Contractors: Lead dust regulations aren’t necessary

City committee asks Eudaly's staff to 'identify what's broken and needs to be fixed'

Some contractors say lead dust regulations aren't necessary when it comes to tearing down properties like this one on NE 10th Avenue in the Sabin neighborhood. (Daniel Forbes, Pamplin Media)
Some contractors say lead dust regulations aren't necessary when it comes to tearing down properties like this one on NE 10th Avenue in the Sabin neighborhood. (Daniel Forbes, Pamplin Media)

PORTLAND, Ore. (Portland Tribune) — Appearing before builders, contractors and others at a Portland Bureau of Development Services committee meeting last Thursday, Marshall Runkel struck a conciliatory pose. But the builders weren’t buying a proposal from his boss, Commissioner Chloe Eudaly, to revamp housing demolitions in Portland with an eye towards limiting the spread of dangerous lead dust.

Referring to the “sweeping” regulation, Rob Humphrey, vice chair of the Development Review Advisory Committee, pressed Runkel: “I’d like to see a statement in the proposal of what’s broken. Identify what’s broken and needs to be fixed.”

Eudaly’s proposal, first reported by the Tribune last week, would require contractors to remove lead-containing, “window frames, doors, door frames and siding” prior to demolition. Exceptions would be made for homes built after 1960 and those testing negative for lead.

Humphrey, who works as a permit facilitator helping builders run the BDS applications maze, said such requirements aren’t needed. “We already have certified companies doing this,” he told Runkel. “We make sure we know about any hazardous material, and that no one gets hurt.”

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That became a refrain from the DRAC members representing building interests. Michael Harrison, a lobbyist for Oregon Health and Science University who’s been involved in several OHSU construction projects, said that in “90 percent of cases builders hire certified contractors who are doing the right thing.”

That claim, echoed by two other DRAC members, was not backed up by any documentation. A Portland Tribune review of more than 100 demolition permit application packages found some two dozen certifications filled out incompletely or incorrectly, making it impossible to know if the contractor found lead paint on the building.

In addition, another permit facilitator, Kevin Partain of Urban Visions, usually stated on the demolition applications he filed that a survey of asbestos and lead paint would take place in future. But there is no documentation that such work was done. BDS reports that Partain handled 67 of the bureau’s 354 total demolition projects in 2016 or just shy of one in five. In 2015, Partain facilitated one in six permits.

DRAC member Justin Wood of Fish Construction NW, Inc. did not attend the meeting but sent a statement saying contractors already practice what Eudaly is calling for. (Partain has facilitated three demolition applications for Fish.) “If lead or asbestos is found in the home, then we hire licensed contractors who specialize in hand remediation and removal of these items,” Wood wrote. “The homes are not demolished until the hazardous materials are removed.”

Wood’s boss, Jeff Fish, in an interview with the Portland Tribune, said there’s no need to remove siding or frames that have been painted with lead-based paint.
“There’s no reason to suppress the dust,” Fish said. “There’s no lead dust in the air…. You can spend all kinds of money doing stupid stuff.”

In an email, Wood said he was traveling away from his office and couldn’t provide specific properties that had received “hand remediation” prior to demolition.
He wrote, “If lead or asbestos is found in a home and they are at levels that are required to be remediated or removed, then yes they are.”

Portland City Commissioner Chloe Eudaly speaks about tenants issues at a City Council Meeting on February 2, 2107. (KOIN)
Portland City Commissioner Chloe Eudaly speaks about tenants issues at a City Council Meeting on February 2, 2107. (KOIN)

But while the state regulates asbestos removal currently, there are no laws on lead levels prior to demolition.

Wood also said contractors must account for both asbestos and lead when they dispose of demolition materials. “All Portland Metro area disposal sites want us to provide a report with the construction debris that it is free from lead and asbestos.”

However, the percent of lead in a load of demolition material reaching the landfill, which includes sheetrock, unpainted timber, flooring and roofing material, is significantly less than what comes off a building during demolition.

For example, tests done on a house demolished earlier this year at 4015 NE 10th Ave. found very high lead content in the exterior siding paint (19 percent lead). Yet a test for its lead leachability done by the owner’s environmental consultant pegged it at only 3 percent of the legal limit for the landfill.

Eudaly’s proposal now goes to a DRAC Demolition Subcommittee where BDS staffer Nancy Thorington will be helping to revise the language. Runkel said he’s prepared for a “deep dive with the Demolition Subcommittee over many meetings to get the details right.” Then, at some point, he’ll start talking with his counterparts on other commissioners’ staffs.

In a phone interview after Thursday’s meeting, Demolition Subcommittee member Robert McCullough said it will be important to track the details of the legislation. “The builders aren’t going to take out an ad saying that lead is good,” he said. “They’ll go to work on the fine print.”

One looming detail is the question of enforcement – and specifically the fines for any violation of new regulations. The proposal refers only to a fine “X times the cost of the permit.” (Total permitting costs for a typical unit in Portland are around $25,000 according to BDS spokesman, Dave Austin.)

After the meeting, Runkel said fines were “up for debate.”

BDS Interim Director Rebecca Esau, interviewed after the meeting, said she thought $10,000 for noncompliance could serve as a “floor.” The “ceiling,” she said, “has to be something that hurts.” Otherwise, violating the regulation becomes “just another cost of doing business.

McCullough said the fine “has to be at least $25,000 – it can’t be less.

Historically, BDS staff have not done field investigations to ensure compliance with removal of hazardous materials at demolition sites. There’s no mention of site inspections in Eudaly’s proposal, and Runkel has previously spoken of relying on neighbors with cameras to serve as the city’s enforcement.

Esau said she’s awaiting her marching orders from the city but thinks devoting the time of one-and-a-half staff members to field enforcement is “reasonable” to police the 330 demolitions per year that Portland has averaged since 2014.

McCullough said it’s not surprising that contractors and builders oppose new regulations that will add time and cost to their projects. But he senses a different mood at the Bureau of Developmental Services, which not only has a new interim director, but also a new commissioner overseeing operations.

“My money’s on Eudaly,” he said. “She hasn’t been captured by BDS. That’s a lot different than before.”