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Litigation-I Win, You Lose vs. Mediation-Win/Win

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  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting mutually beneficial solutions.   It res
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RRP and Individual Liabiliy

A number of months ago, when I was interviewed by NARI (National Association of the Remodeling Industry) radio, I was asked if a contractor could be held liable for he $37,500 fine per infraction, per day that can be enforced by the EPA for RRP violations.  It has taken me quite some time to get a clear answer to this question, but here is the response I received from the EPA recently: The Agency has always interpreted liability under TSCA ( Toxic Substances Control Ac t  of 1976)  to cover individuals, partnerships, corporations, government organizations, etc.  TSCA section 409 states clearly that it is unlawful for any person to fail to comply with any rule promulgated under TSCA Title IV.  Section 16 then says that any person who violates section 409 is liable for a civil penalty.  We have always interpreted "person" under TSCA to apply to both natural persons (individuals) and statutory or judicial persons (corporations).  Thus, any individual who violates a provision
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Test for Lead, and Then You're Off the Hook?

I have run into so many contractors who think they can solve the dilemma of how to handle the RRP rule by having the house tested for lead.  There are now approved lead test kits out there.  All the contractor has to do is test, and if the house if negative, proceed with the work without doing the lead-safe practices.  That's it, right? Not so fast.  Consider the following scenario: Contractor tests for lead.  Negative result.  Four to twenty-one years later, the contractor is sued because a member of the household is suffering from lead poisoning.  Contractor contacts the lead test kit company (if it is still in existence).  How does the company respond?  Will they stand by their product?  Or, will they request documentation of all of the testing procedures including where the test was conducted, how it was conducted and verifiable results?  What if they say the testing was conducted improperly, or inadequately? Why face an additional risk by doing your own testing?  If the
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The Massachusetts Prompt Pay Law

The new MA Prompt Pay Law goes into effect on November 8, 2010.  It applies to construction projects of >$3,000,000.00 and effectively eliminates the use of "pay when paid" clauses for these projects. The law details the required payment schedules for General Contractors to Subcontractors to their subcontractors and so on.  There is a nice write-up about it at Massachusetts Real Estate blog:   http://www.massrealestatelawblog.com/massachusetts-construction-prompt-pay-law-passed/ Unfortunately it does not apply to most residential construction, whereas the prompt pay laws in some other states (such as Rhode Island) do apply.
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Should a Contractor Have the Homeowner Test for Lead?

I would like to learn more about the advisability of lead testing.  Homeowners might not want their homes tested for lead, because it becomes public record, and may interfere with the sale of a home or the ability to obtain a mortgage or homeowners insurance.  In addition, I strongly advise contractors not to do the testing themselves.  Let the homeowner pay an independent company to do it.  Otherwise if the GC brings a claim against a lead testing company for a false negative, the company might state that the GC did not use the test kit properly.  If the homeowner does have the house tested, consider refusing to do the work unless the homeowner has lead abatement work done.
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Listen to Andrea on NARI Radio Speaking about the RRP Rule

http://freestoneblogs.com/nariradio/2010/10/01/10-1-2010-legal-ramifications-of-lrrp/
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Seminar with the Division of Occupational Safety-MA Lead Law

Last week I attended a Lead Health Awareness Seminar run by the Division of Occupational Safety,  It dealt with complying with OSHA, the EPA and State Lead Regulations.  I learned a great deal about the requirements of the Occupational Safety and Health Administration as the regulations pertain to lead.  I have more to learn, but here is what I know so far: 1.  Certain activities are trigger activities that trigger the protections required by OSHA.  These protections include using setting up regulated areas, providing respirator masks, hand washing and protective clothing. 2.  Scraping lead pain t is one of many trigger activit ies . 3.  "The employer shall assure that no employee is exposed to lead at concentrations greater than fifty micrograms per cubic meter of air (50 ug/m(3)) averaged over an 8-hour period." 4.  Once a contractor has the work site tested for airborne lead dust, if the amount of lead in the air is less than 3 0 ug/m(3) (Action Level) , then co
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Why You Need a Contract with your Subcontractors-Now More Than Ever

Most of the general contractors I know have been working with their subcontractors for years.  Business has always been done on a handshake and things have mostly worked well that way.  However, thanks to the EPA Renovation, Repair and Painting Rule, times have now changed.  Although no one can contract away liability in terms of compliance with the Environmental Protection Agency, both contractors and subcontractors will not want to be held responsible for each other's work. General contractors need to have contracts with subcontractors with a very clear scope of the work to define exactly what falls within the subcontractor's purview.  If the subcontractor is going to be disturbing enough lead paint so the RRP Rule kicks in, the GC will want to make sure that the sub signs an indemnification clause stating that he will defend and indemnify (pay back) the GC for any claim against the GC for damages due to the subcontractor's work, including the cost of hiring an attorney
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Comparison of the EPA RRP Rule and the Massachusetts Lead-Safe Renovation Law

The DOS has provided us with an excellent comparison of the EPA rule and the Massachusetts law.  Here is the link: http://www.mass.gov/?pageID=elwdterminal&L=5&L0=Home&L1=Workers+and+Unions&L2=Licensing+and+Certification&L3=Lead+Program&L4=Lead+Documents&sid=Elwd&b=terminalcontent&f=dos_lead_RRP_comparison_epa_dos_rrp&csid=Elwd I would add an item.    The EPA rule requires that contractors provide the homeowner with documentation of the lead-safe practices upon final invoice or within 30 days of the completion of the renovation. I have been unable to find such a requirement in the MA Lead-Safe Renovation Rule.   I spoke with someone at DOS, and he could not find anything in the MA law either. I
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Understanding the MA Lead Law-The Fine is No More Than $5000.00!

A source of huge relief to contractors will be that the fine for noncompliance with the law has been dramatically reduced to no more than $5000.00 for an infraction.  The law states as follows: Penalties. Any entity or person who violates the provisions of 454 CMR 22.00 shall be subject to the administrative sanctions specified herein and any fines or penalties allowed pursuant to M.G.L. c. 111, § 197B(f) and M.G.L. c. 149, § 6. After reading through the various laws, the penalty structure is as follows: (2) Maximum Amounts of Civil Penalties. The maximum amounts of Civil Penalties that may be assessed under 453 CMR 9.00 are as follows: (a) A monetary penalty of not more than $1,000 may be issued for each Violation if: 1. the person, firm, corporation or other entity has not previously been criminally convicted of a Violation of M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or been issued a Civil Citation pursuant to 453 CMR 9.0
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Key Differences Between the RRP Rule and the New Massachusetts Lead Law

454 CMR 22.00: Deleading and Lead-Safe Renovation Regulations  The good news for MA contractors is that the new lead law is well-written, and very similar to the RRP Rule.  The law bridges the gap between renovation work, deleading and OSHA regulations. Since most of my readers do renovation work or new construction, I am going to set aside the rules regarding deleading.  So, what do MA contractors need to know to stay in compliance with the state law?   First of all, if you have trained as a Certified Renovator through a training  accredited   by the EPA, you are automatically a Lead-Safe Renovator Supervisor in MA.  The two certifications are equivalent. If you have already applied and received certification as a Certified Firm with the EPA, then you need to apply for a waiver to be listed as a certified firm in MA.  You can access the waiver form,  Lead-Safe Renovation Contractor Licensing Waiver   here. If you have not already applied to become certified with the EPA, you will
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Better Safe Than Sorry in Business

I don't usually link to others' blog posts, but I thought this one is worth reading.  As we say in law, you can pay me now, or pay me later, but it is usually much cheaper to anticipate issues and pay to prevent them.: http://blog.reiserlegal.com/2010/07/loyalty-what-lebron-james-teaches-about-the-importance-of-smart-contracting/
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Massachusetts Lead Law Takes Over

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Massachusetts just announced that it is taking over enforcement of the Lead Law 454 CMR 22, as of today. I know what I'll be reading this weekend!  I am going to be posting about the differences between the MA law and the federal Renovation, Repair and Painting Rule.  Here's the official state announcement: Lead Renovation, Repair and Painting Rule (RRP Rule) Effective July 9, 2010, the Division of Occupational Safety promulgated amendments to 454 CMR 22.00 (Deleading and Lead-Safe Renovation), and, in conjunction with the Executive Office for Administration and Finance, amendments to 801 CMR 4.02 454 (16) and (18) (Licensing Fees for Lead-Safe Renovation Contractors and Lead-Safe Renovator Training Providers).  The amended version of 454 CMR 22.00 can be viewed by clicking  HERE   .  The amendments to 801 CMR 4.02 454 (16) and (18) change the licensing fee and surcharges for Lead-Safe Renovation Contractors from $575 for a one-year license to $375 for a five-year license,
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Contractor Fined $784,380 for RRP Violation

EPA Cites Company $784,380 for Failing to Warn Residents of Lead-Based Paint Exposures  Jun 20, 2010 The U.S. Environmental Protection Agency recently filed a complaint and proposed a $784,380 penalty against Hanson’s Window and Construction Inc. of Madison Heights, Mich., for violations of the 1998 federal rule for failure to warn residents of potential lead-based paint exposures. EPA alleges that in May 2005, Hanson, a window installation firm, failed to provide home owners and tenants of 271 residential properties in Lansing, East Lansing, Haslett, Charlotte, Onondaga, Williamston, Holt, Stockbridge, Mason, Leslie, and Warren with required information warning residents that their construction activities could expose residents to lead. The citation is based in part on information that two children living in renovated Michigan homes had tested positive for elevated blood lead levels. The Pre-Renovation Lead Information Rule requires that renovators provide homeowners, tenants,
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Cash for Caulkers – The Definitive Guide To The Home Star Energy Retrofit Act of 2010-Part II

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We also decided to combine these retrofits into three packages that will help homeowners get the best bang for their buck. But first, let’s review the program details. Who is Eligible and How to Qualify? The Home Star bill offers two rebate programs, the “Silver Star” program and “Gold Star” program. Here are details for each: ·          Silver Star   – Unless another amount is specified in the “Rebate Amount” column above, homeowners will receive a $1,000 rebate for each retrofit listed in our table. The maximum amount of rebates paid out will be $3,000 or 50% of the total cost, whichever is lower. For example, if a homeowner spends a total of $4,000 on eligible retrofits, they will get $2,000 or 50% back as a rebate. If they spend $8,000 on eligible retrofits, they would only receive $3,000 in rebates instead of $4,000 (which would be 50% of the cost). ·          Gold Star   – To qualify for the Gold Star program, homeowners must reduce their total home energy consumption by 20%. A
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Cash for Caulkers – The Definitive Guide To The Home Star Energy Retrofit Act of 2010

This article, by Houston Neal of Software Advice , demystifies the rebates that will be available for green retrofits.  I will post the second part tomorrow: : “Cash for Caulkers” is nearly here. Last month the House of Representatives passed H.R. 5019 – also known as the Home Star Energy Retrofit Act of 2010 or “Cash for Caulkers” – to kick-start construction, create jobs and cut back carbon emissions. While the bill still needs to clear the Senate, supporters predict it will pass this summer. This is great news for homeowners and contractors alike. The bill provisions $6 billion for energy-efficient or “green” retrofits. It is expected to fund renovations for 3 million families, create 168,000 new jobs and save consumers $9.2 billion on energy bills over the next 10 years. But in order to cash in on upcoming rebates, homeowners and contractors will need to do their homework. There are 13 types of retrofits eligible for funding. Each retrofit has unique eligibility requirements and
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