Specifications for the removal of paint that contains lead or other toxic metals should establish an owner’s expectation for worker protection, environmental compliance, protection of adjacent workers and/or the public, and waste management. A well-written specification will provide clear and concise language for the method(s) of coating removal and corresponding containment and ventilation requirements, establish requirements and acceptance criteria for any visual or instrument monitoring, and define the time frames and content for any project submittals. Poorly prepared lead paint removal specifications can lead to challenges when comparing bids and dealing with construction phase disagreements, costly change orders and potential litigation. This article presents ten examples of questionably written requirements from actual lead paint removal specifications, discusses resulting problems that may occur and proposes alternate specification language.
As seen in JPCL/PaintSquare October 2016
“Environmental monitoring such as air, water, soil and sediment sampling shall be conducted throughout the project as appropriate to characterize and prevent releases outside of the containment.”
This specification requirement doesn’t do a very good job of defining the expectations for environmental monitoring on the project. As a contractor trying to bid work governed by this specification, there should be a number of red flags raised as a result of this very generic, blanket statement. First and foremost, this statement forces the contractor to read the mind of the specifier — a dangerous proposition. And from a specifier’s standpoint, this statement leaves the environmental monitoring entirely at the discretion of the contractor without setting any guidelines or parameters. Questions left unanswered by this statement include the following, at a minimum.
What type of air monitoring is the specifier requiring? Is regulated area air monitoring to be conducted using personal sampling pumps? Or is the specifier more concerned with the quality of the air beyond the regulated area (high-volume ambient air monitoring), and if so, are they interested in total suspended particulates (TSP) and/or respirable particulate matter (PM-10)? These are very different types of air monitoring, with different data outcomes, different purposes and vastly different costs.
Regarding soil sampling, how many samples is the specifier requesting be collected? Will the number and location of samples be selected in accordance with SSPC-TU 7, “Conducting Ambient Air, Soil and Water Sampling During Surface Preparation and Paint Disturbance Activities”? And are samples to be collected only in areas where hazardous waste is anticipated to be stored and/or beneath the paint removal equipment in the lay-down area or elsewhere?
What acceptance criteria will be used for the air monitoring and soil sampling? If ambient air monitoring is conducted, will the results be compared to the National Ambient Air Quality Standards (NAAQS) criteria for TSP-lead or some other local acceptance standard? Will there be an allowance to convert the acceptance criteria to daily and adjusted daily allowable concentrations as described in SSPC-TU 7? Will soil sampling results be compared to an established standard or will pre-project geometric means be compared to post-project geometric means in order to determine whether paint removal operations contributed to the existing soil conditions?
At what frequency should air monitoring be performed — initially (during the first 5 days of blast-cleaning), daily, periodically?
For what metals will air and soil samples be analyzed? Is the concern only for the presence of lead or should consideration be given to analysis for any additional toxic metals that may be present in the coating being removed or in the abrasive being used?
The specifier in this scenario would have made the bids more responsive and the project a lot simpler for the resident engineer and the contractor had the type of monitoring, frequency of monitoring, acceptance criteria and analytical parameters been defined up front in the specification.
“Visible emissions shall be determined in accordance with SSPC-Guide 6 (Latest Edition), Section 5.5.1, Method A. Visible emissions shall not exceed Level 1, which limits emissions to a cumulative duration of no more than one (1) percent of the workday.”
There are two different sets of concerns related to the specification requirements described in Example 2. First, the opening sentence indicates that visible emission assessments shall be conducted in accordance with the latest version of SSPC-Guide 6, “Guide for Containing Debris Generated During Paint Removal Operations,” Section 5.5.1, Method A. Were the reader to review the latest version of SSPC-Guide 6 (May 2015), he or she would find that Section 5.5.1 refers to Section 6 of SSPC-TU 7. This document, while the appropriate reference, was not included in the References section of the specification. Additionally, when referring to Section 6 of SSPC-TU 7, the reader would find himself or herself reading a description of guidelines for Area or Perimeter Air Monitoring, while the section of SSPC-TU 7 related to conducting visible emission evaluations is actually included in Section 8. The specifier should always verify that all of the references included are not only current, but relevant to the work, and that the appropriate sections are being referenced. The other alternative is simply not to reference a particular section.
The second sentence defines the acceptance criteria that will be used to evaluate whether visible emissions are acceptable for this project. However, the statement omits a fairly important piece of information — at what frequency should the assessments be performed? Imagine the potential conflicts if the frequency of visible emission assessments remains undefined. The contractor may indicate that he or she intends to do one 15-minute assessment for the entire work shift, yet emissions are occurring from containment throughout the day and occupants of neighboring private residences are filing complaints that their children are being exposed to harmful dust. If the specification had indicated that 15-minute assessments were to be performed once an hour during dust-producing operations, modifications could have been made to the containment system to limit the emissions and the complaints, and potential lawsuits may be avoided.
The specifier must verify that all references are current and applicable to avoid any confusion. Likewise, the level of detail when specifying environmental monitoring should always include the frequency of assessment. In this particular scenario a single sentence could have been added indicating that visible emission assessments are to be performed at least four times per day.
“A report of waste accumulation shall be generated on a weekly basis for each location giving total volumes of waste accumulated. The quantity of hazardous and non-hazardous waste materials generated and stored each work day shall be reported to and approved by the Engineer. The daily log shall be maintained by the Contractor and made available to the Engineer upon request.”
These references were pulled from the same specification. In fact, they are from the same section within the same specification. Do you notice anything out of alignment? Regarding reporting requirements — should the quantity of waste generated be documented daily or weekly? The statements presented in this example shouldn’t cause anyone too much distress in the field, but they serve as a real-world example of how contradictory requirements can make their way into a specification. This example also amplifies the importance of a thorough review of the draft specification, especially sections containing information related to like topics, prior to finalization and inclusion into the bid package.
Another example of contradictory language is provided in Example 4 below, with additional and potentially more severe consequences than those presented in Example 3.
“The Contractor shall provide environmental protection such that zero visible dust, as determined by the Engineer, is evident when cleaning and painting operations are performed.”
“Unacceptable emissions shall be cause for project shutdown until corrections to the containment are made. Visible emissions shall be determined in accordance with 40 CFR 60, Method 9, and shall not exceed one minute.”
As in Example 3, both of these statements are from the same section of the same specification. However, in this example the consequences could be more severe. There are actually two, and potentially three, separate issues at play here.
First, we have contradictory requirements regarding the acceptance criteria for visible emissions. Are no visible emissions allowed or are emissions of up to one minute acceptable? Obviously this is a huge difference and could have an impact on the project schedule as a result of downtime to make repairs to the containment or ventilation systems.
The second issue, based on the assumption that the second statement above is correct and visible emissions are allowed, relates to emissions not exceeding one minute. The specification has not defined the time frame over which the one minute of emissions is allowed. Is it one minute per hour? One minute per day? And the frequency of the assessments has not been defined — once per hour, four times per day? Again, the impact could be significant.
The third issue relates to who is actually responsible for conducting the visible emission assessments. The first statement appears to place the responsibility on the Engineer while the second statement avoids defining the responsibility entirely. This may be cause for concern on several fronts.
The specification requires that emissions be evaluated using EPA Method 9 which necessitates that the observer attend a licensed training course to become certified to perform the assessments using the opacity method. This training is very challenging to successfully complete. Will the Engineer have field staff members that hold this certification? If not, what is the timeline for attending and completing the training?
If the Engineer has the responsibility to perform the emission assessments, it will require that the project be staffed almost continuously, or at the very least during dust-producing activities. Does the Engineer have field staff with availability to accommodate this assignment? Oftentimes, field engineers have many responsibilities on a project and firms can rarely dedicate staff to a single assignment.
A better approach would be to have the Contractor perform the required daily visible emission assessments in a quality control capacity, with the Engineer providing quality assurance (i.e., verify that emissions monitoring is being performed by a certified individual and that it is being performed according to the governing method). Also, consistent requirements for the level of allowable visible emissions should be included.
“A Noise Reduction Plan shall be prepared by a qualified Technical Representative of the sound wall material supplier. Noise monitoring measurements shall be taken by trained, qualified personnel.”
These two sentences seem straightforward, right? Not so. Because the qualifications of the Technical Representative and the personnel conducting the actual noise monitoring are undefined, the Contractor is left to use his or her own judgement as to what the specifier means by a “qualified” technician, which may lead to a misinterpretation of what the specifier had envisioned. As with the other examples presented, this ambiguity can lead to costly change orders. Envision a scenario where a Contractor provides what they believe to be a “qualified” noise monitoring technician and this individual conducts noise monitoring on the project for the specified period of time. The Owner has never approved this individual (another set of issues entirely) and so now all of the data collected by this technician may be called into question or deemed invalid. In this scenario, costs to the Contractor might include additional training on how to perform noise sampling or the hiring of a third-party firm to conduct the sampling. In this scenario, where does the Owner stand if there are public complaints lodged related to community noise exposures and the only data on hand is that collected by an unqualified technician? Each of these issues could have been avoided if the specification defined what was meant by a “qualified” technician.
“Conduct background ambient air monitoring daily for a period of three days prior to blasting.”
Here is another seemingly straightforward specification requirement except that the number of locations wasn’t defined. For the sake of argument, let’s say that the specifier indicated (using an addendum) that background monitoring was to be conducted at three locations for a period of three days. This addendum appears to tighten the requirement. Now read the requirement again. How many different locations and for how many days is the specifier expecting background ambient air monitoring to be conducted in this scenario? Is the specification requiring one day of background monitoring at three different locations? Or maybe it’s requiring three days of background sampling at three different locations? This misinterpretation could have been avoided if the specification language had been a little more descriptive.
Here’s how the scenario actually played out during the project. The Owner expected that the Contractor would conduct three days of background monitoring at three different locations. The Contractor interpreted the requirement to be one day of background monitoring at three different locations. The Contractor’s argument was that they did three days of background monitoring, and at three different locations. They assumed that they had met the requirements of the specification and refused to perform any additional background monitoring. The Owner ultimately contracted with a third party to perform the additional two days of monitoring at each location.
“The Contractor shall thoroughly vacuum, wash or otherwise decontaminate reusable items prior to removal from the project site. If adequate cleaning is not possible, the materials shall be treated as waste and tested and disposed of properly.”
In this example, what will the criteria be for determining whether or not the materials have been adequately cleaned? Will a simple visual observation for evidence of visible dust be adequate? If so, who will conduct the visual observation? Or maybe dust wipe sampling of horizontal surfaces is the best approach and if so, what acceptance criteria will be used? As written, the word “adequate” has the potential to become a source of dispute, as it is relative.
“Submit a written containment system design plan which clearly describes the proposed containment system applicable to the intended removal method and in accordance with SSPC-Guide 6.”
While the requirement makes reference to SSPC-Guide 6, it doesn’t specify the classification of containment, instead leaving that responsibility entirely up to the Contractor. There’s nothing inherently wrong with this approach, but it makes comparing the costs of containment system installation and maintenance quite challenging when evaluating bids. For example, Contractor A may have proposed an SSPC Class 1A containment system with rigid materials and a flexible support structure while Contractor B chose to propose an SSPC Class 3A containment system. Without having to account for negative pressure and air movement within containment, the Class 3A will undoubtedly have a much lower price tag than the Class 1A containment proposed by Contractor A. However, with open seams and lack of a ventilation system, the Class 3A containment will likely result in a much higher level of emissions which could lead to a high exceedance of ambient air and visible emission acceptance criteria, and ultimately to a greater number of project shutdowns to make corrective actions.
A better approach in this situation would be to specify the level of containment so that the decision of which classification system is not left to the Contractor and a more direct comparison of containment installation and maintenance costs can be made.
“Laboratory analyses for all waste stream and environmental samples shall be conducted by an EPA-certified, independent laboratory with an approved Quality Assurance Plan. Laboratory analyses for worker monitoring and regulated area samples shall be conducted by an American Industrial Hygiene Association metals-accredited laboratory.”
In the first sentence, the specification indicates that the laboratory must be EPA-certified and have an approved quality assurance plan. There are two sources of dispute in this statement. First, to the best of the author’s knowledge, the EPA only certifies laboratories for analysis of drinking water. The most common accreditations for laboratories performing analysis of environmental or waste samples are the Environmental Laboratory Accreditation Program (ELAP), the National Voluntary Laboratory Accreditation Program (NVLAP) and the National Environmental Laboratory Accreditation Conference (NELAC) — none of which are administered by the EPA. Additionally, there are a number of states that have their own laboratory accreditation programs. Is it the intent of the specifier to have the environmental samples analyzed by a state-accredited laboratory?
The second potential area of dispute is the requirement of using a laboratory that has an approved quality assurance plan. There are agencies including the International Organization for Standardization (ISO) and the American Association for Laboratory Accreditation (A2LA) that audit quality assurance plans as part of laboratory accreditation. Which agency is the specifier requiring? In order to maintain ELAP, NVLAP or NELAC accreditations, the laboratory must maintain a quality assurance plan that meets the requirements of the accrediting agency. In this example, the best approach would be to simply specify the required laboratory accreditation — if the laboratory has this accreditation then it already has an acceptable quality assurance plan.
The highlighted reference was pulled from a specification section titled “Waste Handling and Management.” The second sentence includes laboratory accreditation information related to the analysis of worker monitoring and regulated area air samples. When someone is looking for the qualifications of the laboratory responsible for analyzing air samples, the last place that they would consider looking is in a specification section titled “Waste Handling and Management.” Misplaced or hidden requirements such as this can lead to costly disagreements or in this particular example, call into question the laboratory results. It is always good practice to review the specification from a big-picture perspective. In this example, the language related to the qualifications of the laboratory would have been better located in the section of the specification related to qualifications.
“If the project activities increase the heavy metal content in soil to more than 20 percent above the pre-job geometric mean or 100 percent at any one location, return the site to the pre-job levels.”
Depending on your interpretation, this statement in the specification may require small-scale cleanup at any one location or it may result in full-scale site remediation. For example, let’s say that six pre-project soil samples were collected and that five of the six post-project sample results indicated slightly elevated levels above pre-project concentrations, but not greater than 20 percent. One of the six post-project sample results indicated a more significant elevation in the level of contamination over the pre-project concentration causing the post-project geometric mean to exceed the pre-project geometric mean by more than 20 percent. Does this mean that the Contractor has to return the site to pre-project levels at all six locations or just the one location where the elevated concentration occurred? Similarly, if one of the six samples indicated a 100-percent increase over pre-project concentrations, is cleanup of the entire site required or just the one location?
Another issue in play here is that two different means of evaluating sample results are being utilized. When comparing post-project results to the 20-percent-exceedance criterion, the geometric mean for all the samples is calculated. But when comparing post-project results to the 100-percent-increase criterion, it is assumed that a strict comparison between the pre-project and post-project results is being performed on a location-by-location basis and a comparison of geometric means is not being made.
There is no license, certification or other prerequisite for preparing lead paint removal specifications. And the objective of SSPC’s Supervisor/Competent Person Training for Deleading of Industrial Structures (C3) course is to train supervisors on how to manage the lead hazard on a project, including worker and environmental protection, and waste management. That is, it focuses on interpreting project specifications, not preparing them. Preparing specifications and associated contract documents is not a simple task and it takes years of practice to become proficient. Each of the examples presented in this article illustrates the need for clearly defined, concise, non-contradictory specification language. When the language is hidden or misplaced, vague, open to differences in interpretation or contradictory, the associated consequences can cause project delays, costly change orders, and invalid, meaningless data or results. When preparing specifications or special technical provisions for a project, put aside any “pride of authorship” and have one of more reviewers challenge the documents while they are in draft form. It is better that they discover discrepancies before the work is bid, rather someone else discovering them afterwards. JPCL
ABOUT THE AUTHOR
Dan O’Malley is the manager of the environmental, health and safety (EH&S) department and the client advocate for the professional services business unit of KTA-Tator, Inc., where he has been employed for over 21 years. In his position as EH&S department manager, he reviews and develops safety and health programs, assists contractors in obtaining SSPC certification, develops specifications for removal of coatings containing lead, reviews contractor submittal packages, performs ambient air monitoring activities and consults on industrial hygiene and safety issues. In his role as client advocate, O’Malley serves as KTA’s liaison throughout the client lifecycle ensuring an exceptional client experience. He is an SSPC C3 Supervisor/Competent Person for industrial deleading projects and is also a licensed primary instructor for the C3 and the C5 refresher courses. O’Malley holds a Bachelor of Science degree from the Pennsylvania State University.