EPA Requires Contractors To Obtain Certification Before Working in a Structure Containing Lead Paint

Beginning on April 22, 2010, federal law will require contractors performing renovation, repair or painting that disturbs paint in homes, child care facilities, or schools built before 1978, to be certified under the Environmental Protection Agency’s (EPA) new Renovation, Repair and Painting Rule (RRP). Under this new rule, contractors are required to follow specific work practices to reduce the exposure of occupants and workers to lead and must obtain certification through an EPA approved program before they will be permitted to proceed with the work.  Contractors, renovation companies and even DIY property owners should take note that failure to meet the new certification and training standards will result in significant fines of up to $37,500 per violation.

Lead-based paint was used in more than 38 million homes until it was banned for residential use in 1978, with the concern that lead exposure can cause reduced IQs, learning disabilities, developmental delays and behavioral problems in young children. The most common activities that can produce hazards from exposure to lead-based paint include sanding, cutting, and demolition resulting in hazardous dust and paint chips which can be harmful to both adults and children. To protect against these risks, the EPA implemented its new rules.

The Renovation, Repair and Painting Rule requires that any person or firm that performs renovations for compensation be certified, including contractors, home renovation companies, window replacement contractors as well as plumbers, electricians, painters, maintenance workers and landlords who perform repairs and renovations themselves. The RRP applies to any residential property built before 1978, or any public or commercial building built before 1978 where children under the age of 6 are present, or potentially could be present, on a daily basis. To become certified, businesses and individuals must submit an application provided by the EPA (http://www.epa.gov/lead/pubs/renovation_firm_example.pdf) and pay a fee. In addition, at least one person at each applicable worksite must be an “Individual Certified Renovator.”  Contractors can become certified after completing an eight (8) hour accredited renovator training course.  A list of EPA accredited Certified Renovator trainers can be found at: http://cfpub.epa.gov/flpp/searchrrp_training.htm.

Once the rules go into effect, homeowners, child care providers and schools must acknowledge that they received the EPA’s pamphlet entitled “Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools” (http://www.epa.gov/opptintr/lead/pubs/renovaterightbrochure.pdf) from their contractors who are performing renovations to their property. In doing so, they will be required to sign a statement regarding the EPA’s Lead Renovation, Repair and Painting Program, indicating that they agree to acknowledge whether the contractor and its subcontractors hired to perform renovations are required to use work practices contained in the EPA’s new rule.

The new regulations, and especially the property owner’s ability to “opt-out” under certain circumstances, could spell disaster for contractors and home owners alike.  To begin with, many contractors do not yet know that the new regulations even exist and certainly have not yet obtained the proper certification to proceed with the work.  This will undoubtedly leave a number of contractors upset to receive fines once the EPA, or whatever local agency is ultimately tasked with enforcing the new regulations, begins checking job sites and issuing citations and fines.  In addition to fines, contractors should also be concerned about whether failure to be properly certified to perform the work will cause problems down the line if they are not paid.  As many contractors have learned the hard way, failure to be properly licensed can in many instances result in forfeiture of your right to commence legal action to collect payment or even to file a mechanic’s lien.  It remains to be seen whether owners and their attorneys will begin to take the position that since certification is mandatory under the new rules that it is tantamount to a licensing requirement and is a prerequisite to payment for the work.

Another potential problem area will likely be the impact that the new regulations have on insurance.  Contractors and other construction professionals may face denials of coverage if insurance companies find out that work was done without the proper certification.  Insurers may also audit policies and impose steep additional premiums if it is discovered that the contractor, or any of its subcontractors, was not properly certified to perform the work pursuant to the EPA’s new rules.  From the home owner’s standpoint there could be an issue of the insurer refusing to provide coverage in the event of a lead related injury if the home owner is discovered to have “opted-out” of the new rules and allowed the contractor to proceed without following the new guidelines.

Please contact us at Kushnick Pallaci PLLC for more information on how the new EPA regulations may impact you.