked the interest of local politicians in possible lead poisoning prevention initiatives. Second, the Environmental Health Section of the Craven County Healthy Department promoted amendments to the New Bern minimum housing ordinance to address lead hazards. These outreach efforts occurred during 1999 through 2000 with a limited response from the city. Third, a city resident and homeowner familiar with the risks of lead hazards during renovation took a leadership role in promoting mandatory lead-safety precautions during renovation activities. Her involvement was spurred when a neighbor used hydro- blasting to remove lead-based paint on the exterior of their home. This paint removal strategy spread lead dust and debris into the neighbors yard and porch, putting the neighbors children at risk of increased lead exposure. The combination of ongoing pressure from the Environmental Health Section, specific cases of lead poisoning and unsafe renovation, and a vocal advocate of lead-safety appear to have catalyzed action to help develop the ordinance. There was no publicity related to the adoption of the ordinance and no opposition to its passage.
Outreach Efforts
Efforts to promote the program began in August 2000, several months after adoption of the ordinance. City activities focused on the contracting community, the Community Development Block Grant (CDBG) program, and the city permitting section. The Environmental Health Section is promoting and conducting training classes on lead safety during renovation, remodeling and repainting. Courses occurred initially weekly and then monthly.
Potential Benefits
The ordinance has several unique elements that could benefit lead poisoning prevention efforts and the PMP.
It integrates lead concerns into the General Construction ordinance and the existing building permitting process. (A new Paint Permit is required only when the job is limited to repainting.) Streamlining lead precautions reduces administrative costs and sends clear signals that lead-safe practices should be part of the typical renovation and repainting project.
It increases the number of contractors and property owners who receive lead training. Contractors will use these lead-safety precautions on jobs with the lead renovation permit and may apply them during other jobs where a permit is not obtained but the unit may contain lead-based paint. Owners may become more informed consumers of renovation services and demand lead-safety precautions when work occurs in older homes.
It minimizes the chances that an occupant will move into a unit with lead hazards after a renovation and repainting job since clearance is required.
The program could help create a pool of owners likely to participate in the PMP since their units would satisfy nearly all PMP requirements and thus the costs of obtaining compliance would likely be minimal. However, because there is no direct requirement or financial incentive to enroll in the PMP it is unclear if simply having a unit that generally meets the PMP standards will entice owners to participate.
Potential Limitations
The structure of the ordinance could impose some limitations on its effectiveness in reducing lead poisoning and increasing enrollment in the PMP.
Owners conducting their own work and contractors operating outside the permit process may not be aware of the requirement for the Paint Permit.
Outreach and enforcement actions are critical to make the requirements a reality; limited resources are currently being devoted to this activity.
The requirements cannot be met without the active participation of the County Health Department. Some property owners and contractors distrustful of government participation or wary of bureaucratic delays could view the government participation (conducting an initial inspection of the property, issuing a recommendation for a permit, conducting the clearance testing) as a disincentive for compliance.
A second and unique permit is issued which could translate into added costs for the city and may be perceived as complicating the renovation process.
Because PMP enrollment is not mandatory, it may not yield substantial increases in PMP participation.
Anticipated Modifications in Ordinance Activities
The County Health Department plans to charge fees for the activities associated with this program (including clearance) to encourage enrollment. For example, the County will waive the $195.00 fee for clearance testing if the property is enrolled in the PMP.
PMP Activities During Fall 2000
In 2000, two units in Craven County applied for a PMP Certificate of Compliance. One unit obtained a Certificate in September 2000. A second unit owned by the same individual initially passed clearance testing but failed a second clearance examination conducted by state PMP staff. (An initial clearance is conducted at the County level and state staff may perform a clearance audit.) County staff hypothesize that the failure was influenced by demolition that occurred in the neighboring property. The owner has not yet reapplied for the Certificate.
Rocky Mount Rehabilitation Loan and Preventative Maintenance Program
Figure 1
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New Bern Lead Abatement Ordinance
Figure 2
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