Sunday, March 28, 2010

Contracts with Subcontractors-Lead-Based Paint Renovation, Repair and Painting Law

  1. Make sure you have written contracts with subcontractors.
  2. Include an indemnification clause where the subcontractor is liable for his portion of the work that requires lead containment procedures. If the general contractor is sued, he wants to require that the subcontractor has to reimburse him for his attorney’s fees and costs in defending himself against a suit that is based on the work performed by the subcontractor. The subcontractor would agree to be liable for any judgment that is a result of the work that he performed.
  3. The contract must clearly spell out the subcontractor’s scope of the work so everyone understands the apportionment of responsibility.
  4. Never hire subcontractors who are not certified firms and renovators with the EPA.
  5. Make final payment to subcontractors contingent upon completion of all documentation (including photographs and records of on the job training) required by the EPA.

Wednesday, March 24, 2010

Contract Provisions for the Lead Paint Law

Once a firm is certified and it has trained its workers, it has taken almost all of the necessary steps to stay in compliance with the Lead-Based Paint Renovation, Repair and Painting Program Rule. A contractor should try to protect himself as much as possible from potential claims against him for lead paint injury. One way to protect oneself is by inserting clauses into contracts that address the lead paint law. With homeowners, the contractor will want the homeowner to acknowledge he has received the information booklet, that the firm has shown the homeowner its certification, inquired whether there are children under six or pregnant women at the premises, and whether any children in the house have tested positive for high lead levels. General contractors will want indemnification clauses where there subs will pay for the costs of defense for any claims brought as a result of the subcontractor’s work. They should also make payment contingent upon following the lead containment procedures and maintaining proper documentation. Contractors are advised to consult with their insurance provider to determine whether they should purchase pollution insurance.

The EPA has quite a bit of helpful information on its website:

Monday, March 22, 2010

Lead Paint Training

The actual training is being offered by a number of different trainers that have been certified by the EPA. One can find a list of certified trainers by going to the EPA’s website. The cost of the training ranges from approximately $100-300.00. The training consists of an eight-hour training with a test at the end. It teaches the lead containment procedures (sealing off the room with plastic, using a HEPA vacuum to clean up at the end of the day, etc.) as well as how to coordinate the work most effectively and maintain proper documentation. Those who are grandfathered in from a previous lead training will have to do a four hour-training.

Saturday, March 20, 2010

Becoming a Certified Renovator Under the Lead Paint Law

What is involved in becoming a certified renovator? The certified renovator is responsible for seeing that the containment procedures are followed. He or she has to be on site at three stages of the project: when signs are posted, when the work-area containment is being established and when the post-renovation cleaning verification (dust wipe test) is performed. The certified renovator must be reachable by cell phone at all other times. In addition, anyone who works at the site who will be disturbing lead paint must receive on the job training (OJT) for their particular duty that is compliant with the requirements of the rule. The certified firm will need to be prepared to demonstrate the type of training that the workers have received for their particular task.

Friday, March 19, 2010

Contracts with Homeowners-The Lead-Based Paint Renovation, Repair and Painting Law

  1. Provide homeowners with a checklist that verifies that they have received the Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools pamphlet, they have seen the contractor’s firm and renovator certification, and they understand that the certified renovator will be on site when signs are posted, when the work-area containment is being established and when the post-renovation cleaning verification (dust wipe test) is performed. The certified renovator will be reachable by cell phone at other times. Consider whether to give your cell phone number to the homeowner.
  2. Let homeowners know that any requests for testing, abatement, or third-party cleaning verification will result in a written change order that that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
  3. Inform homeowners that any conditions that affect containment procedures (high winds, prior lead dust and paint chips at the site) will result in a written change order that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
  4. Even if homeowners say that no children under 6 or pregnant women are present in the home, or the home was built after 1978, the contractor should exercise due diligence and check records at the Registry of Deeds or the town tax assessor’s office to verify the date of construction. They should also make a reasonable inquiry regarding visitors, ages of children living outside the home who visit frequently and may be pregnant, etc.
  5. Remove “broom clean condition” clauses from your contract.

Thursday, March 18, 2010

The Lead-Based Paint Renovation, Repair and Painting Program Law-Legal Issues to Consider

  1. Apply for certification with the EPA now. If you are not certified as of April 22, 2010, you cannot do work that disturbs lead paint in target housing.
  2. Contractors cannot contract away liability from enforcement by the EPA. You cannot shield yourself from liability. All contractors and subcontractors are responsible for following the Lead-Based Paint Renovation, Repair and Painting containment procedures.
  3. The Lead-Based Paint Renovation, Repair and Painting Program Law is a federal law. That means that claims brought under that law can be brought in federal court.
  4. Even if you have an arbitration clause in your contract, it will not apply to a lead paint claim because the plaintiff would be the child or a pregnant woman who is not necessarily a party to the contract. Therefore contractors could be subject two legal proceedings at the same time.

Wednesday, March 17, 2010

Under the Lead Paint Rule, Certain Activities are Prohibited

Contractors should also be aware that there are activities which are absolutely prohibited. They are as follows:

The final rule prohibits or restricts the use of certain work practices during regulated renovations. These practices are open flame burning or torching of lead-based paint; the use of machines that remove lead-based paint through high speed operation such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblasting, unless such machines are used with HEPA exhaust control; and operating a heat gun above 1100 degrees Fahrenheit. These are essentially the same practices as are currently prohibited or restricted under the Lead-based Paint Activities Regulations, 40 CFR 745.227(e)(6), with the exception of dry hand scraping of lead-based paint. While this final rule and EPA’s Lead-Based Paint Activities Regulations do not prohibit or restrict the use of volatile paint strippers or other hazardous substances to remove paint, the use of these substances are prohibited for use in poorly ventilated areas by HUD’s Lead Safe Housing Rule and they are regulated by OSHA.

Tuesday, March 16, 2010

Opting-Out of the Lead Paint Law is not an Option for Homeowners

Contractors should know that an opt-out provision will no longer be available, so homeowners cannot agree to waive their rights under the law. Even having homeowners certify that there are no pregnant women or children under 6 in the facility may not provide full-proof protection against a future claim. For that reason, contractors should do some due diligence of their own and document all steps taken in order to stay in compliance with the law. If the work is going to be done on a post 1978 home, the contractor will want to obtain independent confirmation from the town or registry of deeds that the house was really built at that time. If there are no children present, the contractor should be on the alert for children who may appear regularly at the premises and issue a “change work order” if the children are there frequently enough to activate the requirements of the rule. Finally, if there are females who could be pregnant who frequent the household, the contractor might want to be better safe than sorry and follow the containment procedures.

Monday, March 15, 2010

Lead Containment is not Lead Abatement

An interesting aspect of the Rule is that the containment procedures do not require or even encourage lead testing. Although lead testing can be requested by the homeowners, my understanding is that the ramifications of having high lead levels documented in one’s home can be far-reaching, including being required to perform a complete abatement, having trouble obtaining a mortgage, and issues regarding disclosure when selling the home.

Tuesday, March 02, 2010

Lead-Based Paint Renovation, Repair and Painting Program Rule

As promised, I have been spending the last few weeks learning about the new Renovation, Repair and Painting Program that is going into effect on April 22, 2010. Contractors are scrambling to become certified and make themselves familiar with the law's requirements. It is my responsibility to read the law and try to predict where the legal issues will arise so that construction companies can protect themselves.

The first question is, in which situations does the Lead-Based Paint Renovation, Repair and Painting Program Rule apply? Directly from the EPA’s literature on the subject:

The Toxic Substances Control Act (TSCA) addresses lead-based paint hazards created by renovation, repair, and painting activities that disturb lead-based paint in target housing and child-occupied facilities. ‘‘Target housing’’ is defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom (studio for example) dwelling. Under this rule, a child-occupied facility is a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day’s visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may be located in public or commercial buildings or in target housing. In addition, it applies in residences where pregnant women reside.

It applies to interiors where more than 6 sq. ft. of painted surface or 20 sq. ft. of exterior painted surface will be disturbed.

The Rule does not apply to those who are not doing work for compensation, so homeowners renovating their own homes are exempt. It does not apply to post 1978 buildings, new construction, minor repairs or facilities not occupied by children under 6 or pregnant women. It also would not cover minor repairs or work that does not disturb painted surfaces. Contractors need to be careful however, because they cannot simply rely on homeowner assurances that there are no children under 6 or pregnant women who reside at the premises, or that the home was built after 1978 if there seems to be evidence to the contrary.

Remodelers-Get Your Application for Certification in Now!

In order for a General Contractor to work on a renovation project under the Lead-Based Paint Renovation, Repair and Painting Program Rule at a Target Housing, the contractor must apply for firm certification. Given that the law goes into effect on April 22, 2010 and the EPA has up to 90 days after receiving a complete request for certification to approve or disapprove the application, all firms intending to do renovations should apply now so they will not be faced with having to cease work if certification is not received by that time.