Tuesday, April 27, 2010

New Documentation Requirements for Contractors

The RRP Rule is changing so frequently that it must be staggering for contractors. A new regulation is being published to the Federal Register that will take affect 60 days after publication. Shawn McCadden has the full text of the rule here:


Basically, as of the date of the final invoice, or no later than 30 days after the completion of the renovation, the contractor must present the owner and/or occupants with documentation of the lead safe practices. The EPA has a Sample Renovation Recordkeeping Checklist that can be used for this purpose. In addition, if dust clearance testing is performed, then the owner and/or occupants must be presented with the dust wipe sampling report. I will report on this more once I become more familiar with this new amendment. I will also be drafting additional contract clauses to address this new rule.

Shawn's blog spells it out in detail, and his reporting is extremely comprehensive.

Monday, April 26, 2010

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

Today I had a spirited debate on a NARI listserve about the Opt-Out provision of the RRP Rule. As others pointed out, the Opt-Out provision will be in effect for sixty days. As the EPA stated on its website:

"Q. Will EPA issue a final rule removing the opt-out and if it does when will the rule become effective?

As of April 22, 2010, EPA has issued a rule revoking the opt-out provision of the 2008 Lead RRP rule. EPA expects this rule to publish in the Federal Register within 2 weeks and anticipates that it will take effect 60 days after publication."


So, here is the reality of the situation. If you are going to do a renovation that will be completed before 60 days from now, I suppose you could theoretically have a homeowner who does not have children under 6 or pregnant women at the premises sign an opt-out clause and avoid using the lead-safe practices. However, what if the project runs over? Does it make sense to have a job going on where the procedures have not been followed and run the risk of being sued for lead poisoning?

There is a campaign starting to make homeowners more aware of the RRP rule now that it is in effect. People are going to worry more about lead poisoning and people will be inclined to have their blood tested for lead. If you are sued for lead poisoning, you will have to hire a lawyer and defend yourself and/or your company. The situation will be that much more murky if you start using the lead-safe practices 60 days from publication of the law revoking the Opt-Out.

I am going to take a stand and suggest that all firms should follow the lead safe practices no matter what. Better safe than sorry.

Thursday, April 22, 2010

Lead-Based Paint Renovation, Repair and Painting Law-Myth Busters

There is so much misinformation floating around about the law that is going into effect today; it is no wonder that contractors are confused. I will try to address some of the confusion that exists here in Massachusetts.

1. As of today, the Environmental Protection Agency is enforcing the lead paint law in Massachusetts. There is no grace period.

2. The opt-out provision for homes where there are no children under 6 or pregnant women is supposed to expire. That means there is no opt-out available for pre-1978 homes.

3. The state has published an emergency regulation to the central register as 454 CMR 22.00. The law went into effect on April 2nd, but the Division of Occupational Safety has not yet received approval from the EPA to take over enforcement and have the MA law supersede the federal law. The EPA requirement is that the MA law has to be at least as stringent as the federal law.

4. An emergency regulation expires 90 days after filing. (i.e. 90 days from April 2nd in this case.) Emergency regulations expire unless a public hearing is held and then the regulation is adopted prior to the 90 days.

So, as of now, contractors must comply with the EPA Rule. If, and when Massachusetts law takes over, I will inform my readers.

You can also learn more at http://www.shawnmccadden.com/rrpedia/

The Lead-Based Paint Renovation, Repair and Painting Law Goes Into Effect Today!

  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.
It is April 22, 2010, and the Lead Paint Law goes into effect today. If your firm has not received certification from the EPA, you cannot do work that disturbs more than 6 interior sq. ft. or 20 exterior sq. ft. of paint on pre-1978 housing. What should you do?

1. Apply for certification today at the EPA website, and stay tuned. If your application is pending there may be announcements that allow for work until certification is granted. However, as of now, you may not do work that disturbs paint!

2. Have the homeowner agree to test for lead. If lead is not found in the home, you do not have to use the lead-safe practices. Make sure the lead testing firm agrees to indemnify and defend you if you are sued. If lead is found, ask the homeowner to agree to pay for abatement before you start work.

3. Do not work on renovation projects on pre-1978 homes until you receive your certification.

4. Have a certified firm GC the project, and receive on the job training for the lead-safe procedures. If you are a certified renovator, use the lead-safe practices and document everything you do. Understand that you cannot GC the project unless you have received your certification from the EPA.

That's all I can think of for now. Remember, the fines are currently $37,500.00 per day per infraction. Do not take risks when it comes to compliance with this law.

For excellent information on the Lead-Based Paint Renovation, Repair and Painting Rule, you can also read Shawn McCadden's blog: http://www.shawnmccadden.com/