Massachusetts Builders Blog

So am I.  Really.  All this talk about RRP and it feels like nothing's changed. The threatened fines have not really transpired, and today doesn't feel any different from yesterday.  I can speak about Massachusetts, but    Wisconsin ,   Iowa ,   North Carolina ,   Mississippi ,   Kansas ,   Rhode Island , Utah ,   Oregon ,   Massachusetts , and   Alabama  now have their own state's laws, and I am not sure what is happening there in terms of enforcement .  RRP has done one good thing, though.  It has encouraged contractors to review all of their business practices and make sure that their contracts protect them. Quite honestly, I tried to market my legal services to contractors reviewing their contracts a number of years ago.  I could not get anyone interested.  Business was booming and contractors had a backlog of work.  Then, two things happened.  The construction industry became one ...

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 ...

I spent the better part of 2010 learning about the EPA's Renovation, Repair and Painting (RRP) rule and helping contractors understand the law and protect themselves with well-drafted contracts.  I made more presentations than I can count to contractors and construction companies in the northeast, and I heard about their pain:  RRP compliance would cost them a lot more money.  Homeowners had not heard anything about the law and were appalled when they learned that their renovation projects would cost more.  Illegal contractors were undermining their ability to get jobs by failing to get certified and refusing to follow RRP. At the same time, however, I think that most contractors would agree that not just anyone should be able to call himself a contractor. Contractors should have training and experience.  They should know about OSHA and other safety regulations and use them.  As power tools have developed over time with more safety features built in, cons...

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 w...

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 a...

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.

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.

http://freestoneblogs.com/nariradio/2010/10/01/10-1-2010-legal-ramifications-of-lrrp/

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 tha...

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 a...

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