Lead law: City's jurisdiction increases over dangerous lead-based paint, asbestos in residential demolitions
If an old house in your neighborhood was recently demolished, there might have been no way for you to tell whether asbestos was flying around.
That's all changing now that Senate Bill 871 gives Oregon cities jurisdiction over what was once only regulated by the Department of Environmental Quality (DEQ) and the Occupational Health and Safety Act (OSHA).
The City of Portland typically sees more than 300 residential demolitions per year, and is gaining authority on what to do about lead and asbestos dust from demolitions, an area where previous to the senate bill it had no jurisdiction.
"As far as lead-based paint, there's an oddity — a loophole, a gap, more than an oddity," said Nancy Thorington, senior code and policy analyst with the Bureau of Development Services (BDS). "For remodels, there are really strict requirements in terms of lead-based paint containment, but for residential demolitions up until SB871 was adopted, there was nothing. That was obviously a big problem."
Like many issues surfacing during the building boom, the amount of demolitions now occurring simply wasn't a problem in the past one-offs. Now, as old homes make way for big new houses on desirable plots, demolitions are becoming a more common happening.
"For Portland, in the last several years we've had more demolitions," Thorington said. "It kind of leveled off, but it hasn't been an issue now until home prices started to go up: you get older homes on the market and it just becomes part of the economy."
Because that part of the economy can change from city to city in Oregon, SB871 was written with flexibility in mind.
"That flexibility built into SB871 is basically helping various agencies collaborate, trying to create these best practices and to address this huge gap that has existed," Thorington said. "We're working on developing an ordinance that's going to incorporate those best practices and requirements for the asbestos survey and notice to abate."
The BDS website has an info tab about residential demolitions with an interactive map that can drill down to individual properties and see the permits and when they were issued.
"What we plan to do is make it so that when somebody comes in for a demolition permit, they have to give us a copy of the asbestos survey and the notice of intent to abate," Thorington said. "Then we can put those on there (the web) so that if people are concerned, if a neighbor is concerned, we have notice provisions in our demolition ordinance now that sent out a notice to surrounding properties within 150 feet."
It's mostly neighbors who are interested in trying to find out this information, because the city hasn't seen many commercial demolitions — at least, not to this problematic scale.
"So, if they're (a neighbor) is like, this is an old house, I think there's probably asbestos or lead paint, we're in the process of trying to figure out what we're going to do," Thorington said. "You'll be able to click on that, see a copy of the asbestos survey and if there was a notice of intent to abate, that would be with it, too. It's giving us a lot more tools to work with."
"Before 871, basically our jurisdiction is issuing building permits," Thorington said. "With respect to demolitions, it was physical, structural safety — making sure when they come in there with bulldozers, the wall doesn't fall over on a neighbor's property, or onto the right-of-way onto the street. We're making sure if they take out the foundation, if they're not going to use it for the replacement structure, that they grade it and cap the sewers. It is pretty limited."
Thus far, OSHA has been the only entity with authority over lead-based paint up until SB871.
Senator Michael Dembrow (D-OR) worked with Representative Alissa Keny-Guyer (D-OR) spoke with Speaker Tina Kotek's office and various stakeholders throughout the senate bill process.
"We (the BDS) were represented there, as was the Oregon Health Authority and DEQ, working to try and fill this huge gap, and also help on the asbestos side," Thorington said. "SB871 now allows local jurisdictions to adopt ordinances that will require that they be provided a copy of the asbestos survey and notice of intent to abate if asbestos is found, and it requires the Oregon Health Authority in conjunction with the DEQ and stakeholders to develop best practices for containing lead-based paint and dust during residential demolitions."
Collaboratively, the entities are working to come up with a list of potential best practices through stakeholder groups. It will end up looking different for various cities in Oregon.
"The theory behind that: what works in Portland, what you need for lead containment, isn't necessarily what you need in Pendleton," Thorington said.
Previously, regulations under the city's jurisdiction were strict only in respect to renovations.
"If you read those, they're focused on homes and daycare and there's actually a big exemption in those anyway if you're doing your own work," Thorington said. "If you're doing your own work in your own house, you're exempt from the regulations. If you look at the way those renovation rules are written, it's to protect kids, so if it's a daycare facility or anything like that, anyplace that's got young kids in there, I think that was their focus — not really looking at demolitions."
In October 2016, a new deconstruction ordinance came into play: it mandates that the demolition of a house or duplex built before 1916 be deconstructed, instead. But that policy doesn't reach the scope of today's demolitions in terms of lead and asbestos safety, either.
"One of the best practices for containing dust when they have a mechanical demolition and go in with a bulldoze is wetting it down — but you aren't going to wet down deconstruction because it's going to get all the wood you're trying to save wet and ruin it," Thorington said.
Thorington's group is in the process of drafting an ordinance for Portland under SB871.
"The way things were before 871 is that the cities don't have jurisdiction over things like the lead and asbestos during residential demolitions," Thorington said. "That air quality stuff was handled by the DEQ and they require an asbestos survey. If the survey finds anything, then you have to do a notice of intent to abate, and then do abatement."
Local jurisdictions had no way of getting copies of that paperwork, and it was nearly impossible for private citizens to get their hands on the information. The DEQ could ask for a copy at its discretion, because the person doing the demolition wasn't required to provide a copy to the DEQ.
"Even if somebody wanted to get a copy of it, oftentimes the demolition was already done, so they didn't know if there was asbestos," Thorington said.
OHA stakeholders aren't focusing on asbestos — just lead — but the BDS stakeholder group will focus on both.
"We're all working together. The group that I'm spearheading is basically going to have what we call a development review advisory committee," Thorington said. "It's an advisory committee that has a combination of people who are in the construction industry and representatives from neighborhood groups, so I'm going to have a demolition subcommittee of that group, there's going to be those people plus the Oregon Health Authority, DEQ, contractor board (?) and then OSHA — they have been the one agency that does have jurisdiction over lead-based paint."
"It's a new thing for local jurisdictions to be involved in this at all, so it's going to be a lot of discussion to get it right," Thorington said. "One of the things we really want to do is make sure anything we develop, we can enforce, because we don't want to raise expectations that we can't fulfill."
The BDS intends to bring the ordinance before City Council by the end of the year.
By Jules Rogers
Reporter, The Business Tribune
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See "Neighbors unsettled about lead dust from home demolitions," published in the Portland Tribune September 27, 2016, online here.
The BDS website has an info tab about residential demolitions here.
Obtener la certificacion (get certified) en Espanol
The Home Builders Association (HBA) is helping more Spanish-speaking construction workers become certified to safely remove lead-based paint. In order to do so, workers need to take and pass a Lead-Based Paint Certified Renovator written test, which, up until now, has only been available in English.
The HBAMP worked with the Environmental Protection Agency (EPA) and Oregon Home Builders Association (OHBA)
"We worked closely with the OHBA in offering these lead-based paint certification classes certified through the EPA," said Kaitlin Torney, sustainability and education manager with the HBAMP. "The class itself is done in English — that's a very important key component of this — but we've had some Spanish-speaking students who take the course, they understand the material and what the teacher is saying to them, but the issue has been when they go to take the class at the end of the day they can't read the test that has been put in front of them — because it's in English."
The Spanish-language version of the test is the first of its kind in the state, and has already created an uptick in pass rates.
"How the classes are oriented and certified, unless we get a teacher who's a Spanish-speaking teacher and it's a strictly Spanish-speaking class, that's the difference," Torney said. "We don't have the classes in Spanish here in Oregon — but we have the test."
In June, HBAMP raised the idea of a Spanish version of the written test with colleagues at the OHBA and EPA. By July the Spanish test was finalized, approved by the EPA and made available to renovator classes in Portland.
"I asked questions, I found a loophole: as long as the class is being taught in English, we can have a certified translator translate the test into Spanish, and now our students are able to take the test," Torney said.
The EPA requires at least one person working on a renovation or remodel of a pre-1978 house or child-occupied facility be certified to safely handle lead-based paint. That means taking an 8-hour EPA-approved Renovator Course taught by an accredited trainer and passing a written test at the end.
"It has been something that has been a stressor for the teacher (David Wrye) as well — he's been the one who has seen it hands-on, and my partner Tami Walter," Torney said. "They come up to us and say, we're sorry, we can't read this at all."
Walter, a member concierge, worked with Torney during the class sessions as a proctor. Wrye is a safety and education consultant.
The test is distributed throughout the State of Oregon, not just in Portland.
"It will help by giving them an opportunity to fully success in the class: not only will they be getting the certification they need to increase their probability of getting a job in lead abatement, it works in their favor that it's a leg up on the rest of the community," Torney said. "They can ensure they'll get a higher-paying job."
The HBA is always looking at ways to improve processes to ensure the health, welfare and safety of workers and the community.
"I believe this matters because it shows that we are understanding that not everybody speaks English here in the City of Portland, we are a diverse city that has multiple different cultures and that Spanish is one of the higher ones in Portland right now," Torney said. "What this does is open doors for us to potentially get that Spanish-speaking class and open our doors to different communities and different diversities."
The HBA's Metro Portland branch pursued and implemented these changes well before there was discussion about the potential draft ordinance from the City of Portland. This was an initiative to ensure a greater pass rate by Spanish-speaking members of the industry.
"I hope that we're going to see more of a success rate in our Spanish-speaking students, hope they will increase attendance with our Spanish-speaking students as well, because they see us as an outlet, a resource, somebody they can turn to who is listening to their needs," Torney said.
HBAMP wants to support programs/policies that further workforce development, especially considering the general shortage of trained labor across the industry.