Wednesday, May 26, 2010

The Massachusetts Lead Paint Law Hearing-Audience Commentary

The testimony at the hearing conducted by the Division of Occupational Safety raised a lot of important issues and suggestions for the Massachusetts Lead Law.  Commentary included the following:

1.  Create a forum for dialogue where contractors can ask questions without fear of reprisal.
2.  How does a contractor handle a conflict between OSHA and the RRP Rule?
3.  Provide a means for looking up lead-paint certification online.
4. How will liability be allocated between subcontractors and contractors?
5. Why hasn't the huge rental-housing community been targeted?
6.  Is power-washing allowed under the MA law?
7.  It is important to allow access and training for apprentices and students under the age of 18.
8.  MA should lobby with insurance companies to include lead coverage in their policies.
9.  A task force of trade professionals should be created to address lead and other issues.
10.  This law is overly onerous for the small contractor.
11.  Contractors should not be put in the position where they are the ones educating homeowners about this law.
12.  Those with high lead levels should have to present their claims to a tribunal before filing suit.  If the contractor can show that he followed the lead-safe practices, then the suit should not be allowed to go forward.
13.  Most were in favor of Massachusetts taking over administration of the law.  Having the MA law in effect would prevent suits from being filed in federal court and would keep adjudication of construction and lead claims in Massachusetts courts.
14.  Finally, homeowners and contractors alike should be held accountable for trying to circumvent the law.

Tuesday, May 25, 2010

The Lead-Based Paint Renovation, Repair and Painting Program Law-A Letter to Homeowners

Homeowners who are considering doing a renovation must know that if their homes were built prior to 1978, their contractors are required to follow certain procedures if they are going to disturb more than 6 interior square feet of paint or 20 exterior square feet of paint.  This law requires that the general contractor must become certified with the Environmental Protection Agency (EPA), and that the contractor himself take an eight-hour class in order to become a certified renovator and learn lead-safe practices that contain lead dust.

Although the EPA claims that it will be doing a publicity campaign to inform homeowners about the Renovation, Repair and Painting Rule (RRP Rule), I have heard very little about it outside of construction circles.  So, I feel that it is important for me as a construction lawyer to educate the public about this rule.

First of all, the preparation and education needed to comply with the law are going to cost the contractors more money.  This will be reflected in an increase in the cost of jobs.  The contractors must pay at least $300.00 to certify with the EPA, $200-$300 on average for the certified renovator training, the costs of training their workers and/or subcontractors, and additional costs for materials (plastic, protective suiting, masks, duct tape) and very expensive HEPA vacuums.  

Homeowners who ask contractors to circumvent these practices and operate in violation of the law are doing these contractors an extreme disservice.  This law is in place to protect homeowners and their families (and more particularly, pregnant women and children under six) and the contractors from potentially toxic lead dust.  Lead poisoning is a real problem with potentially tragic results, and following the lead-safe practices has been shown to significantly reduce the exposure to lead for all involved.

Please understand that your contractor is doing the right thing by giving you a lead-paint brochure and following the rules.  He could also face significant fines ($37,500.00 per infraction, per day) for failing to comply with this law.  So, please do not blame the messenger.  Respect your contractor and do not ask him to break the law.  

Monday, May 24, 2010

Hearing with the Division of Occupational Safety about Massachusetts taking over the RRP Rule

The Massachusetts Division of Occupational Safety held a Public Hearing today to take comments on new regulations related to their intent to seek authority in administering and enforcement of the EPA RRP program from the EPA here in Massachusetts.  I was there, along with the Presidents of NARI and the Homebuilders Association of (Western) Massachusetts, Sean McCadden (whose blog I mention frequently), contractors, lead testers and others.


The conversation was thoughtful and informative.  I will report about it over a couple of posts.  First of all, Massachusetts has published emergency regulations to the Central Register that will hopefully become a permanent law within the next few months.  The public was invited to make comments and suggestions regarding changes to the law.


The state is also evaluating whether it will self-certify with the EPA and take over administering the law.  There were about twenty-five people present, and most seemed supportive of the notion that Massachusetts should take over administration of the lead law.


Speakers commented on the current difficulties facing contractors who are forced to educate homeowners about the RRP Rule.  They are concerned about the fact that there is an "underground" population of contractors who are willing to circumvent the rule and charge less money because they offer prices that do not include the lead containment procedures.  In addition, these contractors have not incurred the additional costs involved in certifying their companies and firms with the EPA and becoming certified contractors.


The audience complimented MA on having drafted a well thought-out law that is much clearer than the RRP rule.  The biggest concerns were enforcement and education.  The need for enforcement was emphasized so that the "good" contractors would not be penalized for following the rules by being outbid by "illegal" contractors.  If enough contractors are fined for not following the practices and becoming certified, then this would hopefully serve as a deterrent.  


The need for education is apparent because the lack of publicity regarding the implementation of the rule has resulted in homeowners having no idea that the lead containment procedures are required, and the contractors are faced with educating the homeowners as well as having to charge more for their services.  Homeowners are already asking contractors for an alternative price without the lead-safe practices, which creates unsafe conditions for both the contractors and the homeowners and their families.


These were some of the issues raised at the hearing today.

Wednesday, May 19, 2010

The RRP Rule in Plain English

The Lead-based Paint, Renovation, Repair and Painting Rule is causing contractors to panic. It seems as though every time we get a handle on what is required, there is a new or proposed change in the law. In Massachusetts it is particularly confusing because the state has published its own emergency regulations to the Central Register which could become law ninety days from April 16th. If the state law is approved by the Environmental Protection Agency, then the Division of Occupational Safety will take over administering the State law, and contractors will have to learn a new set of rules that will be as strict or stricter than the current rule.

In addition, the Opt-Out is now expiring as of July 6, 2010, and there is a new notification requirement that goes into effect on that day as well.  Contractors will now be required to submit their lead documentation to the homeowner within thirty (30) days of completing the renovation, or upon final invoice.  The EPA's Sample Recordkeeping Checklist will suffice for that purpose: http://www.epa.gov/lead/pubs/samplechecklist.pdf.


Since the MA rules have been published, it is highly likely that they will go into effect in the middle of July.  There is a public hearing on the new rules on May 24, 2010, and I plan to attend.  If you have opinions regarding the new law, you should go as well.



In accordance with M.G.L. c. 30A, § 2, the Massachusetts Division of Occupational Safety will hold a Public Hearing to receive comments on proposed amendments to its deleading regulation, 454 CMR 22.00, which include new provisions for renovation, repair and painting work conducted in target housing and child-occupied facilities, and to 801 CMR 4.02 with regard to licensing fees charged to Lead-Safe Renovation Contractors and providers of Lead-Safe Renovator-Supervisor training.  The proposed regulations are authorized by M.G.L. c. 111, §§ 189A through 199B and M.G.L. c. 149, § 6 for 454 CMR 22.00; and M.G.L. c. 7, § 3B and M.G.L. c. 111, § 197B(e) for 801 CMR 4.02 454 (16) and (18).  A hearing will be held on Monday May 24, 2010, from 10:00 a.m to 1:00 p.m. in the South Street Amphitheater of the UMass Medical School at 333 South Street, Shrewsbury, MA



If you see me there, please come say hello!

Wednesday, May 12, 2010

Notification Requirements as of July 6, 2010


When the final invoice for the renovation is delivered or  within 30 days of the completion of the renovation, whichever is  earlier, the renovation firm must provide information pertaining to  compliance with this subpart to the following persons:     (i) The owner of the building; and, if different,     (ii) An adult occupant of the residential dwelling, if the  renovation took place within a residential dwelling, or an adult  representative of the child-occupied facility, if the renovation took  place within a child-occupied facility.     (2) When performing renovations in common areas of multi-unit target housing, renovation firms must post the information required by this subpart or instructions on how interested occupants can obtain a copy of this information. This information must be posted in areas where it is likely to be seen by the occupants of all of the affected units.     (3) The information required to be provided by paragraph (c) of this section may be provided by completing the sample form titled ``Sample Renovation Recordkeeping Checklist'' or a similar form containing the test kit information required by Sec.  745.86(b) (1) (ii) and the training and work practice compliance information required by Sec.  745.86(b) (6).     (d) If dust clearance sampling is performed in lieu of cleaning verification as permitted by Sec.  745.85(c), the renovation firm must  provide, when the final invoice for the renovation is delivered or  within 30 days of the completion of the renovation, whichever is  earlier, a copy of the dust sampling report to:     (1) The owner of the building; and, if different,     (2) An adult occupant of the residential dwelling, if the  renovation took place within a residential dwelling, or an adult  representative of the child-occupied facility, if the renovation took  place within a child-occupied facility.     (3) When performing renovations in common areas of multi-unit target housing, renovation firms must post these dust sampling reports or information on how interested occupants of the housing being renovated can obtain a copy of the report. This information must be posted in areas where they are likely to be seen by the occupants of all of the affected units.

Tuesday, May 11, 2010

Notification Rule If Dust Wipe Test is Performed-From the EPA


As of July 6, 2010, final rule requires that, if dust clearance is  performed in lieu of cleaning verification, the renovation firm provide  a copy of the dust wipe sampling report(s) to the owner of the building  that was renovated as well as to the occupants, if different. With  respect to renovations in common areas of target housing or in child- occupied facilities, EPA is also requiring that these records be made  available to the tenants of the affected housing units or the parents  and guardians of children under age 6 using the child-occupied  facilities. Dust sampling reports may be made available to these groups  in the same way as training and work practice records, by providing  information on how to review or obtain copies in individual  notifications or on posted signs.

Saturday, May 08, 2010

New RRP Amendment Requires Providing Documentation to Homeowners and/or Occupants



This final rule requires that, when the final invoice for the renovation is delivered, or within 30 days of the completion of the renovation, whichever is earlier, the renovation firm must provide information demonstrating compliance with the training and work practice requirements of the RRP rule to the owner of the building being renovated and, if different, to the occupants of the renovated housing or the operator of the child-occupied facility. The Sample Renovation Checklist, http://www.epa.gov/lead/pubs/samplechecklist.pdf can be used for this purpose.

For renovations in common areas of target housing, the renovation firm must provide the occupants of the affected housing units instructions on how to review or obtain this information from the renovation firm at no charge to the occupant. These instructions must be included in the notice provided to each affected unit under 40 CFR 745.84((2(i) or on the signs posted in the common areas under 40 CFR 745.84(b)(2)(ii).

Under this final rule, the renovation firm is required to provide interested parents or guardians of children using the child-occupied facility instructions on how to review or obtain a copy of these records at no cost to the parents or guardians. This could be accomplished by mailing or hand delivering these instructions, or by including them on the signs posted under 40 CFR 745.84(c)(2)(ii).