He-P 1600

CHAPTER He-P 1600 LEAD Poisoning Prevention AND CONTROL RULES

PART He-P 1601 PURPOSE AND SCOPE

He-P 1601.01 Purpose.

(a) The lead paint poisoning prevention and control rules are adopted to implement the requirements of the New Hampshire Lead Paint Poisoning Prevention and Control Act, RSA 130-A.

(b) The lead paint poisoning prevention and control rules set forth standards and requirements for lead hazard reduction and inspection, licensing of lead inspectors, risk assessors, lead abatement contractors and owner-contractors, certification of lead abatement workers and lead abatement supervisors, and for blood lead reporting by laboratories as required by RSA 130-A, 15 USC 2681-2692, 40 CFR 745.226 and 42 USC 4821-4856.

Source. #1592, eff 7-1-80; ss by #5920, eff 1-1-95; ss by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; amd by #7393, INTERIM, eff 10-28-00, EXPIRED: 4-26-01; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

He-P 1601.02 Scope.

(a) The lead paint poisoning prevention and control rules apply after an investigation by the commissioner identifies lead exposure hazards, or to persons engaged in lead hazard reduction as defined in He-P 1602.01(af), or to any person subject to the provisions of RSA 130-A.

(b) Pursuant to Part 1, Article 28-a of the Constitution of New Hampshire, political subdivisions shall be exempt from the provisions of RSA 130-A and He-P 1600, except for the licensing and certification of lead educational programs and lead professionals as detailed in He-P 1611 and He-P 1612, unless:

(1) The programs and responsibilities imposed under RSA 130-A and the rules are fully funded by the State; or

(2) The subdivisions voluntarily and at their own expense comply.

Source. #1592, eff 7-1-80; ss by #5920, eff 1-1-95; ss by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

PART He-P 1602 DEFINITIONS

He-P 1602.01 Definitions.

(a) “Abatement” means measure(s) designed to permanently eliminate lead-based paint hazards as defined in 40 CFR Part 745.223 (April 8, 2004 edition), including, but not limited to:

(1) Activities resulting in the permanent elimination of lead-based paint hazards, conducted by individuals certified or licensed in accordance with He-P 1612; or

(2) Activities resulting in the permanent elimination of lead-based paint hazards that are conducted in response to an investigation, an order of lead hazard reduction or other enforcement action undertaken by the commissioner pursuant to RSA 130-A:5 or RSA 130-A:7, or by a local health department pursuant to RSA-130-A:11, II.

(b) “Abrasive blasting” means the procedure of removing paint from a surface by using a mechanical force to apply an abrasive material, including sand, grit, or other abrasive material, to a painted surface.

(c) “Bare soil” as used in the definition of “lead exposure hazard” in RSA 130-A:1, XVI, means soil or sand that is accessible to children or pets and is not covered with grass, sod, other vegetation, asphalt, concrete, decking, or other substantive covering, and includes soil or sand in a sandbox or play area.

(d) “Blood lead level” means a blood lead measurement obtained by a diagnostic blood lead test conducted by a laboratory certified pursuant to 42 CFR Part 493 Medicare, Medicaid and Clinical Laboratory Improvement Amendments (CLIA) Program and, if applicable, licensed pursuant to He-P 808.

(e) “Certification” means the process of being certified.

(f) “Certified” means that an individual has a current valid certificate from the commissioner and has complied with all certification requirements set forth in this chapter.

(g) “Chewable” means a horizontal surface that protrudes more than a ½ inch and is located more than 6 inches but less then 4 feet from the ground or floor.

(h) “Child” or “children” means “child” or “children” as defined in RSA 130-A:1, I.

(i) “Child care facility” means “child care facility” as defined in RSA 130-A:1, II.

(j) “Commissioner” means “commissioner” as defined by RSA 130-A:1, III, or designee.

(k) “Common areas” means a portion of a building that is generally accessible to occupants and users including, but not limited to, hallways, stairways, laundry and recreational rooms, yards, parking areas, play areas and the building’s exterior, garages and boundary fences.

(l) “Component” means specific design or structural elements or fixtures in the interior or exterior of the dwelling, dwelling unit or child care facility that are distinguished from each other by form, function, or location onto which paint, stain, varnish, shellac or other similar coating has been applied and which have a common substrate.

(m) “Damage” means failure of a paint film or the underlying substrate that results in the paint becoming detached or is at risk of becoming detached from the substrate, including but not limited to:

(1) Peeling, chipping, flaking, chalking, or scaling paint;

(2) Plaster which is crumbling; or

(3) Paint that can be removed with a fingernail.

(n) “Department” means “department” as defined by RSA 130-A:1, IV.

(o) “Deteriorated” means any condition of reduced structural or surface integrity.

(p) “Dwelling” means “dwelling” as defined in RSA 130-A:1, V.

(q) “Dwelling unit” means “dwelling unit” as defined in RSA 130-A:1, VI.

(r) “Encapsulation” means “encapsulation” as defined in RSA 130-A:1, VII.

(s) “Enclosure” means the use of rigid durable construction materials that are fastened to the substrate in order to act as a barrier between lead-based paint and the living space, and does not include encapsulants as defined in (r) above.

(t) “Friction surface” means a surface, such as a door, floor, stair or window, which is subject to abrasion, damage or deterioration with normal repeated use.

(u) “Good cause” means any circumstances beyond a person’s control that prevents that person from complying with an order of lead hazard reduction or taking some required action including but not limited to:

(1) A death in the person’s immediate family;

(2) Personal injury or serious illness of the person or an immediate family member; or

(3) Another compelling reason or justification.

(v) “Hazardous waste” means “hazardous waste” as defined in the New Hampshire Hazardous Waste Management Act, RSA 147-A:2, VII.

(w) “Health authority” means “health authority” as defined in RSA 130-A:1, VIII.

(x) “HEPA vacuum” means an industrial or commercial vacuum cleaner equipped with a high-efficiency particulate air (HEPA) filter capable of capturing particles of 0.3 microns or greater from a body of air, with 99.97 percent efficiency, and is designed so that all air drawn into the machine is expelled through the HEPA filter.

(y) “Impact surface” means a point of contact such as a door, floor, stair or window, where the component is subject to repeated impact through normal use, sufficient to cause deterioration of lead-based paint.

(z) “In-place management” means “in-place management” as defined in RSA 130-A:1, XII.

(aa) “Interim controls” means “interim controls” as defined in RSA 130-A:1, IX.

(ab) “Lead-based substance” means “lead-base substance” as defined in RSA 130-A:1, XI.

(ac) “Lead-containing waste material” means any waste, debris, dust, or material intended for disposal, including, but not limited to, disposable equipment and clothing that contains lead that was generated by lead hazard reduction work regulated under this chapter.

(ad) “Lead exposure hazard” means “lead exposure hazard” as defined in RSA 130-A:1, XVI.

(ae) “Lead free” means a designation that a dwelling, dwelling unit, or child care facility or other structure is free of all lead-based substances.

(af) “Lead hazard reduction” means measures used to control lead exposure hazards through abatement, interim controls or a combination of the 2 measures.

(ag) “Lead inspection” means an examination to determine the presence of a lead-based substance, to evaluate an existing or potential lead exposure hazard, or to determine compliance with RSA 130-A or He-P 1600 and includes, but is not limited to:

(1) Clearance inspections, both preliminary and final;

(2) Compliance inspections;

(3) Environmental inspections, as part of investigations;

(4) Full inspections; and

(5) Inspections as part of a risk assessment.

(ah) “Lead safe” means a designation made after a risk assessment or a clearance inspection has been completed and the dwelling, dwelling unit, or child care facility does not have lead exposure hazards at the time of the assessment or inspection.

(ai) “Licensed” means that a person has a currently valid license from the commissioner and has complied with all licensing requirements set forth in this chapter.

(aj) “Licensure” means the process of obtaining a valid license.

(ak) “Multi-family dwelling” means a dwelling consisting of 2 or more dwelling units on a single lot including, but not limited to, apartment buildings, townhouses, condominiums, shared housing, rooming units and rooming houses.

(al) “Occupant” means “occupant” as defined in RSA 130-A:1, XVII.

(am) “Order of lead hazard reduction” means an order issued by the commissioner requiring all lead exposure hazards be reduced or eliminated from a given dwelling, dwelling unit, or child care facility.

(an) “Owner” means “owner” as defined in RSA 130-A:1, XVIII.

(ao) “Owner-contractor” means an individual who:

(1) Owns 7 or fewer dwelling units;

(2) Meets the lead abatement contractor education and licensing requirements for an initial or renewed license but is not required to have 2 years’ work experience;

(3) Complies with the functions and responsibilities of a licensed lead abatement contractor; and

(4) Performs lead hazard reduction work only on dwellings and dwelling units owned by the individual.

(ap) “Owner occupied” means a dwelling or dwelling unit is in use and occupied by the owner as defined in RSA 130-A:1, XVIII.

(aq) “Participating” or “participate” “in the management of a dwelling, dwelling unit or child care facility” means “participating” or “participate” “in the management of a dwelling, dwelling unit or child care facility” as defined in RSA 130-A:1, XIX.

(ar) “Permanently,” as used in the definition of “lead base substance abatement” in RSA 130-A:1, XIII, means that the duration of the method of abatement can reasonably be depended upon to last for 20 years or for the life of the abated building component.

(as) “Person” means “person” as defined in RSA 130-A:1, XX.

(at) “Play area” means an area of frequent bare soil contact by children 72 months of age or less as indicated by, but not limited to, the following:

(1) The presence of play equipment such as sandboxes, swing sets and sliding boards;

(2) Toys or other children’s possessions;

(3) Observations of play patterns or wear; or

(4) Information provided by parents, residents, care givers or owners.

(au) “Risk assessment” means an on-site inspection conducted by a New Hampshire licensed risk assessor, to determine the existence, nature, severity, and location of lead exposure hazards, and the provision of a report explaining the results of the inspection and options for reducing lead exposure hazards.

(av) “Substrate” means the material underneath paint and includes, but is not limited to, brick, concrete, drywall, metal, plasters and wood.

(aw) “Window well” means, for a typical double-hung window, the portion of the exterior window sill between the interior window sill or stool and the frame of the storm window, or when there is no storm window, the area that receives both the upper and lower window sashes when they are both lowered. The term includes window trough.

Source. #5920, eff 1-1-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

PART He-P 1603 LABORATORY STANDARDS AND REPORTING

He-P 1603.01 Laboratory Certification. All laboratories performing blood lead testing on adults or children residing in New Hampshire shall comply with 42 CFR Part 493 Medicare, Medicaid and Clinical Laboratory Improvement Amendments (CLIA) Program Laboratory Requirements Relating to Quality Systems and Certain Personnel Qualifications, and, if applicable, He-P 808.

Source. #5920, eff 1-1-95; amd by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11 (from He-P 1609.03)

He-P 1603.02 Reporting.

(a) In accordance with RSA 141-A, every physician or other health care provider who assesses, diagnoses or treats a person with an elevated blood lead level shall report the information required by (i) below to the department by telephone, mail, or electronic transmission.

(b) Any health care provider, collecting station, laboratory or other individual that collects specimens for blood lead analysis shall collect the information required by (i) below.

(c) Laboratories shall report to the department the results of each blood lead analysis conducted on New Hampshire residents by:

(1) Submitting a paper copy of the report; or

(2) Submitting an electronic report in accordance with (e) below.

(d) All reports required by (a) through (c) above shall be in a format secured from inadvertent or unwarranted intrusion to maintain patient confidentiality.

(e) Laboratories using an electronic system for reporting test results to the department shall file test results using one of the following formats:

(1) American Standard Code for Information Interchange (ASCII) format;

(2) Health Language 7 (HL7) format or similar formats as developed by a national coalition on electronic laboratory reporting;

(3) Microsoft Access;

(4) Microsoft Excel; or

(5) Other formats which are compatible with those of the department.

(f) Laboratories shall report all blood lead test results in micrograms per deciliter.

(g) Any laboratory receiving a blood sample for lead analysis from a health care provider, referring laboratory, collecting station or other source shall require that the requisition includes all the information required in (i) below.

(h) Laboratories shall follow up with health care providers, referring laboratories, collecting stations or other sources to collect required information in (i) below if information is incomplete.

(i) Laboratories shall supply the following information to the department for each blood lead analysis report:

(1) The name of the individual;

(2) The individual’s date of birth;

(3) The individual’s street address, including the town or city of residence, state of residence and postal code;

(4) The name and address of the health care provider ordering the test;

(5) The submitting laboratory’s name, address, and telephone number;

(6) The name of the referring laboratory, if applicable;

(7) Whether the specimen is a venous or capillary sample;

(8) The date of the sample collection;

(9) The date of the sample analysis;

(10) The blood lead analysis results;

(11) The individual’s race and ethnicity;

(12) The individual’s gender;

(13) The name of the individual’s parent or guardian if the individual is aged 15 years or younger;

(14) The occupation of individuals aged 16 years or older;

(15) The name of the individual’s employer at the time that the blood lead test is performed when testing is a requirement of the individual’s occupation;

(16) The method of analysis; and

(17) The results of erythrocyte protoporphyrin analysis and zinc protoporphyrin analysis used to identify anemia and elevated blood lead levels, if conducted.

(j) Laboratories shall report blood lead test results to the department and ordering health care provider as follows for children 72 months of age or less, in which the blood lead level is equal to or greater than:

(1) Forty-five micrograms per deciliter within one business day of the analysis;

(2) Twenty micrograms per deciliter but less than 45 micrograms per deciliter within 3 business days of the analysis; and

(3) Ten micrograms per deciliter but less than 20 micrograms per deciliter within 10 business days of the analysis.

(k) Except as provided in (j) above, laboratories shall submit blood lead analyses reports within 15 business days of the date of the analysis.

(l) A blood lead specimen report of greater than or equal to 10 micrograms per deciliter on a child shall include a recommendation to the ordering health care provider that the child receive follow-up testing in accordance with the department’s Childhood Lead Poisoning Screening and Management Guidelines.

(m) When a laboratory refers a blood lead sample to another laboratory for analysis, the laboratories shall agree, in writing, on which laboratory:

(1) Is responsible for ensuring that the information required by (i) above is collected; and

(2) Will file the report in compliance with this section, but such an agreement shall not alter the legal responsibility of both laboratories to ensure that a report is made in compliance with (i) above.

Source. #5920, eff 1-1-95; amd by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; amd by #7393, INTERIM, eff 10-28-00, EXPIRED: 4-26-01; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11 (from He-P 1610.20)

He-P 1603.03 Effect on Other Reporting Requirements. Nothing in He-P 1603 shall be construed as relieving any laboratory from reporting results of any blood lead analysis to the health care provider that ordered the test, or to any other entity as required by state, federal or local statutes, rules or regulations.

Source. #5920, eff 1-1-95; ss by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; amd by #7393, INTERIM, eff 10-28-00, EXPIRED: 4-26-01; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

PART He-P 1604 INVESTIGATIVE PROCESS

He-P 1604.01 Purpose. The commissioner shall investigate cases of lead poisoning in children with elevated blood lead levels as defined in RSA 130-A:5.

Source. #5920, eff 1-1-95; amd by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

He-P 1604.02 Requests for Information. In accordance with RSA 130-A:5, I(a), the commissioner shall require information and periodic reports for the purposes of medical and environmental case management and investigation including, but not limited to, the following:

(a) From a child’s health care provider:

(1) Child’s full name;

(2) Child’s date of birth;

(3) Child’s race and ethnicity;

(4) Child’s addresses;

(5) Names of child’s parents or guardians;

(6) Child’s blood lead analysis results;

(7) Plans for medical management of the child;

(8) Names of child’s siblings;

(9) Siblings’ dates of birth;

(10) Results of siblings’ blood lead analysis;

(11) Any information available about the child’s sources of lead exposure;

(12) Child’s Medicaid number, if enrolled in Medicaid; and

(13) Any other information pertinent to the management of the child’s elevated blood lead level;

(b) From an owner or owner’s agent of a dwelling or dwelling unit:

(1) Dates of occupancy by the child;

(2) Whether the child continues to occupy the dwelling or dwelling unit at the time of the request;

(3) New address of family, if known, when the family has moved or is relocated under RSA 130-A:8-a;

(4) The lead hazard reduction activities that will be used at the dwelling or dwelling unit;

(5) A progress report on what lead hazard reduction activities have been completed; and

(6) Measures taken to protect the child from further exposure to lead;

(1) Dates of attendance by the child;

(2) Number of hours per week that the child attends the facility;

(3) Whether the child is attending the child care facility at the time of the request;

(4) Names and ages of other children attending the facility;

(5) The lead hazard reduction activities that will be used at the child care facility;

(6) A progress report on what lead hazard reduction activities have been completed; and

(7) Measures taken to protect the child and other children in the facility from further exposure to lead;

(d) From a licensed inspector or risk assessor, the results of any inspections conducted at a child’s dwelling, dwelling unit, or child care facility, or at any other building associated with an investigation; and

(e) From a lead abatement contractor involved in lead hazard reduction activities at a child’s dwelling, dwelling unit, or child care facility:

(1) The date that the lead hazard reduction activities began; and

(2) Measures taken to protect the child and other children in the dwelling, dwelling unit, or child care facility from further exposure to lead before and during lead hazard reduction activities.

He-P 1604.03 Environmental Inspections.

(a) In accordance with RSA 130-A:5, I, investigations shall include environmental inspections of dwellings or dwelling units or of any child care facility, and testing environmental samples.

(b) Once the commissioner has notified an owner that an environmental inspection is to be conducted, the owner or owner’s agent shall not perform any remodeling, renovating, maintenance, lead hazard reduction work or any other dust generating activity until such time as the inspection(s), as detailed in (c) and (d) below, have been conducted and the owner receives a written report from the commissioner.

(c) In addition to the procedures set forth in RSA 130-A:6, the commissioner shall carry out the following procedures when conducting environmental inspections of dwellings or dwelling units where children have elevated blood lead levels as defined in RSA 130-A:5:

(1) Obtain relevant information in accordance with this section;

(2) Contact the child’s parent or guardian to schedule the investigation;

(3) Arrange access for an environmental inspection with the owner or owner’s agent;

(4) Require the owner or owner’s agent to provide the names, physical addresses, including dwelling unit designations and mailing addresses, of all adults and children residing in the dwelling or dwelling unit(s) within 24 hours of the environmental inspection or sooner;

(5) Test representative painted or varnished interior or exterior building surfaces, and collect soil and dust samples, if applicable, corresponding with the dwelling that the child occupies or occupied when he or she was tested for lead exposure;

(6) Record all test results and note whether each identified lead-based substance constitutes a lead exposure hazard;

(7) Record the presence of chewed woodwork, including toys and furniture; and

(8) Request assistance from a parent or guardian in identifying a child’s potential lead exposure, with the aid of a questionnaire that shall include, but not be limited to, the following information:

a. A description of the child’s habits that might increase risk of lead exposure;

b. Possible exposure to other sources of lead, such as lead in pottery and parental occupations and hobbies;

c. Previous addresses and length of residence;

d. A description of other dwellings, dwelling units and child care facilities in which the child spends time; and

e. Recent renovations, which might have disturbed lead-painted surfaces.

(d) If a lead exposure hazard is determined to exist during the environmental inspection in (c) above, the commissioner shall conduct inspections of all other dwelling units of the dwelling, as applicable, as part of the investigation, to include the following:

(1) Arrange access for environmental inspections with the owner or owner’s agent;

(2) Record the resident names and contact information;

(3) Test representative painted or varnished interior surfaces for the presence of lead-based substances;

(4) Record all test results and note whether each identified lead-based substance constitutes a lead exposure hazard;

(5) Record the presence of chewed woodwork, including toys and furniture; and

(6) Record recent renovations, which might have disturbed lead-painted surfaces.

Source. #5920, eff 1-1-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

He-P 1604.04 Investigation Records.

(a) The department shall prepare written documentation after conducting an investigation that contains, at a minimum:

(1) Date(s) of the environmental inspection(s);

(2) The names, ages, and blood lead levels, if applicable, of all children aged 72 months or less who reside at or are cared for at the dwelling unit being investigated, as provided by the child’s parent or guardian;

(3) The names, physical addresses, including dwelling unit designations and mailing addresses, of all adults and children residing in the dwelling or dwelling unit(s);

(4) Findings by the department regarding the existence of lead exposure hazards, including a description of all locations tested or sampled, which surfaces meet the definition of a lead-based substance, and which surfaces meet the definition of a lead exposure hazard;

(5) The manufacturer, model number and serial number of all x-ray fluorescence (XRF) machines used to sample building components;

(6) The name, signature, and license number of the individual performing the environmental inspection(s); and

(7) The need for additional testing, and recommended steps to minimize potential lead exposure hazards.

(b) The commissioner shall:

(1) Maintain these records on file for the period of at least 5 years;

(2) Provide copies of relevant documents to all persons as designated in RSA 130-A:6, I, II, III, and IV;

(3) Remove all blood lead test results and other confidential information from all documents provided to the owner or owner’s agent of a dwelling, dwelling unit, or child care facility, or to the operator of a child care facility;

(4) In accordance with RSA 130-A:5 and A:6, issue an order of lead hazard reduction or other action when a lead exposure hazard determination has been made; and

(5) Record all orders of lead hazard reduction with the Registry of Deeds for the county in which the property is situated.

Source. #9986, eff 9-1-11 (from He-P 1612.03)

He-P 1604.05 Role of Health Authorities in Investigations.

(a) Health authorities may assist in conducting investigations under He-P 1600 in accordance with RSA 130-A:5, III, by providing the following types of assistance:

(1) Contacting owners or occupants to schedule an environmental inspection;

(2) Gathering information as described in He-P 1604.02; and

(3) Any other assistance requested by the commissioner to aid in conducting an investigation.

(b) In accordance with RSA 130-A:11, III, the commissioner shall approve a health authority to carry out investigations upon submission of the following to the department:

(1) A request in writing to the commissioner for approval to conduct investigations;

(2) Documentation of the health authority’s attendance and successful completion of one of the following:

a. An educational program for lead inspectors that is certified in accordance with He-P 1611; or

b. An educational program for risk assessors that is certified in accordance with He-P 1611;

(3) Documentation that the health authority meets all of the criteria for field use of a XRF in accordance with He-P 1608.04(d); and

(4) Written assurance that the health authority will:

a. Conduct investigations in accordance with RSA 130-A:5 and 6, and this chapter; and

b. Submit copies of all investigation related documents, such as environmental inspection results, to the department.

(d) The commissioner shall renew the approval upon submission of the following by the health authority to the department:

(1) A request in writing to the commissioner for renewal of approval to conduct investigations;

(2) When applicable, documentation of attendance and successful completion by the health authority of an approved lead inspector or risk assessor refresher training program as described in He-P 1611 and He-P 1612;

(3) Documentation that the health authority meets all of the criteria for field use of a XRF in accordance with He-P 1608.04(d); and

(4) A written assurance that the health authority will conduct investigations in accordance with RSA 130-A:5 and 6, and this chapter.

(e) The commissioner shall deny or revoke such approval in accordance with He-P 1606.03.

Source. #9986, eff 9-1-11 (from He-P 1612.05)

PART He-P 1605 ORDERS OF LEAD HAZARD REDUCTION

He-P 1605.01 Issuance of Orders of Lead Hazard Reduction.

(a) In accordance with RSA 130-A:6 and RSA 130-A:7, the commissioner shall issue an order of lead hazard reduction to an owner when an investigation performed in accordance with He-P 1604 determines that:

(1) A lead exposure hazard as defined in RSA 130-A:1, XVI(a), (b), or (c), exists at a dwelling, dwelling unit or child care facility; or

(2) A lead exposure hazard as defined in RSA 130-A:1, XVI(d), exists in:

a. Bare soil in a child’s play area; or

b. Any areas where the following combination of soil conditions exists:

1. The total surface area of the bare soil, as defined in He-P 1602.01(c), is equal to or greater than one square yard or 9 square feet; and

2. The soil is located in one or more of the following areas:

(i) Drip line/foundation area;

(ii) Bare pathways; or

(iii) Pet areas.

(b) When an investigation performed in accordance with He-P 1604 does not include testing of any or all of the bare soil, an order of lead hazard reduction shall assume that a lead exposure hazard, as defined in RSA 130-A:1, XVI(d), exists unless analysis in accordance with He-P 1608.04(b) proves otherwise.

(1) Include all information as set forth in RSA 130-A:7, II(a)–(e);

(2) Be sent to the owner by certified mail or another form of delivery that provides confirmation that the order was delivered;

(3) Be accompanied by a copy of relevant portions of RSA 130-A and He-P 1600, as applicable;

(4) Set forth corrective action; and

(5) Be sent by mail to the occupant(s) of the dwelling or dwelling unit via the United States Postal Services (USPS).

(d) If requested by an occupant of the dwelling or the guardian of a child attending the child care facility, the owner shall provide a copy of any order of lead hazard reduction issued on the property to the occupant or guardian within 10 business days of the request.

(e) The owner shall disclose, in writing, the existence of an order of lead hazard reduction prior to the sale, lease, rental or transfer of interest in the dwelling, dwelling unit or child care facility.

(f) In accordance with RSA 130-A:6, I and II, the commissioner shall notify all occupants of the dwelling of lead exposure hazard findings in common areas.

Source. #5920, eff 1-1-95; ss by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11 (from He-P 1613.02)

He-P 1605.02 Extension Requests.

(a) Any owner who has received an order of lead hazard reduction pursuant to RSA 130-A:7, II, may request an extension of the time period for lead hazard reduction as stated in the order by submitting a “Request for Extension of Time” form (January 2011 edition) to the department at least 5 business days prior to the expiration of the time frame of the order.

(b) The department shall extend the time period for lead hazard reduction in accordance with RSA 130-A:7, II(c), upon making the determination that the owner or agent has:

(1) Provided the department with a completed “Request for Extension of Time” form at least 5 business days prior to the expiration of the time frame of the order;

(2) Good cause, as defined in He-P 1602.01(u), for not completing lead hazard reduction work within the time frame ordered; and

(3) No outstanding administrative fines or court sanctions.

(c) Extensions of time for lead hazard reduction granted by the department in accordance with this section shall be in writing and set forth the department’s findings and conditions for granting the extension.

(d) If, upon completion of the time period stated in the order, or an extended time period approved by the department, the owner has not complied with the order, the department shall impose an administrative fine in accordance with He-P 1606 or seek injunctive relief in accordance with RSA 130-A:17.

(e) The commissioner shall deny a request for extension or revoke an extension already granted when it is found that:

(1) The owner is in violation of or noncompliant with one or more provisions of RSA 130-A or He-P 1600;

(2) The request for extension does not meet the criteria in (b) above; or

(3) The order for abatement is the result of the owner’s failure to maintain a current certificate of compliance – interim controls in accordance with He-P 1610.06.

(f) If an extension request is denied or revoked by the department, the denial or revocation shall be:

(1) In writing and set forth the department’s reasons for denying or revoking the extension based on this section; and

(2) Sent by certified mail or another form of delivery that provides confirmation that the denial or revocation was delivered.

(g) If, upon completion of the extension of time, the owner or owner’s agent requires additional time to comply with the order, a new request shall be submitted and reviewed in accordance with this section.

Source. #5920, eff 1-1-95; amd by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9057, INTERIM, eff 1-3-08, EXPIRED: 7-1-08

New. #9210, eff 7-19-08; ss by #9986, eff 9-1-11 (from He-P 1613.03)

He-P 1605.03 Variance Requests.

(a) Any owner, owner-contractor, licensed lead contractor, licensed lead inspector or licensed risk assessor may request a variance from compliance with one or more provisions of RSA 130-A or He-P 1600 pursuant to RSA 130-A:10, XV.

(b) A request for variance shall be submitted to the department, in writing, on a “Variance Request” form provided by the department (January 2011 edition), at least 5 business days prior to initiating the work or activity that requires a variance and include a copy of the Lead Exposure Hazard Reduction Plan (LEHRP).

(c) Prior to submission, the person making the request shall notify all residents and other persons affected by the variance request by:

(1) Providing a copy of the request, and

(2) Notifying them of their right to contact the department with any questions or concerns.

(d) Only a request for a variance from RSA 130-A or He-P 1600 shall be accepted by the department.

(e) The department shall approve a request for a variance when:

(1) The person making the request has not violated any of the provisions of RSA 130-A or He-P 1600;

(2) The department finds that approval of the request will not jeopardize the health and safety of others;

(3) The department finds that the variance request and LEHRP satisfy the intent of the rules as an alternative to complying with the statute or rule(s); and

(4) The person making the request or the owner does not have any outstanding administrative fines or court sanctions.

(f) When approving a request for a variance the department shall specify what, if any, conditions are being placed on the approval of the request.

(g) If a variance request is approved, compliance with the approved variance shall ensure that the objective or intent of the statute and rules from which the variance is sought will be accomplished.

(h) Lead hazard reduction activities that require a variance shall not be conducted until written approval, including any requirements specified by the department, is received from the department.

(i) The department shall deny a request for a variance if the request does not meet the criteria in (e) above.

(j) The department shall revoke a variance when it is found that:

(1) The person who has been granted the variance has violated or is noncompliant with one or more provisions of RSA 130-A or He-P 1600; or

(2) The work is not done in accordance with the LEHRP.

(k) If during a compliance inspection conducted in accordance with He-P 1605.04 the department determines that any of the requirements placed on the variance are not being complied with, the department shall verbally notify the person in charge of the work site during the compliance inspection and the owner to immediately:

(1) Rectify the deficiencies; or

(2) Cease all lead hazard reduction work, if applicable.

(l) If a variance request is denied or revoked by the department, the denial or revocation shall be:

(1) In writing and set forth the reasons for denying or revoking the variance; and

(2) Sent by certified mail or another form of delivery that provides confirmation that the denial was delivered.

Source. #5920, eff 1-1-95; ss by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

He-P 1605.04 Compliance Inspections.

(a) The commissioner shall conduct compliance inspections to verify compliance with the requirements of RSA 130-A and He-P 1600.

(b) When conducting compliance inspections, the commissioner shall use the following procedures:

(1) Upon request, present credentials indicating the authority to conduct such inspections to the owner, agent, tenant, lead abatement contractor, lead abatement supervisor, lead inspector, risk assessor, person(s) conducting the lead hazard reduction work, educational program manager, or laboratory director;

(2) Inspect the dwelling, dwelling unit or child care facility to determine compliance with He-P 1600;

(3) Obtain representative samples of surface coatings, fixtures, soils, or other materials when it is necessary to determine the presence of lead-based substances or a lead exposure hazard;

(4) Take photographs, if necessary, to document the inspection or lead hazard reduction work; and

(5) Inspect and, if necessary, obtain a copy of any lead inspection reports, records of employee licensure or certification, or other documents required under RSA 130-A or He-P 1600.

(1) Prepare a written report detailing the findings of the inspection that contains the following information:

a. The date of the compliance inspection;

b. The name of the owner, agent, tenant, lead abatement contractor, lead abatement supervisor, lead inspector, risk assessor, or person(s) conducting the lead hazard reduction work to whom credentials were presented, educational program manager, or laboratory director;

c. The name of the department staff conducting the compliance inspection;

d. Findings of the compliance inspection;

e. Results of any testing or analysis conducted on collected samples; and

f. Photographs taken during the compliance inspection;

(2) Maintain the report on file for a period of 5 years;

(3) Provide copies of the report, upon request to the owner or owner’s agent, manager, operator of the child care facility, occupant, risk assessor, inspector, lead abatement contractor, laboratory commissioner, training manager, or other party; and

(4) Take other enforcement actions as authorized under RSA 130-A.

PART He-P 1606 ENFORCEMENT ACTIONS

He-P 1606.01 Administrative Warnings. The department shall issue a notice of administrative warning for the first violation of those actions listed in He-P 1606.02 (i)(4)-(5), (i)(18), (i)(20), (i)(23), (i)(28)-(31) and (i)(39)-(41) below.

New. #9210, eff 7-19-08; ss by #9986, eff 9-1-11

PART He-P 1606 ENFORCEMENT ACTIONS

He-P 1606.02 Administrative Fines.

(a) The department shall impose an administrative fine upon an owner, applicant, licensee, certificate holder or an unlicensed or uncertified individual for violations of RSA 130-A, “Lead Paint Poisoning Prevention” or He-P 1600, “Lead Poisoning Prevention and Control Rules.”

(b) When the department imposes an administrative fine, it shall provide written notice, pursuant to RSA 130-A:7 and RSA 130-A:14, as applicable, which:

(1) Identifies the specific statute or rule that has been violated;

(2) Identifies the specific sanction(s) that has been imposed; and

(3) Provides the following information:

a. The right to a hearing in accordance with RSA 541-A and He-C 200; and

b. The reduction of the imposed administrative fine by 25% if fine payment is received by the department within 10 business days of receipt of the notice of the violation, basis and amount of the administrative fine, and the owner, applicant, licensee, certificate holder or unlicensed or uncertified individual waives the right to appeal the administrative fine.

(1) Payment shall be received by the department within 10 business days of receiving the written administrative fine notice unless the administrative fine is appealed as described in He-P 1607.01;

(2) Payment shall be made in the form of personal check or money order which is made payable to “Treasurer, State of New Hampshire,” or cash in the exact amount due; and

(3) Cash, money order, or certified check shall be required when any past payment to the department by personal check has been returned for insufficient funds.

(d) A person may appeal the notice of administrative fine within 10 business days as set forth in He-P 1607.01.

(e) A person may waive the right of appeal of the notice of administrative fine and pay the administrative fine within 10 business days of the date of receipt of notice.

(f) Any hearing held on an appeal under this section shall be conducted in accordance with RSA 541-A and He-C 200.

(g) An administrative fine, which is appealed and upheld, shall be paid in full within 10 business days of the date of the decision of the administrative appeals unit (AAU).

(h) RSA 541 shall govern further appeals of department decisions under this section.

(i) The department shall impose administrative fines as follows:

(1) For renting a residential unit under a written order by the commissioner or health authority for lead hazard reduction, without a valid and current certificate of compliance, in violation of RSA 130-A:8-a, III and IV, the fine shall be $5,000.00;

(2) For the failure to disclose, in writing, the existence of an order of lead hazard reduction prior to the sale, lease, rental or transfer of interest of the property in violation of RSA 130-A:8-a, V, the administrative fine shall be $1000.00;

(3) For conducting blood lead analysis on residents of New Hampshire without a current New Hampshire laboratory license, or CLIA Certification, whichever is applicable, in violation of He-P 1603.01, the administrative fine shall be $1000.00;

(4) For the failure of any collection station, laboratory or other individual that collects specimens for blood lead analysis to report all the information required by He-P 1603.02(i)(1)–(10) to the testing laboratory or to the department, the administrative fine shall be $250.00 for each item of missing or incorrect of information in a blood lead analysis;

(5) For failure by a laboratory to report results of blood lead analysis within the timelines required in violation of He-P 1603.02(j) and (k), the administrative fine shall be $200.00 for each instance;

(6) For failure to provide the commissioner with all required information, when requested, in violation of He-P 1604.02, the administrative fine shall be $250.00;

(7) For beginning to perform any remodeling, renovating, maintenance, lead hazard reduction work or any other dust generating activities after being notified that an environmental inspection shall occur, in violation of He-P 1604.03(b), the administrative fine shall be $5,000.00;

(8) For failure by an owner or owner’s agent to allow access, or to arrange access, to a dwelling or dwelling unit, or units within a multi-family dwelling for purposes of investigation, in violation of He-P 1604.03(c)(3) and (d)(1), the administrative fine shall be $500.00;

(9) For failure to comply with an order of lead hazard reduction, issued in accordance with He-P 1605.01, the administrative fine shall be $1000.00;

(10) For conducting lead hazard reduction work that requires a written variance from the department prior to receiving the department’s written decision, in violation of He-P 1605.03(h), the administrative fine shall be $1000.00;

(11) For failure to pay an administrative fine within 10 business days, in violation of He-P 1606.02(c), the fine shall be $250.00;

(12) For performing the duties of a lead abatement worker without a current lead abatement worker certificate, or a variance from the department, in violation of He-P 1612, LICENSURE AND CERTIFICAITON CRITERIA FOR LEAD PROFESSIONALS, the administrative fine shall be $250.00 per person;

(13) For performing the duties of a lead abatement supervisor without a current lead abatement supervisor license, or a variance from the department, in violation of He-P 1612, LICENSURE AND CERTIFICAITON CRITERIA FOR LEAD PROFESSIONALS, the administrative fine shall be $500.00;

(14) For performing the duties of a lead abatement contractor without a current lead abatement contractor license, or a variance from the department, in violation of He-P 1612, LICENSURE AND CERTIFICAITON CRITERIA FOR LEAD PROFESSIONALS, the administrative fine shall be $1000.00;

(15) For performing the duties of a lead inspector without a current lead inspector license, or a variance from the department, in violation of He-P 1612, LICENSURE AND CERTIFICAITON CRITERIA FOR LEAD PROFESSIONALS, the administrative fine shall be $500.00;

(16) For performing the duties of a risk assessor without a current risk assessor license, or a variance from the department, in violation of He-P 1612, LICENSURE AND CERTIFICAITON CRITERIA FOR LEAD PROFESSIONALS, the administrative fine shall be $1000.00;

(17) For failure to notify the department of intended start and end work dates or a change in the intended start and ending work dates in violation of He-P 1608.06, the administrative fine shall be $250.00;

(18) For failure to prepare the work area in a manner, which prevents the escape of lead contaminated materials, in violation of He-P 1608.07 and He-P 1608.08, the administrative fine shall be $500.00;

(19) For failure to contain lead-based substances or lead contaminated material in the work area in violation of He-P 1608.09(a), the administrative fine shall be $500.00;

(20) For failure to comply with worker safety and respiratory protection requirements, in violation of He-P 1608.09(b) – (d), the administrative fine shall be $500.00;

(21) For failure to provide for the safety of the building’s occupants during lead hazard reduction work, in violation of He-P 1608.10(a) and (e), the administrative fine shall be $1000.00;

(22) For failure to ensure the maintenance of an accurate record of individuals entering and exiting a hazard reduction work area, as required by of He-P 1608.10(b) – (c), the administrative fine shall be $200.00;

(23) For failure to clean up and dispose of waste in accordance with He-P 1608.11(a) – (f), the administrative fine shall be $1000.00

(24) For issuing a certificate of compliance without complying with all of the requirements of a clearance inspection, in violation of He-P 1608.12 or He-P 1608.14(c) or (d), the administrative fine shall be $2000.00;

(25) For failure to have a preliminary clearance inspection conducted, if required, in accordance with He-P 1608.12(b), the administrative fine shall be $500.00;

(26) For failure to document a preliminary clearance inspection as required by He-P 1608.12(d) the administrative fine shall be $250.00;

(27) For failure of a risk assessor to submit a copy of a written clearance inspection report to the department as required by He-P 1608.12(q)(3)c, the administrative fine shall be $250.00;

(28) For failure of the risk assessor to submit all the information required by He-P 1608.12(r) with the certificate of compliance, the administrative fine shall be $250.00;

(29) For failure to maintain at the work site while lead hazard reduction work is taking place all documentation required by He-P 1608.15(a), the administrative fine shall be $200.00;

(30) For failure of a lead abatement contractor to keep all business and personnel records of all lead projects for 5 years, in violation of He-P 1608.15(b), the administrative fine shall be $200.00;

(31) For utilizing or employing uncertified or unlicensed persons to perform lead hazard reduction work, or an owner performing lead hazard reduction work, without the written permission of the department, in violation of He-P 1605.03, Variance Request, the administrative fine shall be $1000.00 per uncertified or unlicensed person, or owner;

(32) For failure of a lead abatement supervisor, licensed lead abatement contractor, or owner-contractor, to remain on site when lead hazard reduction work is being carried out, in violation of He-P 1609.01(d), the administrative fine shall be $300.00;

(33) For failure of a contractor, or owner-contractor to be available to a lead abatement supervisor when lead hazard reduction work is being carried out, in violation of He-P 1609.01 (e), the administrative fine shall be $300.00;

(34) For performing lead hazard reduction work utilizing any of the prohibited practices listed in He-P 1609.02(c), the administrative fine shall be $1000.00;

(35) For certifying that a dwelling or dwelling unit is either owner occupied or off the rental market as required by He-P 1609.04(c) when the dwelling or dwelling unit is not, the administrative fine shall be $1000.00;

(36) For teaching classes without authorization by the department, in violation of He-P 1611.01(a), the administrative fine shall be $2000.00;

(37) For utilizing faculty who do not meet the requirements as described in He-P 1611.01(c) or (d) in a training program, the administrative fine shall be $500.00;

(38) For failure to notify the department within 30 business days of changes in the names and addresses of the responsible corporate department of the licensed educational company, as required by He-P 1611.01(e), the administrative fine shall be $250.00;

(39) For failure to notify the department before the start of an educational program in violation of He-P 1611.01(f), the administrative fine shall be $500.00;

(40) For failure of a program manager to maintain required educational records pursuant to He-P 1611.01(h) for a period of 5years, the administrative fine shall be $500.00;

(41) For failure to hold a class when there are at least 5 clients scheduled for the class pursuant to He-P 1611.03(a)(5)a., the administrative fine shall be $250.00;

(42) For submitting false or fraudulent information on or with an application, the administrative fine shall be $1000.00;

(43) For falsifying a lead abatement contractor license, the administrative fine shall be $1000.00;

(44) For falsifying a lead abatement supervisor license, the administrative fine shall be $1000.00;

(45) For falsifying a lead abatement worker certificate, the administrative fine shall be $1000.00;

(46) For falsifying a risk assessor license, the administrative fine shall be $1000.00;

(47) For falsifying a lead inspector license, the administrative fine shall be $1000.00; and

(48) For failure to attend the annual educational program, as required by He-P 1612.02(m), without providing the department with documentation of good cause as defined in He-P 1602.01(u), the administrative fine shall be equal to the applicable annual certification or licensing fee.

(j) If an administrative fine has been issued, and the same violation is subsequently cited or the violation has not been remedied within 30 days, a second administrative fine in the amount of twice the amount of the first fine, per violation shall be issued.

(k) For the third and all subsequent repeat violations to those cited in (j) above, or for violations that have not been remedied after 90 days, the administrative fine per violation shall be 3 times the amount of the first fine.

Source. #5920, eff 1-1-95; amd by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11; ss by #11007, eff 12-23-15

He-P 1606.03 Denial, Suspension or Revocation of a License or Certificate.

(a) The department shall deny, suspend or revoke a license or certificate if an applicant, a certificate holder or licensee:

(1) Has failed to or is unable to comply with RSA 130-A and He-P 1600;

(2) Has violated any of the provision of RSA 130-A or He-P 1600;

(3) Fails to submit a completed application that meets the requirements of He-P 1600 after being notified of and given an opportunity to supply missing information;

(4) Has failed to meet the requirements set forth in He-P 1611 or He-P 1612 for receiving a license or certificate for which the applicant is applying;

(5) Has submitted false, misleading, or fraudulent information, whether by action or omission;

(6) Has had a check returned to the department for insufficient funds and has not re-submitted the outstanding fee in the form of cash, money order or certified check within 5 business days of notification;

(7) Has failed to comply with an order of the department, administrative appeals unit, a settlement or consent agreement, or court issued decision under RSA 130-A or He-P 1600;

(8) Has failed to pay an administrative fine imposed by the department or the courts;

(9) Has issued a lead educational program completion certificate to an individual who did not meet all of the educational requirements for that certificate;

(10) Has had enforcement action taken by another state or the EPA against the applicant for lead regulation violations resulting in a current license or certificate being revoked or suspended;

(11) Or any of their representatives or employees:

a. Provides false or misleading information to the department;

b. Prevents, interferes or fails to cooperate with any inspection or investigation conducted by the department; or

c. Fails to provide requested files or documents to the department;

(12) Has knowingly committed or participated in fraud or misrepresentation in obtaining, using, or maintaining licensure or certification, including, but not limited to:

a. Performing work requiring licensure or certification at a job site without having current and valid licenses or certificates available at the job site for inspection;

b. Permitting the duplication or use of his or her license or certificate by another;

c. Performing lead hazard reduction work or inspections before receiving the appropriate license or certificate from the department; and

d. Obtaining a license or certificate through fraud or misrepresentation of educational documents, examination documents, professional registration or experience requirements; or

(13) Is cited a third time under RSA 130-A or He-P 1600 for the same violation within the last 5 inspections.

(b) When the department denies, suspends or revokes a license or certificate, it shall provide written notice, as applicable, which:

(1) Identifies the specific statute or rule that has been violated;

(2) Identifies the specific sanction(s) that has been imposed; and

(3) Contains information on the right to a hearing in accordance with RSA 541-A and He-C 200.

(c) If the department finds that the public health, safety or welfare requires emergency action and incorporates such a finding in its order, the department shall order an immediate suspension of a license or certificate pending an adjudicative proceeding, to be conducted in accordance with RSA 541-A and He-C 200.

(d) When a license or certificate is revoked by the department, the individual or educational program shall not be eligible to apply for a license or certificate for 2 years.

(e) The 2 year period referenced in (d) above shall begin on:

(1) The date of the department’s decision to revoke the license or certificate, if an administrative hearing has not been requested; or

(2) The date a decision is issued by the administrative appeals unit, if a hearing is requested.

(f) A decision by the department to deny or revoke a license or certificate shall not preclude any other enforcement action authorized under RSA 130-A, 15 USC 2681-2692, and 42 USC 4821-4856.

(g) If the individual or educational program reapplies for a license or certificate after the 2 year period as referenced in (e) above, the individual or educational program shall submit, in writing to the department, steps taken to address the violations(s) that led to the revocation.

Source. #5920, eff 1-1-95; amd by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

PART He-P 1607 APPEALS

He-P 1607.01 Appeals Procedures.

(a) Any person who wishes to appeal an enforcement action issued by the department pursuant to RSA 130-A and He-P 1600 shall make a request for a hearing in compliance with the following:

(1) The request for a hearing shall be received at the AAU within 10 business days of the date of receipt of the following:

a. An order of lead hazard reduction;

b. A notice of administrative fine(s);

c. A decision to deny an initial or renewal application; or

d. A decision to suspend or revoke a license or certificate; and

(2) The request shall be in writing, signed by the person(s) named in the order, notice or decision, or their legal representative, and shall list specific information as to why the order, notice of fine or decision was unlawful or unwarranted.

(b) The appeal shall be sent to:

Administrative Appeals Unit

Main Building

105 Pleasant St.

Concord, NH 03301

(d) The hearing shall be conducted in accordance with the provisions of RSA 541-A and He-C 200.

(e) The order, notice or decision issued by the department shall become final if the person(s) named in the order, notice or decision fails to request a hearing within 10 business days as described in (a) above.

(f) Requesting a hearing relative to the imposition of a fine does not relieve the person(s) named in the order from the responsibility of complying with the order.

PART He-P 1608 LEAD HAZARD REDUCTION REQUIREMENTS

He-P 1608.01 Inspection Requirements.

(a) All lead inspection activities shall be performed by persons licensed in accordance with He-P 1612.

(b) No person performing full inspections or risk assessments shall:

(1) Perform the lead hazard reduction work on the dwelling, dwelling unit or child care facility being inspected or assessed;

(2) Be paid, employed, have an interest in, financial or otherwise, direct or indirect, or otherwise be compensated by the contractor, the company for which the contractor is affiliated or owner-contractor, unless the owner is acting as an owner-contractor; or

(3) Be the owner of, an employee of the owner, or have an interest, financial or otherwise, direct or indirect, in the dwelling, dwelling unit or child care facility.

(1) Standards and requirements set forth in this part; and

(2) Standards and requirements set forth in the OSHA Lead in Construction Standard, 29 CFR 1926.62 (January 8, 1998 edition).

(d) A licensed risk assessor shall develop written inspection procedures containing the following elements and make the procedures available to the department upon request:

(1) A general description of sampling protocols including the selection process of components to be sampled;

(2) Testing methods to be used to inspect for the presence of lead-based substances according to type of surface and substrate;

(3) Procedures to be followed when weather conditions prohibit sampling of soil at the time of inspection;

(4) Procedures as described in (3) above shall include soil sampling within 14 calendar days after soil conditions allow for such testing; and

(5) Quality control procedures for all field measurement and sample collection methods.

(e) A lead inspector or risk assessor who is conducting an inspection for lead-based substances shall include the following in the inspection report:

(1) Date of inspection;

(2) Address of dwelling, dwelling unit(s) or child care facility;

(3) Date of construction of dwelling, dwelling unit(s) or child care facility;

(4) Unit number(s), if applicable;

(5) A description of the current use of the dwelling, dwelling unit(s) or child care facility;

(6) Name, address, and telephone number of all dwelling, dwelling unit(s) or child care facility owners;

(7) Name, legal and business address, signature, and license number(s) of each licensed inspector(s) or risk assessor(s) conducting the inspection;

(8) Name, address, and telephone number of any company or other person employing the lead inspector(s) or risk assessor(s) in that capacity;

(9) A schematic site plan of the area inspected, showing rooms within the dwelling, dwelling unit, or child care facility and their use, common areas, exterior surfaces and areas, play areas and any other relevant structures on the property, including the locations of any soil collection points;

(10) A schematic site plan of the area or a written description of all dust collection points;

(11) A precise written description of all locations tested or sampled;

(12) Each testing method and device and/or sampling procedure employed for paint, soil and dust analysis, including quality control data and, if used, the manufacturer, model number, and serial number of any X-ray fluorescent lead analyzer (XRF) device;

(13) If more than one XRF is used to conduct an inspection, the results of each surface and representative area tested to be annotated on the report to indicate the specific XRF used for testing;

(14) Identification of all surfaces which meet the definition of a lead exposure hazard;

(15) The condition of any substrate that compromises the effectiveness of the lead hazard reduction technique;

(16) All data collected using on-site testing devices including calibration check readings;

(17) Name, address, and telephone number of all laboratories conducting analysis of collected samples;

(18) All results of laboratory analysis on collected samples including paint, surface coatings, soil and dust samples;

(19) When the report is part of a risk assessment, recommendations regarding the need for additional testing;

(20) A signed certification stating, “I hereby certify that sampling and analyses have been conducted pursuant to He-P 1608.04 and accurately represents the conditions in the areas tested on this date”;

(21) The written inspection procedures as required in (d) above;

(22) A copy of the risk assessment report in accordance with He-P 1608.03(c); and

(23) A statement regarding the owner’s requirement to disclose lead hazards in accordance with 40 CFR Part 745.107.

(f) If an inspector or risk assessor becomes aware that lead hazard reduction work has not been done in accordance with RSA 130-A or He-P 1600, and such work endangers the public, the inspector or risk assessor shall provide notice to the department within 24 hours of the discovery via telephone, fax, e-mail or in writing.

(g) A notice made to the department in accordance with (f) above, shall include the following information:

(1) The date the violation occurred, if known;

(2) The address where the violation took place;

(3) The nature of the violation;

(4) The date the violation was discovered by the person submitting the notice; and

(5) The name of the individual that conducted the work, if known.

He-P 1608.02 Requirements for Full Inspections.

(a) Upon receipt of an order of lead hazard reduction, the owner shall be required to have a full inspection of the dwelling, dwelling unit or child care facility, conducted by either a licensed lead inspector or risk assessor, to identify all lead based substances and lead exposure hazards in accordance with He-P 1600.

(b) A full inspection shall consist of testing for lead-based substances including:

(1) Sampling and analysis methods as listed in He-P 1608.04 on all surfaces identified as meeting the definition of a lead exposure hazard as defined in RSA 130-A:1, XVI(a)–(c) and at least one of each type of painted, varnished, or otherwise coated component in each room of the dwelling, dwelling unit or child care facility; and

(2) Collecting soil samples for analysis in accordance with He-P 1608.04 if bare soil is located in any of the following areas:

a. In a child’s play area;

b. Within 5 feet of the foundation area; or

c. Within 100 feet of the foundation when the total surface area of the bare soil is equal to or greater than one square yard or 9 square feet.

(c) If interior or exterior components of the same type have, or are suspected to have, a different painting history, each component shall be tested.

(d) The licensed individual conducting the full inspection required by (a) above shall issue a report that complies with the requirements of He-P 1608.01(e) to the owner.

He-P 1608.03 Requirements for a Risk Assessment.

(a) A risk assessment shall be performed only by a licensed risk assessor, and in accordance with He-P 1600.

(b) A risk assessment shall be conducted as follows:

(1) Background information shall be collected regarding the physical characteristics of the dwelling, dwelling unit(s) or child care facility, and occupant use patterns that might cause lead-based paint exposure;

(2) A visual inspection shall be conducted to locate the existence of potential lead exposure hazards including paint which is located on chewable, friction or impact surfaces, or is in a damaged or deteriorated condition, and to assess the extent and causes of damages or deteriorated paint or lead exposure hazards;

(3) Each surface identified to be a potential lead exposure hazard by the visual inspection described in (2) above and having a distinct paint history, shall be tested for the presence of lead in accordance with He-P 1608.04;

(4) Single surface or composite dust samples shall be collected and then submitted to a certified laboratory for analysis in accordance with procedures set forth in He-P 1608.04(b) and (c) from the following areas:

a. In single family dwellings, the samples shall be collected from the floor and a window well, or a windowsill when a well is not accessible, in each living area, hallway and stairwell where a child under the age of 6 years is likely to come in contact with dust; or

b. In dwelling units or child care facilities, the samples shall be collected from the floor and a window well, or a windowsill when a well is not accessible, in living and common areas to the dwelling unit or child care facility where a child under the age of 6 years is likely to come in contact with dust; and

(5) Soil samples shall be collected and analyzed in accordance with the procedures set forth in He-P 1608.04(b) when bare soil is located in any of the following areas:

a. In a child’s play area;

b. Within 5 feet of the foundation area; or

c. Within 100 feet of the foundation when the total surface areas of the bare soil is equal to or greater than one square yard or 9 square feet.

(1) All information required by He-P 1608.01(e);

(2) Any background information collected pursuant to (b)(1);

(3) The results of any previous inspections or analyses for the presence of lead-based paint, or other lead exposure hazards;

(4) Recommendations, if warranted, for a follow-up risk assessment, and as appropriate, any further action;

(5) A description of interim controls or abatement options for each type of lead exposure hazard identified; and

(6) If the use of an encapsulant or enclosure is recommended, the report shall recommend a maintenance and monitoring schedule for the encapsulant or enclosure.

Source. #5920, eff 1-1-95; ss by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

He-P 1608.04 Sampling and Analysis Methods.

(a) Testing for the presence of lead in paint shall be conducted by one or more of the following methods:

(1) Field measurement by XRF using standards set forth in the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995, and the 1997 revision of Chapter 7;

(2) Laboratory analysis of paint chips by atomic absorption spectrometry using standards set forth in Appendix 14.1 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995, and the 1997 revision of Chapter 7; or

(3) Any testing method using recognized published procedures or methods developed and validated by the laboratory using assayed materials, inter-lab comparisons or proficiency test samples.

(b) All collection and analysis of samples from paint chips, dust, soil or other media shall comply with standards set forth in Appendix 13.1 through Appendix 13.3 and Appendix 14.1 through Appendix 14.3 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995, and the 1997 revision of Chapter 7.

(c) Laboratories performing lead analyses on environmental samples shall have successfully participated in an EPA sanctioned or recognized proficiency test program, including but not limited to the Environmental Lead Proficiency Analytical Testing (ELPAT) Program or the EPA National Lead Laboratory Accreditation Program (NLLAP).

(d) The following requirements shall apply if field measurements by XRF are used:

(1) The user shall have a currently valid license or registration for the XRF instrument used, issued by the department’s radiological health section in accordance with He-P 4000;

(2) The calibration of each XRF unit shall be checked as follows:

a. The calibration of XRF instruments shall be checked against the manufacturer’s standards for that instrument in accordance with the manufacturer’s specifications for that instrument;

b. The calibration check of each XRF instrument used shall be conducted at the beginning and end of each inspection and at intervals throughout the inspection in accordance with manufacturer’s specifications for the instrument;

c. If the XRF instrument does not produce a reading within the manufacturer’s specified tolerance for each standard, the instrument shall be removed from use until such time as the unit is again operating within the manufacturer’s specified tolerance for each standard; and

d. The results of all calibration checks shall be recorded on the inspection report;

(3) Except as provided in (4) below, XRF measurements shall be adjusted to compensate for substrate interference utilizing substrate correction protocols set forth in the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, 1997 revision of Chapter 7;

(4) Adjustment of XRF measurements to compensate for substrate interference shall not be required when the manufacturer’s “XRF Performance Characteristics Sheet”, a document based on methodology developed jointly by the United States Environmental Protection Agency and the United States Department of Housing and Urban Development, indicates that substrate corrections are not necessary; and

(5) Surfaces shall not be considered to contain a lead-based substance when the XRF reading is less than 1.0 mg/cm2 and the manufacturer’s recommended tolerance of the machine is factored into the calculation of the reading.

(e) When conducting full inspections in multifamily housing that has more that one dwelling unit or child care facility in the same building, complex, or development, the inspection shall be conducted in accordance with the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, 1997 revision of Chapter 7.

Source. #5920, eff 1-1-95; amd by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

He-P 1608.05 Lead Exposure Hazard Reduction Plans (LEHRPs).

(a) When an order of lead hazard reduction has been issued on the dwelling, dwelling unit or child care facility, a LEHRP shall be required before any lead hazard reduction work is performed.

(b) A LEHRP shall be based on the performance and review of a full inspection conducted in accordance with He-P 1608.02.

(c) A LEHRP shall be developed by a licensed risk assessor, a licensed lead inspector, a licensed lead abatement contractor, an owner-contractor, or an owner or any other person who has been granted a variance by the commissioner in accordance with He-P 1605.03.

(d) If a LEHRP is developed by an owner or any other person who has been granted a variance by the commissioner, the LEHRP shall be approved by a licensed risk assessor or a licensed lead abatement contractor, prior to being implemented.

(e) At a minimum, the LEHRP shall contain the following:

(1) Actions to be taken to abate or manage by interim controls all lead exposure hazards identified in the full inspection;

(2) Measures to be taken to ensure worker protection, including hazard recognition and control procedures;

(3) Measures to be taken to ensure the protection of building occupants from exposure to any lead-based paint hazards by describing procedures that will be taken during all abatement, interim control, and in-place management work; and

(4) Measures to isolate and contain all abatement and interim control areas to prevent the release of lead-based substances and to ensure compliance with He-P 1608.07 and He-P 1608.08.

Source. #5920, eff 1-1-95; amd by #6096, eff 9-22-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

He-P 1608.06 Notification.

(a) When an order of lead hazard reduction has been issued by the commissioner pursuant to RSA 130-A:5 or RSA 130-A:7, or by a local health department pursuant to RSA 130-A:11, II, the owner, or, when applicable, the contractor, shall notify the department in writing using a “Notification of Work” form (January 2011 edition) developed by the department of the intended start and end date(s) of work at least 5 days before work begins.

(b) Notification of changes to the start or end date(s) documented on the “Notification of Work” form shall be made by the owner or contractor as follows:

(1) By contacting the department by telephone at least 48 hours before the new start or end date, and resubmit to the department another “Notification of Work” form within 48 hours of the telephone notification; or

(2) By resubmitting to the department by facsimile or e-mail another “Notification of Work” form that meets the requirements set forth in this section.

(c) The owner shall provide written notification to the occupants with access to common areas affected by the lead hazard reduction work at least 5 days in advance of the proposed lead hazard reduction work, that includes:

(1) Scheduled dates and work hours for the lead hazard reduction work;

(2) Identification of work site(s); and

(3) Information on the alternative entrance or exit to be used during the work.

He-P 1608.07 Preparation of Interior Work Areas.

(a) Prior to beginning any lead hazard control activity on the interior of any dwelling, dwelling unit or child care facility, all interior lead hazard reduction work areas shall be prepared in accordance with Table 8.1 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995, and the following requirements:

(1) All plastic sheeting used in containment and barrier systems shall be polyethylene sheeting at least 6-mils thick, or an equivalent material intended to contain leaded dust and debris, and securely taped with waterproof tape;

(2) All polyethylene sheeting and sealant materials shall:

a. Be maintained to prevent the release of lead or lead-contaminated materials from the work areas;

b. Remain in place and intact until clean-up for the preliminary inspection when one layer shall remain in place;

c. Be removed before the final clearance inspection; and

d. Be handled in accordance with He-P 1608.11;

(3) All furniture and related movable and non-movable objects including, but not limited to, refrigerators, stoves and food preparation counters remaining in the work area, shall be covered with polyethylene sheeting and taped securely at all seams and at all junctures with the floor by waterproof tape;

(4) When heating, ventilation or air conditioning (HVAC) intake or exhaust vents are located in a lead hazard reduction work area, the HVAC system shall be shut down in the work area and vents sealed with polyethylene sheeting and waterproof tape;

(5) If a break or tear occurs in any polyethylene sheeting used to seal the HVAC system:

a. The HVAC system at the site of the break shall be visually inspected by the person conducting the lead hazard reduction work; and

b. Any visible lead contamination shall be cleaned by a cycle of vacuuming with a HEPA vacuum, wet washing with a general all-purpose or lead-specific cleaner, and a repeat HEPA vacuuming;

(6) Floor sheeting shall comply with the following:

a. Sheeting shall be sized to minimize seams;

b. A minimum of 2 layers of 6-mil polyethylene sheeting, or an equivalent material intended to contain leaded dust and debris, and sealant materials shall be maintained to prevent the contamination of flooring with lead or lead-contaminated materials; and

c. If a break or tear occurs in the bottom sheet of any polyethylene that is covering carpeting, the carpet shall be cleaned prior to the clearance inspection by:

1. A thorough vacuuming with a HEPA vacuum;

2. Shampoo or steam cleaning using a general all-purpose or lead-specific cleaner; and

3. A second vacuuming with a HEPA vacuum when the carpet is dry; and

(7) A mini-containment area may be built by surrounding the work area with temporary walls to allow small areas to be addressed without contaminating the entire room.

(b) Prior to removing lead-based substances or beginning any other lead hazard reduction work, warning signs shall be posted in accordance with the following:

(1) Signs shall be posted at all entrances and exits of the dwelling, dwelling unit or child care facility;

(2) All signs shall be at least 8.5 inches by 14 inches, and include the phrase “Lead Hazard, Keep Out,” in bold lettering at least 3/4 inches high; and

(3) In common areas that are to be abated in dwellings occupied by 2 or more households or a child care facility, the signs shall be posted at all entrances and exits of the dwelling or child care facility and include the phrase, “Caution Lead Hazard, Do Not Remain in Work Area Unless Authorized” in bold lettering at least 3/4 inches high.

(c) In addition to all of the requirements under (a) and (b) above, when removal of lead-based substances is used as an abatement method, a worker changing area shall be:

(1) Set up adjacent to the abatement work area;

(2) Constructed in accordance with Chapter 9 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995.

(d) No person shall exit the abatement work area without removing his or her abatement work clothes, gloves, boot or shoe covers, and respirator in the designated changing area.

(e) The requirements of (c) and (d) above shall not apply when removal of lead-based substances:

(1) Occurs on a surface of less than 15 linear feet of woodwork; or

(2) Involves the repair of less than 20 square feet of plaster, gypsum board, or comparable material.

Source. #5920, eff 1-1-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11 (from He-P 1605.10)

He-P 1608.08 Preparation of Exterior Work Areas.

(a) Prior to beginning any lead hazard control activity on the exterior of any structure or dwelling, the area shall be prepared in accordance with Table 8.2 and Table 8.3 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995, and the following requirements:

(2) All polyethylene sheeting and sealant materials shall be maintained to prevent the release of lead or lead-contaminated materials from the work areas;

(3) Cleanly laundered drop cloths may be used to cover grass, shrubbery, and other vegetation that may otherwise be damaged if plastic sheeting were used;

(4) All lead substances and lead dust shall be contained in the work area by measures that include, but are not limited to, the following:

a. Doors, windows, or other openings on the side of a building where any wet sanding, component removal, or other dust-generating exterior activity is planned shall be closed and sealed with polyethylene sheeting on the outside;

b. The ground or floor surface under all work areas shall be covered with polyethylene sheeting or drop cloths as described in (3) above as follows:

1. When sheeting or a drop cloth is placed on the ground, it shall be raised at its edges at least 3 inches and shall extend out from the foundation at least 3 feet per story being abated, with a minimum of 5 feet and a maximum of 20 feet to contain all waste;

2. The sheeting or a drop cloth shall be securely fastened to the foundation or exterior wall and sealed with waterproof tape;

3. The sheeting or a drop cloth shall be sealed at all seams with waterproof tape; and

4. When sheeting is placed on an exterior floor, it shall be raised at its edges at least 3 inches to contain all waste and shall cover the entire floor; and

c. If the constant wind speed is over 20 miles per hour, exterior abatement producing dry wastes or lead-containing dust shall not be performed unless vertical shrouds are constructed which contain all lead dust within an area where there is no public access; and

(5) All exterior work areas shall be posted with the warning signs required under He-P 1608.07(b).

He-P 1608.09 Worker Protection.

(a) All work areas where employees perform lead hazard reduction work shall be arranged, equipped, operated and conducted in a manner which will prevent lead-based substances or lead contaminated materials from escaping from the work areas, in accordance with the requirements set forth in He-P 1608, He-P 1609 and He-P 1610.

(b) No employee shall be permitted to eat, drink, smoke, chew gum or tobacco, or apply cosmetics in any lead hazard reduction work area.

(c) All individuals and employees who enter into an area where lead hazard reduction work is occurring shall comply with all applicable worker safety and respiratory protection requirements including, but not limited to, proper personal protective equipment, respiratory protection equipment, respirator training, medical clearance, and documented fit test as specified by OSHA 29 CFR 1910.134 (January 8, 1998 edition).

(d) All personal protective equipment required (c) above shall be provided to the employees by their employer free of charge.

Source. #5920, eff 1-1-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

He-P 1608.10 Control of Access.

(a) Until a clearance inspection has been completed and the dwelling, dwelling unit or child care facility has been found to pass the criteria set forth in He-P 1608.12, the lead abatement contractor, owner-contractor, lead abatement supervisor, or any person(s) granted a variance by the commissioner shall:

(1) Make certain that all occupants have been relocated outside the work area in accordance with Table 8.1 through Table 8.3 of the United States Department of Housing and Urban Development (HUD) Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995; and

(2) Limit access and entry into any lead containment area to the following:

a. The owner of the property where the lead hazard reduction work is occurring, or the owner’s designee;

b. Licensed or certified lead professionals;

c. Any federal, state, or local official with jurisdiction over one or more of the activities within the work area; and

d. Non-licensed or non-certified workers only after a preliminary clearance inspection has been obtained as described in He-P 1608.12(a)–(e).

(b) The lead abatement contractor, owner-contractor, lead abatement supervisor or any person(s) granted a variance by the commissioner shall maintain an access control log for persons who have entered any lead hazard reduction work area as allowed in (a)(2) above.

(c) All individuals entering and exiting the lead hazard reduction work area shall provide the following information on the access log:

(1) Date of entry;

(2) Printed name and signature of person entering the lead hazard reduction work area;

(3) Employer of person entering the lead hazard reduction work area; and

(4) Time of entry and exit.

(d) The lead abatement contractor, owner-contractor, lead abatement supervisor, or any person(s) granted a variance by the commissioner shall ensure that the lead hazard reduction work does not violate state laws, rules or local ordinances for health, building and fire safety for access to the dwelling, dwelling unit or child care facility.

(e) Whenever lead hazard reduction work is being performed in any common or shared area of an occupied dwelling or child care facility, the following shall apply:

(1) The lead abatement contractor, owner-contractor, lead abatement supervisor, or any person(s) granted a variance by the commissioner shall conduct work in phases, or shall ensure that an uncontaminated passage that is in compliance with all state laws, rules or local ordinances for health, building and fire safety exists for entry and egress from the dwelling unit or child care facility for all occupants to use; and

(2) When it is not possible to preserve an uncontaminated passage for entrance and exit of all occupants from the dwelling in compliance with all state laws, rules or local ordinances for health, building and fire safety:

a. Lead hazard reduction work shall only be conducted in any common area when all occupants whose access is affected by the lead hazard reduction work are out of the building during all work periods provided that:

1. The work area shall be cleaned with a HEPA vacuum at the end of each work period;

2. The HEPA vacuuming shall be followed by a wet washing using a general all-purpose or lead-specific cleaner; and

3. After the work area is completely dry, a repeat HEPA vacuuming shall be done until all surfaces are free of visible dust and debris; or

b. The owner shall comply with the provisions of RSA 130-A:8-a regarding the relocation of building occupants whose access is affected by the lead hazard reduction activities for the duration of the work, which hinders access.

Source. #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11

He-P 1608.11 Clean-up Requirements.

(a) The lead abatement contractor, owner-contractor, lead abatement supervisor, or the person(s) granted a variance by the commissioner to perform lead hazard reduction work shall be responsible for the following:

(1) All lead debris and lead contaminated materials shall be stored, managed, and disposed of in compliance with this section; and

(2) At the end of each workday, daily clean-up of the work area and all other areas where lead dust or lead contaminated materials are present shall consist of:

a. Removing all waste materials and debris generated by lead hazard reduction activities and securing in a designated storage area that is inaccessible to the public;

b. Cleaning all horizontal surfaces with a HEPA vacuum;

c. Inspecting polyethylene sheeting, and patching and repairing, if necessary; and

d. Securing the area to ensure that unauthorized persons do not have access.

(b) Daily clean-up of the interior shall not be required when all occupants, furnishings and belongings have been removed from the unit.

(c) Prior to any preliminary clearance inspection, the lead abatement contractor, owner-contractor, lead abatement supervisor, or the person(s) granted a variance by the commissioner to perform lead hazard reduction work shall be responsible for the work areas being cleaned as follows:

(1) All equipment used in lead hazard reduction work shall be cleaned with a general all-purpose or lead-specific cleaner or vacuumed with a HEPA vacuum prior to removal from the work area;

(2) All polyethylene sheeting and covering shall be wet misted;

(3) With the exception of the bottom layer of polyethylene covering the floor, all misted polyethylene shall be removed, with the sheeting used as a barrier to separate the contaminated area from uncontaminated areas being removed last;

(4) The misted polyethylene shall be folded in upon itself to capture the dust, placed in a double 4-mil, single 6-mil or equivalent plastic bag, and removed from the lead hazard reduction work area in compliance with this section;

(5) All lead-containing waste materials, including debris, used sealing tape, polyethylene sheeting, mop heads, sponges, air and vacuum filters, and disposable clothing, shall be placed in a double 4-mil, single 6-mil or equivalent container and disposed of in compliance with this section;

(6) All surfaces in the lead hazard reduction work area or containment area shall be cleaned by a cycle of HEPA vacuuming, wet washing with a general all-purpose or lead-specific cleaner and a repeat HEPA vacuuming; and

(7) The sequence of vacuuming, wet cleaning and vacuuming laid out in (6) above shall be repeated until no visible dust or residue is left in the containment area.

(d) Upon completion of lead hazard reduction work in the interior areas of a dwelling, dwelling unit or child care facility, the area shall be cleaned as follows:

(1) A final clean-up shall be conducted no sooner than one hour after the completion of lead hazard reduction work or surface preparation for repainting or sealing of lead-based substances;

(2) The final clean-up shall be performed in accordance with (c) above;

(3) All polyethylene sheeting covering the floor shall be completely removed; and

(4) All rugs, carpets or other fabric surfaces shall be steam cleaned.

(e) All wastes generated by lead hazard reduction work, including wastes generated during clean-up and preparation, shall be tested, stored, transported, managed, and disposed of in compliance with federal requirements under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 to 6992k, RSA 147-A, and Env-Wm 400 and Env-Wm 600.

(f) In addition to the requirements of (e) above, each owner-contractor or lead abatement contractor engaged in a lead hazard reduction project shall remove all lead-containing waste material from the site not later than 48 hours after completion of the final clean-up required above.

Source. #9986, eff 9-1-11 (from He-P 1605.12)

He-P 1608.12 Clearance Inspections.

(a) Preliminary and final clearance inspections shall be conducted by a licensed lead inspector or risk assessor who:

(1) Has not performed the lead hazard reduction work;

(2) Has not been paid, employed, or otherwise compensated by anyone performing or involved in the lead hazard reduction work or the company for which the person is affiliated, unless the owner or their agent is acting as the owner-contractor;

(3) Is not an employee of the owner, or the owner, of the dwelling, dwelling unit, or child care facility at which the clearance inspection is being conducted; and

(4) Does not have a financial or other interest, direct or indirect, in the dwelling, dwelling unit, or child care facility at which the clearance inspection is being conducted.

(b) A preliminary clearance inspection shall be conducted when removal of the component(s) or surface coatings is completed but before the painting of the component(s).

(1) All components to be replaced have been removed;

(2) All lead hazard coatings requiring removal have been removed to the bare substrate and surfaces prepared for repainting or sealing;

(3) One layer of sheeting remains on the floor;

(4) Areas within the work area are visibly free of dust and debris; and

(5) Other surfaces requiring lead hazard reduction have been addressed.

(d) The passing of a preliminary clearance inspection shall be documented on the LEHRP and access log maintained at the property and shall include:

(1) The name and license number of the person performing the preliminary clearance inspection;

(2) The date of the inspection; and

(3) Documented on the LEHRP only, the rooms or areas that were inspected.

(e) Upon passing a preliminary clearance inspection, non-licensed workers shall be permitted to repaint the old components or replace the removed components with new components.

(f) A final clearance inspection shall be conducted after completion of lead hazard reduction work on the interior or exterior of a dwelling, dwelling unit or child care facility, including:

(1) A visual assessment, described in (g)–(i) below;

(2) Surface dust sample collection and analysis, described in (j), (k) and (n) below; and

(3) If lead hazard reduction work has occurred on lead-contaminated soil, soil inspection and soil sample collection and analysis, described in (m) and (n) below.

(g) When conducting a final clearance inspection, the lead inspector or risk assessor shall:

(1) Visually examine all surfaces previously identified as a lead-based substance or a lead exposure hazard in any lead inspection report, or presumed to be a lead-based substance or lead exposure hazard, to determine if:

a. All lead exposure hazards have been abated in accordance with He-P 1608 and He-P 1609 or managed through interim controls in accordance with He-P 1608 and He-P 1610;

b. All surfaces that had been stripped to the bare substrate have been recoated in accordance He-P 1610.02(e)(5)-(7) and (f)(4);

c. There has not been a change in condition or function that would create a lead exposure hazard; and

d. All visible dust and debris have been removed;

(2) Visually examine all other surfaces in the work areas and areas within 5 feet of the designated work area to ensure that no visible dust or debris is present;

(3) Visually examine the grounds around the dwelling, dwelling unit or child care facility to ensure that all waste and debris have been removed, and that leaded dust or paint chips were not transferred outside; and

(4) Review the results of the “Pull-Off Tape Test for Adhesion” or the “Assessment of Painted Surfaces for Adhesion” (American Society for Testing and Materials (ASTM) E 1796-03) as described in He-P 1609.03(c)–(g), to verify the proper number of tests were performed and all surfaces encapsulated were tested and passed if an encapsulant product was used.

(h) If the lead inspector or risk assessor determines through the visual assessment required in (g) above that lead exposure hazards, visible dust or debris remain in the work area or adjacent areas:

(1) The clearance inspection procedure shall halt;

(2) The dwelling, dwelling unit or child care facility shall fail the clearance inspection;

(3) The inspector or risk assessor shall immediately notify the lead abatement contractor and the owner or owner’s agent verbally, and in writing within 24 hours of the inspection, of the failure and the reasons for the failure; and

(4) After the dwelling, dwelling unit or child care facility has been re-cleaned, another final clearance inspection, conducted in accordance with (f) above, shall be performed.

(i) If, during a second or subsequent final clearance inspection, the lead inspector or risk assessor determines through the visual assessment required in (g) above, that lead exposure hazards, visible dust or debris remain in the work area or adjacent areas and finds that a lead exposure hazard still exists:

(1) The lead inspector or risk assessor shall immediately notify the department, the lead abatement contractor, and the owner or owner’s agent verbally, and in writing within 24 hours of the inspection, of the failure and the reasons for the failure; and

(2) The lead abatement contractor or the person performing the lead hazard reduction work shall reimburse the owner for the cost of all future clearance inspections and sample testing.

(j) If the lead inspector or risk assessor determines through the visual assessment required in (g) above that all lead exposure hazards have been controlled and there is no visible dust or debris remaining in the work area or adjacent areas, the lead inspector or risk assessor shall:

(1) Allow at least 24 hours after the completion of repainting or varnishing before collecting surface dust wipe samples; and

(2) Allow at least one hour after final clean-up activities have been completed before collecting surface dust wipe samples.

(k) Dust wipe samples shall be collected as follows:

(1) When lead hazard reduction work has occurred and there were no designated non-work areas, dust wipe samples shall be collected from at least one windowsill, one window well, and the floor as follows:

a. In at least 4 rooms of the dwelling unit if there are 4 or more rooms; and

b. In all rooms of the dwelling unit if there are less then 4 rooms;

(2) When lead hazard reduction work has occurred where there was designated work and non-work areas, dust wipe samples shall be collected as follows:

a. From a windowsill, a window well, and a floor, in up to 4 treated rooms; and

b. One floor sample shall be collected from outside the containment area located in the main traffic pathway and within 10 feet of the doorway entering the work area;

(3) In addition to (1) and (2) above, the following samples shall be taken in the common areas:

a. One dust wipe sample from the floor for every 2,000 square feet;

b. One dust wipe sample from outside the containment area; and

c. Dust wipe samples as requested by the department based on findings of a compliance inspection conducted in accordance with He-P 1605.04;

(4) When lead hazard reduction work has occurred on an exterior surface(s), a dust wipe sample shall be taken from:

a. An exterior window sill on each floor where exterior work was performed plus an additional window well from a lower floor; and

b. An adjacent horizontal surface in the outdoor living area, including but not limited to a porch floor, railing, exterior sill or stoop; and

(5) When lead hazard reduction work has occurred in a multi-family dwelling with similarly constructed and maintained dwelling units, random sampling shall be conducted in accordance with 40 CFR Part 745.227(e)(9)(i)-(iii) (April 8, 2004 edition).

(l) Notwithstanding (k) above, when the purpose of the final clearance inspection is to issue a subsequent certificate of compliance – interim controls for the interior and interior common areas in accordance with He-P 1610.06(a) and when renovation, remodeling or other dust generating activities have not occurred, dust wipe samples shall be collected from a windowsill, a window well, and a floor, in no more than 3 areas where a child would likely spend time.

(m) A final clearance inspection on lead-contaminated soil shall include:

(1) Visual examination of exterior horizontal and accessible surfaces adjacent to the areas in which soil lead hazard reduction activities were conducted to ensure that no visible dust or debris are present; and

(2) Collection of random samples from the area in accordance with He-P 1608.04(b).

(n) Analysis of all dust wipe and soil samples shall be conducted pursuant to He-P 1608.04(b) and (c).

(o) The results of the dust wipe and soil sample analysis shall meet the following standards:

(1) Clearance lead levels in interior dust for a single dust wipe shall be:

a. Less than 40 micrograms per square foot on floors;

b. Less than 250 micrograms per square foot on interior window sills; and

c. Less than 400 micrograms per square foot on window wells;

(2) Clearance lead levels in interior dust for a composite dust wipe sample shall be calculated by dividing the clearance level as described in (1) above by half of the number of subsamples in the composite sample;

(3) The number calculated in (2) above shall be the clearance standard to be met for the composite sample on the floors, interior window sills or window wells sampled;

(4) Lead levels in exterior dust shall be less than 800 micrograms per square foot; and

(5) Lead levels in replacement soil shall be less than 200 parts per million (ppm) pursuant to He-P 1609.02(e).

(p) When any residual dust or soil level exceeds the clearance standards set forth in (o) above:

(1) The lead inspector or risk assessor shall immediately notify the lead abatement contractor and the owner or owner’s agent verbally, and in writing within 24 hours of the receipt of sample results;

(2) The lead inspector or risk assessor shall require that all the components represented by the failed sample that were not previously tested or that failed the dust test shall be cleaned again as described in He-P 1608.11(c)(6) and (7);

(3) After completing the cleaning described in (2) above, the lead inspector or risk assessor shall collect dust wipe samples from:

a. All components which failed the previous dust test; and

b. At least one component not previously tested for each component type that failed, except in the case of a floor where the sample shall be taken from a previously untested floor area;

(4) The lead inspector or risk assessor shall have dust wipe and soil samples analyzed in accordance with (n) above; and

(5) The lead abatement contractor or the person performing the lead hazard reduction work shall reimburse the owner for the cost of all subsequent sample testing.

(q) When a lead inspector or risk assessor conducts a final clearance inspection and finds that no lead exposure hazards remain and that all dust wipe and soil sample results are below the clearance levels set forth in (o) above, he or she shall:

(1) Notify the lead abatement contractor and the owner of such findings verbally within 24 hours of the receipt of all dust wipe and soil sample results;

(2) Document a written clearance inspection report detailing the results of the inspection within 14 business days of receipt of all dust wipe and soil sample results; and

(3) Submit a copy of the written clearance inspection report to the following, within 14 business days of receipt of all dust wipe and soil sample results:

a. The owner of the dwelling, dwelling unit or child care facility;

b. The lead abatement contractor; and

c. The department for any dwelling, dwelling unit or child care facility under an order of lead hazard reduction or other enforcement action pursuant to RSA 130-A or He-P 1600.

(r) The written clearance inspection report in (q)(2) above shall include the following:

(1) The date of the clearance inspection;

(2) A copy of the certificate of compliance or the certificate of lead safe, issued in accordance with He-P 1608.14;

(3) The printed name of the person that performed the final clearance inspection;

(4) Name, address, and telephone number of any company or other person employing the inspector or risk assessor in that capacity;

(5) Name and address of all contractors who worked at the dwelling, dwelling unit, or child care facility;

(6) A schematic site plan of the area inspected, showing rooms within the dwelling, dwelling unit or child care facility and their use, common areas, exterior surfaces, and exterior areas including the locations of soil collection points;

(7) A schematic site plan of the area or a written description of the locations of dust sampling collection points;

(8) If not previously submitted to the department, a copy of the original full inspection report and the date that the lead inspector or risk assessor verified that each surface or component requiring lead hazard reduction has been addressed;

(9) The specific testing device(s), their serial number and sampling procedures employed;

(10) Name, address, and telephone number of all laboratories conducting analysis of collected samples;

(11) Copies of the results of all laboratory analyses and testing of all samples taken during the inspection; and

(12) A description of all measures necessary to ensure the continued control of potential lead exposure hazards in the inspected dwelling pursuant to He-P 1608.16.

(s) The owner shall provide a copy of the written clearance inspection report required by (q)(2) above to occupants affected by the lead hazard reduction work within 5 days of receipt of the report by:

(1) Posting the report in a common area or entry for at least 5 days; or

(2) Hand delivering of a copy of the report to an adult occupant of each occupied dwelling unit in the dwelling.

(t) If, during a third or subsequent clearance inspection, the lead inspector or risk assessor determines that a lead exposure hazard still exists, the department shall take appropriate enforcement action against the contractor to ensure compliance, as applicable.

Source. #9986, eff 9-1-11 (from He-P 1606.07)

He-P 1608.13 Standards for Re-occupancy.

(a) When an order of lead hazard reduction has been issued and the occupants have been relocated outside of the dwelling unit as required by RSA 130-A:8-a, the dwelling, dwelling unit or child care facility shall not be re-occupied until:

(1) A clearance inspection conducted pursuant to He-P 1608.12 determines that no lead exposure hazards remain;

(2) The department has received a certificate of compliance for the interior, including common areas; and

(3) The owner requests a variance in accordance with He-P 1605.03 and receives written approval from the department to re-occupy the dwelling unit.

(b) When a variance requested under (a)(3) above is granted by the commissioner, the owner shall be required to complete all exterior lead hazard reductions work and obtain a certificate of compliance within the time frame determined by the commissioner.

Source. #9986, eff 9-1-11 (from He-P 1605.16)

He-P 1608.14 Certificates.

(a) After a clearance inspection has been completed and it has been determined that no lead exposure hazards remain, the licensed risk assessor shall issue one of the following:

(1) Certificate of compliance – abatement, if the dwelling has been issued an order of lead hazard reduction and abatement was the only method used to control the lead exposure hazards;

(2) Certificate of compliance – interim controls, if the dwelling has been issued an order of lead hazard reduction and interim controls have been used in whole or in part to control the lead exposure hazards;

(3) Certificate of lead safe; or

(4) Certificate of lead free.

(b) Any certificate issued pursuant to (a) above shall contain:

(1) The dwelling address;

(2) The order number, if applicable;

(3) The risk assessor’s printed name and license number;

(4) The risk assessor’s signature;

(5) The date the certificate was issued; and

(6) One of the following certification statements:

a. When abatement has been the only method used to control the lead hazards:

“I hereby certify that sampling and analyses was performed in accordance with He-P 1608.04 and He-P 1608.12 and accurately represents the conditions in the areas tested on this date. I further certify that no lead exposure hazards were detected during the inspection, and dust wipe and soil sample analyses complied with 1608.12(o). This certificate of compliance – abatement for this dwelling, dwelling unit, or child care facility shall remain in effect as long as there continues to be no lead exposure hazards present, all encapsulants or enclosures remain in place and undamaged and all required records regarding in place management practices are completed and maintained as required by He-P 1600.”;

b. When interim controls have been used in whole or in part to control the lead exposure hazards:

“I hereby certify that sampling and analyses was performed in accordance with He-P 1608.04 and He-P 1608.12 and accurately represents the conditions in the areas tested on this date. I further certify that no lead exposure hazards were detected during the inspection, and dust wipe and soil sample analyses complied with 1608.12(o). This certificate of compliance – interim controls for this dwelling, dwelling unit, or child-care facility shall remain in effect for one year as long as there continues to be no lead exposure hazards present and all required records regarding in place management practices are completed and maintained as required by He-P 1600.”;

c. For a certificate of lead safe:

“I hereby certify that sampling and analyses was performed in accordance with He-P 1608.04 and He-P 1608.12 and accurately represents the conditions in the areas tested on this date. I further certify that no lead exposure hazards were detected during the inspection, and dust wipe and soil sample analyses complied with 1608.12(o). This certificate of lead safe for this dwelling, dwelling unit, or child care facility shall remain in effect as long as there continues to be no lead exposure hazards present, all encapsulants or enclosures remain in place and undamaged and all records regarding required in place management practices are completed and maintained as required by HUD.”; or

d. For a certificate of lead free:

“I hereby certify that sampling and analyses was performed in accordance with He-P 1608.04 and He-P 1608.12 and accurately represents the conditions in the areas tested on this date. I further certify that no lead exposure hazards were detected during the inspection, and dust wipe and soil sample analyses complied with 1608.12(o). This certificate of lead free for this dwelling, dwelling unit, or child care facility shall remain in effect as long as there continues to be no lead exposure hazards present.”

(c) A certificate of compliance for the interior shall not be issued until all interior areas have passed a clearance inspection, including, when applicable, interior common areas.

(d) A certificate of compliance for the exterior shall not be issued until the exterior, exterior common areas, and bare soil for the dwelling, dwelling unit or child care facility have passed a clearance inspection.

(e) When the commissioner finds through a compliance inspection or review of in-place management documentation that the interior, common areas, exterior or soils of a dwelling, dwelling unit or child care facility fails to meet the standards for maintenance of the certificate of compliance, the commissioner shall invalidate the certificate of compliance and enforce the order of lead hazard reduction.

(f) A licensed risk assessor shall issue a certificate of lead safe to the owner of a dwelling, dwelling unit or child care facility, who has not received an order of lead hazard reduction, when:

(1) A risk assessment or full inspection is performed in accordance with Appendix 13.1 through 13.3 and Appendix 14.1 through 14.3 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995 and the 1997 revision of Chapter 7, and it has been determined that all lead-based substances are being controlled and are in a condition and location that do not pose a lead exposure hazard; or

(2) Lead-based paints or similar coatings, lead contaminated dust or lead contaminated soils are not found as a result of:

a. XRF testing performed in accordance with standards set forth in the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995 and the 1997 revision of Chapter 7;

b. Dust sampling performed in accordance with Appendix 13.1 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995; and

c. Soil sampling performed in accordance with Appendix 13.3 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, June 1995.

(g) A licensed risk assessor shall issue a certificate of lead free to the owner of a dwelling, dwelling unit or child care facility, who has not received an order of lead hazard reduction, when:

(1) No lead-based paints or similar coatings, building materials or lead contaminated soils are found as a result of testing conducted in accordance with (f)(2) above; and

(2) At least one of the following is true:

a. An architect or project engineer responsible for the construction of a dwelling, dwelling unit or child care facility built after January 1, 1970, signs a statement that no lead-based substance was used as a building material in the building; or

b. An architect or project engineer responsible for the rehabilitation of a dwelling or child care facility, signs a statement declaring that:

1. All components of the building, which contained lead, have been removed;

2. The dwelling or child care facility has undergone complete rehabilitation of interior and exterior components and surfaces; and

3. No lead-based substance was used as a replacement building material.

Source. #9986, eff 9-1-11 (from He-P 1608.08)

He-P 1608.15 Record-Keeping Requirements.

(a) The following shall be maintained at the project site for the duration of the lead hazard reduction project:

(1) A current copy of He-P 1600 and RSA 130-A;

(2) A copy of the LEHRP, developed specifically for the lead reduction work of the project;

(3) Copies of currently valid certificates and licenses for the contractor and all individuals engaged in the lead hazard reduction work;

(4) Results of all substrate assessments such as the “Pull-Off Tape Test for Adhesion” or the “Assessment of Painted Surfaces for Adhesion” (ASTM E 1796-03), showing satisfactory results, if encapsulants are utilized;

(5) Copies of any letters from the department relative to the use of encapsulant products, interim controls, variances, requests or extensions of time to achieve compliance with the order of lead hazard reduction;

(6) A 24-hour contact number for the person in charge of conducting the lead hazard reduction work, which shall be posted at all entrances to the work site at all times;

(7) A written description of procedures to be followed during medical emergencies, including the name, phone number and location of the nearest hospital or emergency medical service unit;

(8) Copies of any written respiratory programs, if subject to OSHA Lead in Construction Standard 29 CFR 1926.62 (January 8, 1998 edition) to include:

a. Current certified fit test results for all individuals wearing respirators at the site; and

b. Medical clearance records allowing workers to wear respirators; and

(9) An access control log for persons who have entered any lead hazard reduction work area in accordance with He-P 1608.10.

(b) Written records as described in (a) above shall be maintained by the lead abatement contractor for each lead hazard reduction project and shall be retained for a minimum of 5 years after the completion of the project.

(c) When an order has been issued in accordance with He-P 1605.01, the owner of the dwelling, dwelling unit or child care facility shall retain written documentation for the duration of ownership and all documentation shall by made available at the time of sale, lease, rental or transfer of interest in the dwelling, dwelling unit or child care facility to the subsequent owners.

(d) Written records required by (c) above shall, at a minimum, include the following:

(1) A written lead hazard reduction report prepared by the licensed lead contractor who performed the work or the person granted a variance from the commissioner to perform lead hazard reduction activities containing:

a. The name and address of the lead abatement contractor, and a copy of the lead abatement contractor’s license valid at the time of lead hazard reduction activities or the name and address of the person granted a variance to do the work;

b. The names, addresses, and copies of certificates valid at the time of lead hazard reduction work for all lead abatement supervisors and all lead abatement workers who were involved in the project, if applicable;

c. A copy of the written LEHRP prepared for the project in accordance with He-P 1608.05;

d. Results of all substrate assessments such as the “Pull-Off Tape Test for Adhesion” or the “Assessment of Painted Surfaces for Adhesion” (ASTM E 1796-03) showing satisfactory results, if encapsulants are utilized;

e. A copy of the written final clearance report as detailed in He-P 1608.12(r); and

f. Any waste management, transportation and disposal records required under He-P 1608.11(e) and (f);

(2) Copies of all variances, permission to use interim controls or other communications with the department; and

(3) Copies of any orders of lead hazard reduction, notices of violation or administrative fines, or consent agreements issued in regard to the lead hazard reduction project.

Source. #9986, eff 9-1-11 (from He-P 1605.07)

He-P 1608.16 In-Place Management Standards.

(a) In-place management shall be implemented when an order has been issued on the dwelling, dwelling unit or child care facility in accordance with He-P 1605.01 and:

(1) Lead hazard reduction work has been completed and a certificate of compliance has been issued in accordance with He-P 1608.14; and

(2) Lead-based substances remain in the dwelling, dwelling unit or child care facility.

(b) In-place management may be used by any person as a means of preventing lead-based substances from becoming lead exposure hazards.

(1) Provide a written notice to the tenants of the dwelling, dwelling unit or child care facility requesting them to notify the owner or agent of any damaged or deteriorating painted surface;

(2) Respond to the notification of deteriorating or damaged paint within:

a. Ten business days if a child resides in the affected unit; or

b. Twenty-five business days if a child does not reside within the affected unit;

(3) Conduct visual inspections of each dwelling, dwelling unit or child care facility to detect any change in condition of components, surfaces, or areas which may result in the creation of a lead exposure hazard:

a. At least once every 6 months;

b. Prior to re-occupancy after unit is vacated by previous occupant; and

c. Upon request of an occupant of a dwelling, dwelling unit or child care facility;

(4) Document in writing the findings of the visual inspection with the following information:

a. The date of the visual inspection;

b. A written description of all observations made pursuant to (3) above; and

c. The signature of the owner or person conducting the visual inspection;

(5) Maintain the written documentation of the visual inspection for a period of 5 years;

(6) Provide a copy of the written documentation of the visual inspection to the commissioner upon request;

(7) Clean all horizontal surfaces in the area that are accessible to children by:

a. Washing with a solution of a general all-purpose or lead-specific cleaner and water; and

b. Rinsing completely with clean water; and

(8) Conduct cleaning prior to re-occupancy after unit is vacated by previous occupant.

(d) When in-place management practices are implemented and an annual clearance inspection is conducted as required by He-P 1610.06 for the renewal of a certificate of compliance – interim controls, that inspection may count as one of the inspections required by (c)(3)a. above.

(e) When a lead exposure hazard is found to exist and involves less than 6 square feet of surface area, correction of the hazard shall be considered in-place management, and the hazard shall be remedied with interim controls in accordance with He-P 1610.02 through He-P 1610.05.

(f) When remedying a hazard described in (e) above, a property owner shall not engage in any practice prohibited under He-P 1609.02(b).

(g) When a lead exposure hazard is found to exist and involves more than 6 square feet of surface area, the property owner shall:

(1) Remedy the hazard in accordance with either He-P 1609 or He-P 1610; and

(2) Maintain documentation of the lead hazard reduction work and make the documentation available to the department upon request.

Source. #9986, eff 9-1-11 (from He-P 1607.01)

He-P 1608.17 Review and Validation of Certificates.

(a) The department shall conduct random compliance inspections to validate the issuance of any certificate of compliance.

(b) Any person may request the department to review and validate any certificate issued pursuant to He-P 1608.14, in accordance with RSA 130-A:10, III, by filing a written request with the department including:

(1) The name and address of the requester;

(2) The address and location of the dwelling, dwelling unit or child care facility that is the subject of the request;

(3) The name and address of the owner, if known; and

(4) The name and address of the licensed inspector or licensed risk assessor who performed the inspection, if known.

(c) Within 60 days after receiving a request for review of a certificate, the department shall contact the requester, the owner, and the risk assessor who prepared the certificate and conduct a site visit and inspection, as necessary, to determine the existence of any lead exposure hazard, in accordance with the procedures set forth in He-P 1605.04.

(d) If a lead exposure hazard is discovered during a compliance inspection, the commissioner shall invalidate the certificate of compliance and enforce the order of lead hazard reduction.

(e) The department shall not conduct a review and validation for the following:

(1) Buildings which do not meet the definition of a dwelling, dwelling unit or child care facility; or

(2) Dwellings, dwelling units or child care facilities built after 1978.

Source. #9986, eff 9-1-11 (from He-P 1608.09)

PART He-P 1609 Standards FOR LEAD ABATEMENT

He-P 1609.01 Abatement Requirements.

(a) Abatement activities shall not include:

(1) Renovation, remodeling, landscaping, or other activities, when such activities are not designed to permanently eliminate lead-based paint hazards, but are designed to repair, restore, or remodel a given structure or dwelling, even though these activities might incidentally result in a reduction or elimination of lead-based paint hazards; or

(2) Interim controls, operations and maintenance activities, or other measure and activities designed to temporarily, but not permanently, reduce human exposure or likely exposure to lead-based paint hazards.

(b) All abatement activities shall be conducted in accordance with RSA 130-A and He-P 1600.

(c) Abatement activities shall only be performed by persons licensed or certified in accordance with He-P 1612, except that the following abatement activities may be performed by any person:

(1) Installation of exterior siding;

(2) Installation of interior carpeting or other floor covering where paint is not disturbed;

(3) Enclosure of bare soil using asphalt or concrete;

(4) Replacement of a door by removing from hinge pins;

(5) Surface preparation prior to the application of encapsulants per He-P 1609.03;

(6) Application of encapsulants per He-P 1609.03;

(7) Removal of window sash and installation of a window sash pack, which consists of a unit containing lead-free sashes, channels, and well cover; and

(8) Installation of lead-free replacement parting beads, window stop, and window sashes.

(d) Abatement activities shall only be performed when either a certified lead abatement supervisor, licensed lead abatement contractor, or owner-contractor is present at the site.

(e) During any abatement activity where there is a lead abatement supervisor present on the site, a licensed lead abatement contractor or owner-contractor shall be available to the supervisor, at a minimum, by telephone.

Source. #5920, eff 1-1-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11 (from He-P 1605.03)

He-P 1609.02 Abatement Methods.

(a) One or more of the following lead hazard reduction techniques shall be used on lead-based painted surfaces to meet abatement standards:

(1) Removal of lead-based paint by:

a. Removal and replacement of any component with a component that is free of lead-based substances; or

b. Removal of the surface coating down to the substrate by:

1. Wet sanding;

2. Utilizing of non-flammable chemical strippers, which do not contain methylene chloride;

3. Removing the lead containing component for off site stripping and then reinstalling;

4. Scraping with the aid of a caustic paint remover;

5. Misting the surface with water and wet scraping;

6. Controlled low-level heating element, which produces a temperature no greater than 700 degrees Fahrenheit;

7. Machine sanding using a sander equipped with a HEPA local vacuum exhaust sized to match the tool to feather edges and prepare substrate for repainting or sealing;

8. Machine planing using a planing tool equipped with a HEPA local vacuum exhaust sized to match the tool;

9. Abrasive blasting using a HEPA local vacuum exhaust sized to match the tool;

10. Dry scraping within 6 inches of an area that would present an electrical hazard if other methods were used; or

11. Any other method approved by the department through a variance in accordance with He-P 1605.03;

(2) Application of an encapsulant product that is:

a. Approved in accordance with He-P 1609.03(a);

b. Used only on those surfaces specified by the manufacturer; and

c. Applied in accordance with the manufacturer’s instructions;

(3) Enclosure of the surface so that no lead containing surface remains by:

a. First labeling the surface to be enclosed with a warning, “Danger: Lead-Based Paint” written in permanent ink with lettering no less than one inch high horizontally and vertically approximately every 16 square feet on large components, such as walls and floors, and every 4 linear feet on small components, such as baseboards;

b. Securely fastening and affixing all junctions of floors, walls, ceilings, and other joined surfaces by fastening with nails, screws or an adhesive recommended by the manufacturer for the covering so that the covering remains in place and the physical integrity of the covering remains intact to prevent removal, and then caulking and sealing all seams;

c. Covering floor surfaces with wall to wall carpeting, vinyl flooring, ceramic tile, wood or stone, or similar durable material intended for use as flooring;

d. Covering all other interior surfaces with wood, vinyl, aluminum, plastic or similar durable materials, except that vinyl wallpaper and plastic sheeting shall not be allowed;

e. Covering walls or ceiling surfaces with gypsum board, fiberglass mats, vinyl wall coverings, formica, tile, paneling or other material that does not tear, chip or peel;

f. Enclosing exterior surfaces with aluminum, vinyl siding, wood, concrete or similar durable material after covering with breathable building wrap; and

g. Enclosing exterior trim with aluminum or vinyl coil stock;

(4) Reversal of all component parts of a woodwork surface such that:

a. No surface containing a lead exposure hazard remains exposed; and

b. All seams are caulked and sealed; and

(5) Permanent fastening of window sashes to eliminate friction surfaces if not otherwise prohibited by any state laws, rules or local ordinances for health, building and fire safety.

(b) The materials used in (a)(3) above shall:

(1) Comply with all state laws, rules or local ordinances for health, building and fire safety; and

(2) Only be used in places that the manufacturer intended them to be used.

(1) Dry scraping or sanding except as allowed by (a)(1)b.11. above;

(2) Dry sweeping of lead contaminated areas or surfaces;

(3) Dry abrasive blasting using sand, grit or any other particulate without a HEPA local vacuum exhaust tool;

(4) Utilizing mechanical sanding, planning, grinding or other removal equipment without a HEPA local vacuum exhaust tool;

(5) Torch or open-flame burning;

(6) Propane-fueled heat grids;

(7) Heating elements operating above 700 degrees Fahrenheit;

(8) Uncontained hydroblasting or high-pressure wash;

(9) Use of methylene chloride or solutions containing methylene chloride in interior work areas; and

(10) Encapsulants that have not been approved under He-P 1609.03(a).

(d) The following precautions shall be used when conducting lead-based substance removal on properties listed in or determined eligible for the National Register of Historic Places:

(1) When an orbital sander with a HEPA local vacuum exhaust sized to match the tool is used, such device shall be used only as a finishing or smoothing tool;

(2) When a belt sander with a HEPA local vacuum exhaust sized to match the tool is used, such device shall be used only on flat surfaces; and

(3) When abrasive blasting with a HEPA local vacuum exhaust sized to match the tool is performed, such method shall only be used on cast and wrought iron, steel or concrete substrates under the supervision of a professionally qualified art or architectural conservator.

(e) When soil lead levels are equal to or greater than 5,000 parts per million (ppm), soil abatement shall occur by one of the following:

(1) The contaminated soil shall be completely excavated to a depth of at least 6 inches and replaced with soil containing less than 200 ppm lead;

(2) When the soil below 2 inches from the surface has been found to contain lead below 1,500 ppm, the contaminated soil shall be excavated to a depth of at least 2 inches, the remaining rototilled, and the excavated soil replaced with soil containing less than 200 ppm lead; or

(3) The contaminated soil shall be completely enclosed with asphalt or concrete.

(f) During soil abatement:

(1) Surface run-off and the windblown spread of lead-contaminated soil shall be prevented by either:

a. Keeping bare soil wet during the entire period of abatement; or

b. Temporarily covering exposed sites with polyethylene sheeting with the covering secured in place at all edges and seams;

(2) Soil removal activities shall not be conducted when:

a. The constant wind speed exceeds 20 miles per hour; or

b It is raining in such a manner as to create surface run-off of contaminated soil; and

(3) All contaminated soil shall be disposed of in accordance with He-P 1608.11(e) and (f).

He-P 1609.03 Encapsulant Products and Their Use.

(a) Encapsulant products shall be approved in accordance with RSA 130-A:1, VII, or (p) and (q) below prior to their use.

(b) Except for a licensed lead abatement contractor or owner-contractor, any person who wishes to use an encapsulant product shall request permission from the department in writing prior to initiating the work or activity and include a copy of the LEHRP describing the components that encapsulant products are requested to be used on.

(1) After passing substrate assessment testing using the “Pull-Off Tape Test for Adhesion” or the “Assessment of Painted Surfaces for Adhesion” (ASTM E 1796-03), for each architectural system, element or building component where an encapsulant product is to be used;

(2) Only after all surface preparation, and any other phases of lead hazard reduction work, including painting, component removal or both, is complete;

(3) In accordance with the manufacturer’s criteria; and

(4) In accordance with ASTM E 1796-03 Standard Guide for Selection and Use of Liquid Coating Encapsulation Products for Leaded Paint in Buildings.

(d) Encapsulant products shall not be used on any surface(s) that:

(1) Fails the substrate assessments tests such as the “Pull-Off Tape Test for Adhesion” or the “Assessment of Painted Surfaces for Adhesion” (ASTM E 1796-03); or

(2) Is not recommended for encapsulation or restricted by the product manufacturer.

(e) Surface preparation as described in (c)(2) shall include:

(1) Cleaning and deglossing with a strong detergent or similar deglossing agent or by wet sanding, if necessary;

(2) Making minor repairs such as filling holes with plaster or spackling; and

(3) Paint stabilization of the interior, exterior or both, as described in He-P 1610.02, as required.

(f) All encapsulant debris generated through the application process and any unused encapsulant not suitable for application shall be disposed of in accordance with the encapsulant manufacturer’s instructions.

(g) When encapsulant products have been used and the dwelling, dwelling unit or child care facility has no documentation of passing the substrate assessment or the substrate assessment test has been failed for any architectural system, element or building component, the risk assessor shall not issue a certificate of compliance – abatement.

(h) The owner shall perform a visual inspection of the encapsulated surfaces as recommended by the manufacturer and as follows:

(1) 30 days after application;

(2) 6 months after application;

(3) Annually thereafter; and

(4) Whenever there is a change in tenant occupancy.

(i) The visual inspection required by (h) above shall determine whether the encapsulant has maintained its integrity and is not:

(1) Cracked;

(2) Peeling;

(3) Sagging;

(4) Bubbling;

(5) Water damaged or evidencing other moisture related problems;

(6) Blistering;

(7) Open to the environment in a manner that could damage the encapsulated area; or

(8) Otherwise altered in a manner which jeopardizes its protective qualities.

(j) If signs of wear or deterioration, as described in (i) above, are found during the visual inspection, the owner shall visually inspect the encapsulated surfaces at least every 3 months for the next 6 months, then annually thereafter.

(k) If the encapsulation fails to maintain its integrity or if repairs are needed and the affected area involves less than 6 square feet of surface, the repair shall be considered in-place management and shall be remedied in accordance with the encapsulant manufacturer’s recommendations, He-P 1608, and He-P 1610.02 through He-P 1610.05.

(l) When repairing a surface as described in (k) above, a property owner shall not engage in any practice prohibited under He-P 1609.02(c).

(m) When a repair of the affected area involves more than 6 square feet of surface area, the property owner shall remedy in accordance with He-P 1608 and either He-P 1609 or He-P 1610, including the requirement for a clearance inspection with dust wipes for the area where work occurred.

(n) In addition to the record keeping requirements of He-P 1608.15, the owner shall maintain the following records for the life of the encapsulant product:

(1) Documentation of:

a. The name of the encapsulant product applied;

b. The results of the “Pull-Off Tape Test for Adhesion” or the “Assessment of Painted Surfaces for Adhesion” test (ASTM E 1796-03);

c. The location of the encapsulant application; and

d. The date of encapsulant application; and

(2) Written documentation of the visual inspections required by (h) through (j) above.

(o) The owner shall make all records required by (n) above available to:

(1) The commissioner upon request; and

(2) An owner or entity upon the sale, lease, rental or transfer of interest in the dwelling, dwelling unit or child care facility.

(p) The commissioner shall approve encapsulant products for lead hazard reduction work that have been tested and meet or exceed:

(1) ASTM E 1795-04, Standard Specification for Non-Reinforced Liquid Coating Encapsulation Products for Leaded Paint in Buildings; or

(2) ASTM E 1797-04, Standard Specification for Reinforced Liquid Coating Encapsulation Products for Leaded Paint in Buildings.

(q) Manufacturers shall submit the following documentation to the commissioner prior to the encapsulation product being approved:

(1) Documentation in the form of a performance testing report showing:

a. Compliance with the applicable ASTM standard;

b. That all testing was conducted by an independent and National Voluntary Laboratory Accreditation Program (NVLAP) certified testing laboratory; and

c. The minimum dry film thickness at which the lead encapsulant product meets or exceeds the requirements of the applicable ASTM standard in (p) above for interior and/or exterior use; and

(2) Documentation showing that the encapsulation product:

a. Is warranteed by the product manufacturer to perform for at least 20 years as a durable barrier between the lead-based paint and the environment in locations or conditions similar to those of the planned application; and

b. Is formulated with an FDA-approved anti-ingestant ingredient which deters oral contact with the cured film and which discourages ingestion of delaminated coatings.

Source. #5920, eff 1-1-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11 (from He-P 1605.09)

He-P 1609.04 Abatement Alternatives.

(a) When an order of lead hazard reduction has been issued pursuant to He-P 1605.01, the following abatement alternatives shall be allowed:

(1) The use of interim controls as allowed under He-P 1610;

(2) Destruction of the dwelling or child care facility;

(3) Removal of the dwelling or dwelling unit from the rental market;

(4) The property no longer houses a child care facility; or

(5) Other abatement alternatives approved by the commissioner in accordance with (f) below.

(b) When the dwelling or child care facility has been completely destroyed, the owner shall submit to the department:

(1) A signed statement declaring that the property has been completely destroyed; and

(2) A certificate of compliance – abatement for the soils and any remaining structures which remain under the order of lead hazard reduction, such as an outbuilding.

(1) Obtain a certificate of compliance for abatement or interim controls, in accordance with He-P 1608.14, for all areas requiring lead hazard reduction such as the common areas, exterior of the building, outbuildings, and soil;

(2) Comply with one of the following:

a. Submit to the department a statement declaring that the dwelling unit has been removed from the rental market and that it shall not return to the rental market until the order has been satisfied; or

b. Submit to the department a statement declaring that the dwelling unit is owner occupied as defined by He-P 1602.01(ap) and that it shall not return to the rental market until the order has been satisfied; and

(3) On an annual basis, prior to the expiration of the current statement, submit to the department one of the statements required in (2) above.

(d) When the entire dwelling has been removed from the rental market as allowed by RSA 130-A:8-a, III, and it is the only building on the lot, the owner shall, on an annual basis and prior to the expiration of the current statement, submit to the department a statement that the dwelling continues to remain off the rental market and that it shall not return to the rental market until the order has been satisfied.

(e) When a single family dwelling has been removed from the rental market as allowed by RSA 130-A:8-a, III, and the property is owner occupied as defined by He-P 1602.01(ap), the owner shall, prior to the expiration of the current statement, submit to the department a statement declaring that the dwelling continues to be owner occupied and will not return to the rental market until the order has been satisfied. Such statement shall be provided annually for 5 years from the date that the first statement was received and every 2 years thereafter.

(f) If the owner wishes to use alternative abatement methods not provided by He-P 1600, the owner shall:

(1) Submit a written variance request to the commissioner in accordance with He-P 1605.03 describing in detail what alternative methods they would like to use and describe how the proposed procedures will provide the same level of protection as that which is provided by abatement or interim controls; and

(2) Receive approval from the commissioner prior to using alternative abatement methods.

Source. #5920, eff 1-1-95; ss by #7181, eff 12-24-99; ss by #7495, eff 5-23-01; ss by #8039, eff 2-13-04; ss by #8932, eff 7-6-07; ss by #9986, eff 9-1-11 (from He-P 1605.02)

PART He-P 1610 STANDARDS FOR INTERIM CONTROLS

He-P 1610.01 Interim Control Standards.

(a) He-P 1610 shall apply to any owner or person who has been issued an order of lead hazard reduction and who has chosen to utilize interim controls as a means of temporarily reducing lead exposure hazards on a dwelling, dwelling unit or child care facility.

(b) All interim control activities shall be conducted in accordance with RSA 130-A and He-P 1600.

(c) An owner, owner-contractor, licensed lead abatement contractor, licensed lead inspector or licensed risk assessor shall request permission in writing from the commissioner to use interim controls as an alternative to abatement by submitting a “Request for Use of Interim Controls” form (January 2011 edition) and a copy of the LEHRP as described He-P 1608.05 to the department at least 5 business days prior to the anticipated start date of lead hazard reduction work.

(d) Interim control work shall not be conducted until written approval is received from the department.