As I sit down to write my annual list of resolutions for contractors, I am amazed at how much things changed in 2020. Construction was going well and then, in March 2020, COVID-19 hit. At first, we thought it was going to be a disaster for the construction industry. States, cities and towns shut down projects and many applied for PPP loans. Then, something amazing happened. Construction was considered an essential service and everyone was back to work.  That said, the work world changed: companies were donating their PPE to frontline workers, COVID-19 protocols had to be followed and paperwork had to be filed. Everyone was scrambling to figure out how to comply and keep their businesses going. So, you may or may not ask, what was I, as a construction lawyer doing? I spent March and April thinking about the new risks contractors/construction companies were facing and developing contract clauses to protect the industry. I wrote a number of blog posts with clauses to add to your contra

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.

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