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

Lead-based Paint Renovation , Repair and Painting Rule

The Renovation, Repair and Painting Program went into effect on April 22, 2010. Contractors were scrambling to become certified and make themselves familiar with the law's requirements. Now contractors are waiting to see if the law is going to be enforced and if companies will be fined for violations. It is my responsibility to read the law and to predict where the legal issues will arise so that construction companies can protect themselves.  It is time to start the new year right and have your contract reviewed for compliance with state and federal law with clauses that protect you and your business.

By now, most contractors know that RRP applies to all pre-1978 homes where more than 6 sq. ft. of painted surface or 20 sq. ft. of exterior painted surface will be disturbed.  From the EPA:

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.

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 public or commercial facilities not occupied by children under 6. 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 the home was built after 1978 if there seems to be evidence to the contrary.

Contractors who work on pre-1978 homes are required to certify their firms with the EPA, and take the 8-hour certification course if they are going to be disturbing lead paint themselves.  I recommend that they keep documentation of the lead-safe practices for more than three years, because the statute of limitations for a lead-poisoned child does not even start running until that child reaches the age of eighteen.

So, even if the law is not being enforced, protect yourself and your family by following the lead-safe practices.     Let the homeowner know that you are a professional, and you intend to follow the law and protect them as well.

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